Wake County

August 26, 2014

Oakwood modernist house court hearing wraps up

The fate of a controversial modernist house in the historic Oakwood neighborhood rests with Superior Court Judge Elaine Bushfan after attorneys wrapped up their arguments Tuesday.

The fate of a controversial modernist house in the historic Oakwood neighborhood rests with Superior Court Judge Elaine Bushfan, after attorneys wrapped up their arguments Tuesday.

Bushfan will sort out conflicting rulings from two Raleigh City Council-appointed boards that left the nearly complete home in limbo. The Durham-based veteran judge did not offer any estimates of when she’ll announce a decision.

If she sides with the city’s Historic Development Commission, homeowners Louis Cherry and Marsha Gordon can finish construction and move in. But if she upholds the Board of Adjustment’s decision to overturn the historic commission, the couple will have to change the design or tear the house down.

Attorneys for the Board of Adjustment and across-the-street neighbor Gail Wiesner spent much of Tuesday’s three-hour hearing making their case. Attorney Andy Petesch said the historic commission failed to properly apply city guidelines governing architectural style and building materials.

“There were enough empty spots in the analysis and the evidence that there’s no way a rational person can reach this decision,” he said.

Petesch pointed to guidelines discouraging a “natural wood appearance,” noting that the Cherry-Gordon home is the only house in the neighborhood with unpainted wooden siding. He said their decision to place the front door on the side of the house is also an anomaly.

“They had to go way out of their way to find one or two direct or even indirect examples of what they’re trying to do,” he said.

The historic commission must establish that the house is “not incongruous” with the surrounding neighborhood. The Board of Adjustment ruled 3-2 in February that the commission couldn’t justify that finding.

Board of Adjustment lawyer John Silverstein said the commission was too focused on individual elements of Cherry’s design.

“This is not a question of materials,” he said. “This is not a question of whether the windows were done properly. ... You’re looking at the whole architectural style of this house.”

Silverstein and Petesch argued that the historic commission focused on comparing Cherry’s plan to individual houses, rather than the character of Oakwood as a whole. They said the predominant style there is Victorian.

‘Style is not there’

But city attorney Dorothy Leapley – who’s backing the historic commission – said such a narrow interpretation would have ruled out a modern-looking home on nearby Elm Street. That house is pictured in the historic district rules as an example of “congruous” architecture.

Cherry and Gordon’s attorney, Nick Fountain, said the rules aren’t focused on architectural style. “The word isn’t even there,” he said. “Style is not there, your honor, and we feel that’s important.”

Fountain says the Board of Adjustment overstepped its bounds by judging the evidence intially presented to the historic commission. The appeal must focus on whether the decision had a “rational basis” in the historic guidelines.

“They had trouble confining themselves to the appellate review,” Fountain said.

‘Huge holes’

Petesch said the Board of Adjustment was focused solely on the commission’s shortcomings. “There are huge holes in that application and in the record,” he said.

Silverstein said the problems emerged because a modernist home has never been built before in a Raleigh historic district. The commission did, however, approve a modernist addition to a historic Oakwood home recently.

All four attorneys involved handed Judge Bushfan reams of documents, including a number of past North Carolina court cases addressing similar issues. She didn’t ask questions or make any comments at Tuesday’s hearing but said she’ll be reviewing the documents before issuing her ruling.

Fountain said he hopes that will happen soon. “We have endured a year of hearings and appeals and litigations in this matter,” he said. “Allow our folks to quit walking around in boxes, finish this house and move in.”

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