The town’s attorney says Village at Aversboro residents were out of order two weeks ago, when they used the petition and comments portion of the town council meeting to speak out against an apartment project proposal without the developer being there to defend his project.
“I probably should have said something to them during testimony,” Bill Anderson, the town attorney, said. “They would have been mad, but that would have been legally approved.”
Two weeks ago, residents from the Village at Aversboro packed the town council meeting to voice concerns over the apartments. The 204-unit apartment complex proposal, which is expected to appeal to young families, will be adjacent to the 55-and-over single-family home community.
A spokesperson for the community told the town council that the apartment proposal does not “reflect the vision or the spirit of the comprehensive plan developed for the Town of Garner.”
He said many of the residents moved to the area so they could live with people who lived similar life styles, and the apartment complex put that in jeopardy. He said if the project was approved as proposed, then the residents at the Village at Aversboro will have felt betrayed.
The assembly seemed to resonate with at least one council member, who expressed how impressed he was by the way the residents gathered and conducted themselves.
But Anderson, the town’s attorney, says that was not the proper way to do things, and he and the council should have stopped it.
What the residents did was not illegal, Anderson said. However, it violated a N.C. General Statute that prohibits public bodies from participating in any “ex parte communications” with one side before the scheduled public hearing.
The apartment complex proposal is still being reviewed by town staff. That also means it has not reached a public hearing, and is months from doing so, Anderson said.
“We still have an obligation to protect the rights of both parties,” Anderson said. “The applicants and members of the public. When it’s a case of that nature, it is not appropriate for the property owners to use a petition and comment section to get in the first blow at the developer who is not in the room.”
The proposal will require the developer to win approval of both a rezoning request and a site plan. Because it requires both, the public hearing will be classified as a quasi-judicial proceeding. Quasi-judicial proceedings are essentially trials. So the applicant and those who oppose the proposal present evidence either for or against the plan to the council, which acts as the judge and jury.
Anderson said in past years, a developer would call a council member wanting to talk about the case before it had a hearing. He said he had to advise council members not to have those conversations.
“It’s part of the same issue,” he said. “You can’t hear one side in the absence of the other side in these quasi-judicial cases.”
Council member Buck Kennedy didn’t seem to necessarily agree with the rules, but he said he would follow them.
“It really makes it difficult for the people that live in the Village that want to talk about this and have their input,” Kennedy said. “I hope that the laws and the rules and ordinances under which we have to operate don’t stifle the parties out there getting this thing resolved so that we can (get) together in some sense of harmony.”
Anderson said the council will disclose what was said in the meeting to the applicant. He said the disclosure of the comments will cure the problem.
“Just consistent with that view, it is going to be my duty to suggest that people don’t show up and use the petition and comment section to give preliminary testimony in a case that is supposed to be heard months later,” Anderson said.
The neighbors are free to return to the public hearing to make the same comments. Those comments would not be deemed inappropriate.