News

Couple sues city over denial of application to add windows in historic building

By Bill Moss, Published: July 21, 2023

A couple who are renovating an upstairs space on Main Street for residential use has sued the city of Hendersonville after the city’s Historic Preservation Commission rejected their effort to install windows on two sides of the century-old building.

Jason and Amanda Kraus filed the lawsuit on April 14, a month after the historic commission turned down their request to add windows to the blank side wall and a back wall, which currently has one small window.

The lawsuit, filed in Henderson County Civil Superior Court by attorneys Derek J. Allen and Hannah Michalove of Asheville, asks the court to rule that the city wrongfully denied the application and to order the historic commission to vacate its denial and grant the permit.

The historic commission, which rules on Certificate of Appropriateness permit requests for building projects and architectural changes in the city’s historic downtown, voted unanimously after a hearing on Feb. 15 to deny the application to add windows on the grounds that they are “incongruous with the character of the Hendersonville Historic Preservation Design Standards,” citing a standard saying it’s “not appropriate to introduce new windows or doors if they would diminish the original design” of the building.

The Krauses want to add eight windows to the south-facing second-story façade and install a large ellipse window in the rear façade.

During the hearing, contractor Dennis Dunlap submitted renderings of the windows and professional drawings by Anderson Windows showing the specifications. He testified that the windows could be installed without compromising the structural integrity of the building and also noted that another Main Street building has an ellipse similar to the one the Krauses want. City staff showed photos of Main Street Historic District buildings with facades that have windows similar to the ones Dunlap designed for the property at 225 N. Main St., which is known as the “People’s National Bank Building.”

Attorney Larry Hogan, who owns property next to the Krauses’ building, told the board he recalled that a prior attempt to install windows on the rear façade caused the façade to collapse. Since then, brick was added to the rear wall to stabilize it. The side wall, Hogan told the commission, has been unaltered for 110 years. Adding windows, he argued, would “change the history of Hendersonville.”

The commission’s chair denied Dunlap’s request to continue the hearing and delay a decision until a later date. The board then voted to deny the application and ratified the decision at its March meeting by adopting findings of fact and conclusions of law.

In their lawsuit, the Krauses argue that the Historic Preservation Commission’s decision was arbitrary and capricious and that it relied inappropriately on “the unsworn testimony of Mr. Hogan, who was not admitted as a fact or expert witness.” The commission, the lawsuit goes on, denied the property owners due process, reaching a decision not based on “competent, material or substantial evidence” but instead on the “unsworn, incompetent testimony of Mr. Hogan.”

After hearing an update about the lawsuit in a closed session on July 6, the City Council did not signal that it was willing to settle the case, City Manager John Connet. Attorneys for the Krauses did not respond to the Lightning’s call seeking comment.