Wake County

August 25, 2014

Modernist Oakwood house battle continues in Wake court

After months of debate and national media attention, the controversial modernist house in Raleigh's historic Oakwood neighborhood got its day in court Monday.

After months of debate and national media attention, the controversial, nearly complete modernist house in Raleigh’s historic Oakwood neighborhood had its day in court Monday.

The courtroom battle – which continues Tuesday morning – centers on whether the city’s Board of Adjustment was out of line when it overturned approvals for the modernist house. The board’s majority agreed with across-the-street neighbor Gail Wiesner that Raleigh’s historic development commission didn’t follow its own guidelines to protect historic character.

Because the board’s rejection came after Louis Cherry and Marsha Gordon began construction, a Wake County Superior Court judge’s ruling will decide the home’s fate. If Cherry and Gordon, who have halted construction on the house, lose this week’s appeal, they’ll have to alter the design or tear the building down.

The homeowners’ attorney, Nick Fountain, said his clients followed Raleigh’s rules for building in a historic district like Oakwood. Those rules say new construction must be “not incongruous” with the existing neighborhood.

“Oakwood is a collage” of differing architectural styles, Fountain said. “It isn’t frozen in time the way Williamsburg is.”

City attorney Dorothy Leapley is involved in the appeal at the direction of the Raleigh City Council, and she agreed with Fountain’s view. She showed dozens of photos of what she described as contemporary homes in Oakwood.

“You have a collection of ranch homes built in the 1950s,” she said. “You’ve got recent construction from the 1980s.”

Attorneys for Wiesner and the Board of Adjustment will make their case Tuesday. Opponents of the house have said the guidelines require new homes to “blend in – not look old, but blend in.” They think the Cherry-Gordon house fails that test, and they worry its construction paves the way for more out-of-place modernist architecture and possibly even the demolition of historic homes.

Much of the appeal focuses on whether the Board of Adjustment made procedural errors in its ruling. Fountain and Leapley argued that the board failed to establish whether Wiesner even had legal standing to file an appeal.

“There’s no evidence of special damage to Mrs. Wiesner,” Leapley said, citing the legal requirement to contest a neighbor’s construction plans.

Attorney Andy Petesch, however, pointed to an appraisal commissioned by Wiesner, which determined the modernist neighbor would have a “significant” effect on her property value. The appraiser’s report compared the effect to the construction of a shopping center or high school athletic stadium, both of which have caused home values to drop elsewhere in Raleigh.

“Her view and vista is going to be dominated by this two-story incongruous home,” he said, adding that Wiesner is also suffering from increased traffic from visitors gawking at the “oddball” building.

Wiesner’s legal standing was among several issues that Leapley and Fountain said would invalidate the Board of Adjustment’s vote. Fountain said the homeowners weren’t invited to comment during the board’s meetings in January and February, although Wiesner’s attorney presented evidence.

“No one gave my clients the opportunity to say anything,” Fountain said.

But Petesch said that Cherry and Gordon weren’t barred from speaking at the meetings.

“There’s no evidence (Cherry) ever made an attempt to present his own arguments,” he said.

The pro-house attorneys also said the Board of Adjustment substituted its own opinion for that of experienced architects and preservationists on the city’s Historic Development Commission. The question before the board was whether the historic commission had a “rational basis” for its decision.

“What we have here is a Board of Adjustment trying to evaluate architectural style,” Fountain said. “The Board of Adjustment just fouled up on this one, because they’re used to dealing with cases where they are the finders of fact.”

Before voting against the house in February, adjustment board member Ted Shear said the historic commission failed to apply its own guidelines, and its approach would allow any design in Oakwood. The Raleigh City Council has postponed its reappointment of Shear until the Oakwood case is resolved.

Board of Adjustment attorney John Silverstein – who, like Leapley, is paid by the city – is due to defend the board’s actions in court Tuesday. The case isn’t being tried by a jury, so the final ruling rests with Superior Court Judge Elaine Bushfan.

Regardless of who wins, Fountain noted Monday that the bitter divisions between Oakwood neighbors will likely continue.

“It’s really torn up the neighborhood,” he said. “Mrs. Wiesner and her husband feel like they have drawn the neighbors from hell, and our clients probably feel the same way.”

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