The Town Council might intentionally put itself in a position to be sued so it can wage a court battle against a new North Carolina law dictating residential design that local leaders deem overbearing.
It would be one of the first challenges to the law that was signed by Gov. Pat McCrory in June, if not the first.
The controversy arose from an argument over porches.
A developer wants to build several dozen townhomes on the triangular lot where Salem Street and Salem Church Road converge, just outside of downtown. The town wants wrap-around porches on the end units.
The developer, Michael Whitehead, had declined to build the porches because of the expense. He is managing the project through a company called Salem Pointe Associates.
At the meeting, Jeff Roach, owner of Peak Engineering and Design, represented the developer. He said he didn’t have the authority to make a compromise decision on the design for the developer, when asked by council members.
On Friday, though, Roach said he has since met with the developer to talk about a possible compromise, “putting features on some, but not all, of the units.”
He said they don’t want to have to consider a lawsuit.
“We expect to meet with a couple of the council members and show them what we’ve got,” Roach said. “Hoping to convince them to move off from denying it.”
Testing the law
A few months ago, the town could have held up the project until the porches were included in the plans.
But under a new state law, the development is able to proceed even though Apex officials don’t like it.
The Zoning/Design & Aesthetic Controls bill, supported by Republican lawmakers as well as most Democrats, stripped local governments of much of their power to control design standards relating to aesthetic details in new developments – details about colors, windows, roofs, building materials and more.
Many cities and towns across the state voiced displeasure with the bill, including Apex.
“The council was vehemently opposed to this bill, and I’m not willing to give it up without a fight,” said council member Scott Lassiter.
This is the first time the new law has been put to the test in Apex.
Roach said the porches would cost hundreds of thousands of dollars.
“I tend to agree that some architectural standards should be in place,” Roach said, adding that this was not one of those cases.
“It’s a nice development,” he said.
The project would bring 64 lots to just less than 11 acres, if approved.
Council member Denise Wilkie asked Roach if he would compromise and agree to put the porches on at least a quarter of the end units, instead of on every one. That’s when Roach said he would need to consult with the developer.
Lassiter suggested voting to deny the project, despite lacking any standing to do so. He said it would send a message to developers or invite a lawsuit in which they could ask a judge to overturn the law.
“This is a watershed moment for the council,” he said. “Pack your briefcase, I’m willing to go to court.”
But Town Attorney Laurie Hohe advised a less aggressive approach. She convinced the council to table the vote so they could meet in private to discuss the ramifications before voting again at a future council meeting.
The vote to put off a final decision was unanimous, but officials made it clear it wasn’t because they were undecided.
During Tuesday’s public discussion, although Lassiter pushed for a possible lawsuit-inducing vote, he also indicated room for compromise.
“You’re doing business to maximize profit,” he told Roach. “And I can’t fault a businessperson for doing that. But we have a job to do here. ... We need to do everything we can to uphold the standards that have made this town what it is.”
Doran: 919-460-2604; Twitter: @will_doran