By David Rogers. May 15, 2019. BLOWING ROCK, NC –By the end, it evolved as a full semester course in civics and municipal governance for those privileged enough to witness it.
COVER IMAGE: Sue Sweeting’s chair is vacant after she was involuntarily recused from the CUP hearing. Sweeting was found to have violated state-mandated restrictions on the commissioners for quasi-judicial hearings. All photographic images by David Rogers for Blowing Rock News
May’s regular huddle of the Blowing Rock Board of Commissioners featured an almost clear docket — an appropriate term for the agenda in view of the quasi-judicial public hearing that dominated the evening. Even after (another) five and a half hours, Tuesday night’s Town Council affair was a model of efficiency given the courtroom-type procedures, including the give and take of opposing attorneys that had to run their course.
EDITOR’S NOTE: Because we interject editorial opinions and observations into this report about the May meeting of Blowing Rock Town Council and the Board of Commissioners, we are identifying our coverage as an editorial under our series, Tomorrow’s Blowing Rock.
Grand Dakota Development, LLC’s conditional use permit (CUP) application seeks Town Council approval to build a 40-room hotel, with restaurant, bar, and meeting rooms on the now all-but-vacant 0.94-acre parcel most often described as “behind Speckled Trout” or “where Cheeseburgers in Paradise use to be.” Having heard all of the evidence and well-articulated closing statements by attorneys advocating for and against the proposed “Rainey Lodge” development project, Blowing Rock’s commissioners now have another month to formulate their opinions and prepare arguments for justifying how they will vote on the CUP application.
At least at the beginning, it was a standing room only crowd of residents, business owners, and an assortment of others with an interest in the proceedings. As in the lengthy April 9th meeting of Town Council, the crowd flowed out into the Town Hall lobby — and got a firsthand look at local government proceedings rarely witnessed in Blowing Rock, even if commonplace in larger metropolitan areas. Many in the audience left by the second “break,” but even when Mayor Charlie Sellers’ gavel fell to adjourn the meeting a mere half-hour before midnight, nearly all of the Council chambers’ seats were occupied.
And it all started with what Commissioners Jim Steele and Doug Matheson separately described as one of the toughest decisions that they have ever made during multiple terms of service as sitting elected officials: the involuntary recusal of a fellow commissioner.
There are statutory restrictions on the behavior of elected officials comprising the decision-making body of a quasi-judicial public hearing, in this case, a CUP application. North Carolina law mandates that CUP applicants receive a fair hearing by an unbiased and impartial panel of decision-makers, collectively arriving at a decision to approve or deny the permit application based solely on the testimony(s) presented at the hearing regarding “findings of fact.” Where there are any communications by a Council member outside of the hearing, then it must be disclosed at the beginning of the hearing when the presiding officer (i.e., the mayor) asks the panel for such disclosures, if any.
She made a mistake. We all make mistakes, but mistakes have consequences.
During the April meeting, Commissioner Sue Sweeting inadvertently admitted at one point that she had discussed the Rainey Lodge project with a North Carolina Department of Transportation engineer. Representing the applicant (Grand Dakota Development, LLC), attorney Chelsea Garrett first asked Sweeting to voluntarily recuse herself, then when she refused to do so, the di Danti Watson Capua Wilson & Garrett barrister petitioned the other members of the Board to involuntarily recuse her. Garrett’s requests came after she read aloud an email exchange between Sweeting and the NCDOT engineer that clearly identified the commissioner’s violation of the state-mandated, quasi-judicial process restrictions on elected officials comprising the adjudicating body. To make matters worse, Sweeting failed to disclose those ex parte communications when given the opportunity at the opening of the April meeting. That left attorneys, the applicant, town staff members, fellow commissioners, members of the media, and other witnesses to the proceedings wondering about other communications she might have had outside the boundaries of the quasi-judicial hearing with other parties that might influence her vote.
Whether a purposeful flaunting of the mandated process or a simple miscue by someone eager to learn more about the proposed project, it was a mistake. Matheson pointedly conveyed what two of the others (Steele and Virginia Powell) echoed in establishing a priority to protect the integrity of the quasi-judicial process, “She made a mistake. We all make mistakes, but mistakes have consequences.”
Powell, Steele, and Matheson voted in favor of Sweeting’s involuntary recusal. Commissioner Albert Yount did not. Not to belabor this but some would argue that Sweeting did her fellow commissioners a disservice by not admitting she made a mistake then voluntarily asking to be recused when provided the opportunity. Quite the opposite, Sweeting critically characterized the process as a “gag order.” Instead of graciously stepping aside, she put her “teammates” in the awkward position of having to do the right thing. Not that they would have used it, but by not voluntarily asking to be recused, she took away the other commissioners’ potential for voting NOT to accept her offer of recusal, in which case she would have stayed.
And the Beat Goes On
Without Sweeting in the room, the dynamics of the Town Council changed dramatically. This Board of Commissioners not only seemed hellbent on protecting the integrity of the governmental processes with which they have been charged but even made some other tough — and what some would call, “brave” — decisions. And they did so without any hint of micromanagement and procedural missteps that have characterized the Town Council in recent years. In short, they functioned in the manner a board should function.
The Rainey Lodge hearing picked up where it left off when recessed in April. In the final activity during last month’s meeting, attorney Stacy “Four” Eggers questioned Blowing Rock Planning Director Kevin Rothrock, if nothing else laying bare the often conflicting language inherent to Blowing Rock’s Land Use Code that the Planning Board was trying to streamline with their February proposal which, sadly, was rejected by the Commissioners. CLICK HERE to revisit our editorial, “Brilliance, blindsided by dysfunction.”
Tuesday’s public hearing opened with Garrett’s opportunity to cross-examine Rothrock, her questioning aimed largely at establishing not only Rothrock’s credentials but better defining the role of the planning administrator (Rothrock’s job) in relation to the role of the Board of Commissioners in development permitting processes.
Rothrock’s testimony was followed by Eggers calling Michael Lacey to the stand. Lacey is a Newland-based realtor with an appraisal background. Eggers’ line of questioning led Lacey to conclude that the project would adversely impact surrounding homeowners’ property values.
Powell’s point was made, needed, and underscored by the evening’s events.
Somewhat later, the energy in the room picked up a notch when Garrett objected to the qualifications of Marvin, NC-based Mary Shkut (pronounced “scoot”) as an expert in planning and development. With Garrett’s adept questioning, the Town Council members, the applicant, and the audience members in attendance learned that the “expert witness” Eggers brought to the stand had actually been hired by Blowing Rock Civic Association (BRCA), a group whose leadership is opposing this development project. Garrett’s questioning also exposed that Shkut has no professional certifications with, for example, any kind of continuing education requirement. Moreover, she admitted to have been self-taught and self-trained in planning matters while working for the Village of Marvin, NC, south of Charlotte.
Citing statutory guidelines for expert witnesses in quasi-judicial proceedings read verbatim at the beginning of the hearing by town attorney Allen Moseley, Garrett effectively argued against any characterization of the BRCA-contracted “hired gun” as any kind of expert and more of a lay person offering her opinions. The remaining four commissioners agreed with Garrett, voting unanimously to disallow Shkut’s testimony as an expert witness.
Undeterred, Eggers pressed on in his quest to have Shkut’s opinions about the proposed hotel development heard and in the record. Garrett objected, but town attorney Moseley suggested that Eggers be granted some leeway. Garrett, Moseley opined, would have the opportunity to object to anything she felt was out of line and offered as any kind of expert opinion.
And so Eggers’ line of questioning began. After only a question or two, Commissioner Powell pointedly demanded to know why Shkut was still on the stand if the commissioners had unanimously rejected her as an expert witness. “There are a lot of other laypersons out there,” Powell declared as she dramatically swept her outstretched hand across the audience before continuing, “Many of them have a direct vested interest in this project and I would rather hear from them.”
Powell was overruled by Moseley, “…to give Mr. Eggers a lot of leeway in this…,” and what followed was an often confusing series of questions and answers which, for nearly every one, immediately brought Garrett objections, spoken aloud. Nonetheless, Powell’s point was made, needed, and underscored by the evening’s events.
Editor’s Note: Neither Eggers nor Shkut disclosed that the latter is currently embroiled in lawsuits, countersuits, and appeals filed in federal and state courts, according to an article appearing in the Charlotte Observer on January 25, 2019, about whether she is rightfully sitting on the Marvin village board. Also according to the same Observer article, Shkut is the defendant in a federal lawsuit by a developer for “…slander, defamation, and malicious prosecution…” These litigations may or may not be trivial but, in our opinion, they beg for full disclosure and transparency when reading he`r resume and listing one of her credentials as sitting on the Marvin village board. For a full reading of the Observer report, CLICK HERE.
The Heart of the Matter
The rest of the five and half hours can be boiled down to the contrasting points made in the closing arguments by Eggers, attorney for the “interveners” (nearby residents), and Garrett representing Grand Dakota Development. Capturing the full testimony in a single report would be mindnumbing, so what follows is a sampling, condensing it down to the issues that arose as they relate to the “findings of fact” delineated in the Land Use Code for CUP applications:
- The use or development is located, designed, and proposed to be operated so as to maintain or promote the public health, safety, and general welfare.
- Nearby residents, witnesses, and Eggers argued that the increased traffic brought by a hotel, restaurant and bar would endanger the lives and safety of residents walking to town and that headlights flashing into neighboring houses late at night and early in the morning would be disruptive.
- Garrett countered that the project will actually make walking to town along the boundaries of the development safer than it is currently because of the developer’s inclusion of curb and gutter, as well as sidewalks on the perimeter of the property, replacing the need for pedestrians to walk in the roadway.
- The use or development complies with all required regulations and standards of the Land Use Ordinance or with variances thereto, if any, and with all other applicable regulations.
- Eggers was unsuccessful in getting Shkut’s alleged project evaluation document prepared at the behest of the BRCA introduced as evidence. The Commissioners concluded that the BRCA did not have standing and they had already rejected Shaut as an expert witness.
- Garrett reminded the Council members that planning director Kevin Rothrock had testified the plans for the proposed project fit within all required regulations and required no variances to the Land Use Code.
- The use or development is located, designed, and proposed to be operated so as to be compatible with the particular neighborhood in which it is to be located.
- Eggers and testifying residents argued that a 40-room hotel, bar and restaurant springing up across the street from a largely residential neighborhood did not “fit.” They challenged Grand Dakota’s configuration to include a primary access point from Morningside Drive as “gaming” the system and the Land Use Code regarding building height. They argued that the de facto “front” of the building would face U.S. 221, where passersby would see a building that was “six stories high.” To reinforce the idea of a de facto “front” of the proposed building, Morningside Drive resident Lynda Lasseter expressed doubt that the hotel signage would be on Morningside, but rather facing U.S. 221, “…where people are more likely to see it.”
- Garrett pointed out that the parcel was zoned commercial and had an earlier history of commercial development, including a now long gone restaurant and bar, the once popular Cheeseburgers In Paradise. The di Santi Watson et al attorney cited opinions by NCDOT plan reviewers that a primary access point from U.S. 221 was not viable because of such close proximity to both Main Street and Morningside Drive.
- Eggers pointed to Land Use Code restrictions on impervious surfaces and the allowance for 70% greenspace.
- Garrett referred to earlier Rothrock testimony that he had drafted the subject section of the code and that it was not relevant to development proposals with large setbacks as represented by the Rainey Lodge planners, but to Main Street sites with little in the way of setbacks.
- The use or development will not substantially injure the value of adjoining or abutting the property.
- An early Eggers-produced expert witness, longtime appraiser and real estate broker Michael Lacey of Newland, testified that there would be a direct (adverse) impact on the property values of neighboring properties because of the hotel-restaurant-bar development. Commissioner Matheson brought chuckles in quipping while waving his thumb upward, “I needed you. They put a parking deck in front of my house (on Wallingford St.) and then (the County) increased my tax value.”
- Garrett pointed out that the “findings of fact” guidelines specify “adjoining or abutting property.” To wit, she said, “The only property that adjoins or abuts this parcel is the Speckled Trout restaurant and the corner of the property where Hartley’s Interiors is located, facing Main Street. And those are commercial properties.” Garrett added that both Speckled Trout and Mellow Mushroom across the intersection have outdoor seating for their restaurants, and that there is another lodging establishment, Ridgeway Inn, across U.S. 221 from the planned hotel development.
- The use or development conforms with the general plans for the physical development of the Town as embodied in this Ordinance, the Town of Blowing Rock Comprehensive Plan, and any other duly adopted plans of the Town.
- Garrett reminded Council members that the proposed Rainey Lodge hotel was a commercial project on a parcel zoned for commercial development and that both the Hyatt/Palma study of several years ago and the 2014 Blowing Rock Comprehensive Plan called for more hotel rooms within walking distance of downtown and more infill development. She also reminded the commissioners that the Blowing Rock Planning Board, “…which is comprised of a lot of smart and well-informed people…,” had unanimously approved the proposed project.
The sitting Town Council members have weighty decisions ahead and the proposed Rainey Lodge project is but one of them. As arduous as this process has been and still is, the Commissioners are to be complimented on the thoroughness with which this CUP application is being vetted. As attorney Eggers suggested at one point, Blowing Rock may be at a crossroads, of sorts.
Blowing Rock is comprised of a variety of constituent interests, not just year-round residents, not just second-home owners and seasonal residents, not just Main Street business owners, and not just tourist-dependent enterprises, among others.
No constituent interest group is more important than the others, despite what Blowing Rock Civic Association leadership would have you believe. True, second homeowners collectively pay a chunk of the property taxes funding the town budget, but they are also the reason the town budget is bloated. You can’t hire and seasonally layoff the police, other emergency service personnel, public works, and administrative staff members with the easy whims of seasonal or part-time residents as to when they want to be in town. Protecting those second or seasonal homes and administering the town services for all are full-time, year-round tasks.
We often hear folks saying they want to preserve the town’s quaint village history — but which part of that history are they wanting to preserve? Should we go back in history to the time when livestock roamed downtown and pooped on Main Street?
From 1922 to 1966 — 44 years — Mayview Manor had a dominant place in Blowing Rock’s rich village history with 138 hotel rooms (more than three times the number proposed for Rainey Lodge), a restaurant, a bar, meeting rooms — and 16 chimneys! This hotel (which would dwarf the proposed Rainey Lodge development) attracted the likes of Annie Oakley and other figures of national prominence, including politicians, presidents, business executives, and movie stars. And yes, this commercial lodging establishment operated in one of the High Country’s most exclusive neighborhoods. Instead of shunning the establishment because it might depress their property values, affluent folks flocked to the area to build their homes anew during the time that Mayview Manor operated.
Or do we go back to the time when “Holly’s” and the historic “Antlers” operated at full throttle in different parts of town, where Ridgeline and Bistro Roca restaurants, respectively, are now? Both site owners have preserved the basement liquor lockers secretly maintained by their patrons when alcoholic beverages were prohibited.
Do we go back to the period between 1976 and 1983, when one of Blowing Rock’s star attractions was P B Scott’s Music Hall, billed as “the best music club ever”, rivaling Whiskey-a-Go-Go in Hollywood, Fillmore West in San Francisco, Fillmore East in New York City, The Royal Albert Hall in London, or Tipitinas in New Orleans?
Do you want to go back in time when certain town fathers put sharp-edged rocks atop the walls in front of Martin House and other locations on Main Street to keep the “colored folks” from sitting there?
My point is not that we want to go back in time to any of those periods, but that Blowing Rock has and will evolve — and it will evolve with the predominant demographic and market trends of the times. Are the younger generations following in the footsteps of their parents and grandparents wanting to “summer” in the High Country, in the same location year after year? Or is a more mobile, adventure-hungry generation wanting to explore and experience a variety of destinations during their lifetimes? When they do come to Blowing Rock, do they want to stay for more than a week or a weekend? Do they want to rent in a Blowing Rock neighborhood or outside of the town limits and drive to downtown, fighting for a place to park? Or do they want to stay in the central business district and walk to downtown shops and eateries?
WHETHER Blowing Rock adapts to changing demographics and market circumstances is not the question, because at some point it will have to, even if unwillingly. The better question is whether it will be forced to change — or will change be the result of thoughtful, forward-looking decisions by those elected by their peers to contemplate and act upon these matters.