News

Neighbor sues over 'event barn' permit

By Bill Moss, Published: December 14, 2015

What might have seemed on the surface like a benign request — asking the county’s permission to hold weddings and birthday parties in a barn — has turned into a lawsuit that has pitted neighbor against neighbor in Cimarron Forest.

Homeowners Bill and Tamra Crane filed an application last summer and formally asked the Henderson County Zoning Board of Adjustment for a special use permit to host weddings and birthday parties on weekends at an “event barn.”
Responding to questions on a form, the Cranes said the development would not disrupt the neighborhood, endanger anyone’s health or safety or devalue neighboring property.
“Our barn will be in harmony with the surrounding area due to the current use of our property,” they said.
There’s plenty of other public activity, they noted, including events at the Historic Johnson Farm right next door and school traffic and games at Rugby Middle School across the road and West Henderson High School a few hundred yards west.
“Our home is on the same property so we are very conscious of maintaining property values,” the Cranes said.
After a public hearing on Sept. 30, the Zoning Board of Adjustment agreed. It issued the permit.
Not so fast, said Stan and Elizabeth Shelley, who are adjoining property owners. After hiring an attorney to represent them at the zoning hearing, the Shelleys and that attorney, Sara Massagee, have sued the county to overturn the decision. The board’s action, Massagee asserted in a blistering parting shot, “was an exercise of unguided discretion, contrary to evidence in the record and was arbitrary and capricious or attended with a manifest abuse of authority.”
In the lawsuit, filed Nov. 30, the Shelleys are asking a Superior Court judge to revoke the permit and force Henderson County to pay their attorney’s fees.
The Henderson County Board of Commissioners called a closed session to hear details of the lawsuit on Monday night. County Attorney Russ Burrell said Tuesday he would file a response on behalf of the Board of Adjustment.
“There was obviously a neighbor that didn’t like it and they brought a lawsuit saying it shouldn’t have been granted,” he said. “We will defend the procedure and we will defend that the hearing was held appropriately under the law. The county is more like a court, not on one side or the other” of the dispute. “You’ll see the party that applied for it and the party that was against it fight it out in Superior Court. The county is much more analogous to being the court in the original trial than we are to being a party. When it comes down to was this the right thing to do or should it have been granted with these particular protections or those particular protections, that’s a dispute between two neighbors.”
As for attorney’s fees, Burrell said he would expect the plaintiffs to ask.
“I’m not trying to forecast anything about this case,” he said. “I don’t know of many zoning cases, where attorney fees have been awarded in the absence of truly egregious action.”

Toby Linville, the county code enforcement officer, said Tuesday he would let Burrell speak for the zoning board.

'They had a proper meeting'

Tamra Crane was cautious, too.
“I’m not sure how much I can say,” said Tamra Crane. Told that the lawsuit contended that the event barn would be disharmonious and would devalue property, she said, “It would be just the opposite of what you just said. We agreed with the Technical Review Committee and the Zoning Board of Adjustment. They did everything they were supposed to do and they had a proper meeting. They issued a special-use permit.”
Crane said she did not want to comment on whether she and her husband, a building contractor, would get their own lawyer. “We were served with papers,” she said. The lawsuit names Henderson County and the Cranes as respondents.
Stan Shelley also declined to elaborate on the lawsuit.
“It’s neighbors,” he said. “I don’t want to make it worse than it is.”
In the lawsuit the Shelleys say the R-2 residential zone is incompatible with the “small place of assembly” the Cranes requested and the zoning board authorized. (Unlike planning board recommendations, Zoning Board of Adjustment decisions do not go to the Board of Commissioners. They’re appealable to civil Superior Court.)
During the public hearing, numerous neighbors testified about dangerous traffic conditions that already exist at Bradley Road and Country Road. Neither the petitioner nor the county presented evidence that the use would not devalue property, Massagee said in the lawsuit. The zoning board findings that the event barn is “in harmony with the surrounding area” because it’s near a middle school and educational farm “fail to provide logical connection or basis for the conclusion they purport to support. … The Board of Adjustment did not even discuss the issue of whether surrounding property would be impacted by the proposed special use.”
The zoning board’s finding that “there are fences and trees on the perimeter” failed to show how “said fences and trees” would “minimize noise, glare, dust, solar access and/or odor.”