NEW HANOVER COUNTY — The developer behind the proposed 1,800-home Hilton Bluffs is now suing New Hanover County after the county manager’s actions prevented the project from moving forward with only one access point in and out of the development.
Copper Builders, represented by Fox Rothschild LLP, filed a lawsuit on Nov. 3 alleging County Manager Chris Coudriet exceeded his authority on three separate attempts to stall Hilton Bluffs.
“Hilton Bluffs was a by-right plan that met the county’s rules,” Copper Builders founder Wade Miller wrote to Port City Daily in a statement. “It was approved for 1,800 homes and would have permanently protected more than 3,200 acres of Sledge Forest along the Northeast Cape Fear River. We believe the county manager exceeded his authority in blocking it, and we’ll let our court filings speak to the specifics.”
The lawsuit claims the county’s unified development ordinance does not grant the county manager decision-making power over the technical review committee or by-right development applications.
Hilton Bluffs is on 600 acres located off Castle Hayne Road and is allowed by-right but it still had to go through the county’s technical review committee to ensure it met permitting standards. The TRC approved in March its site plan with three access points; it was appealed and subsequently devolved into a single-access plan that drew significant controversy.
The three incidents of interference cited by the lawsuit include Coudriet’s denial of the Hilton Bluffs site plan with one access point on Sept. 17. At the time, Port City Daily asked the county for its legal basis for the decision but did not receive a response.
This was followed by directing the technical review committee to reconsider its preliminary approval of the original site plan with three access points after Copper Builders made a legal agreement with neighbors in the area not to use two of them.
Additionally, Copper Builders claims Coudriet pressured the county fire marshal into rescinding his sign-off on a one-access site plan. The fire marshal at first said one access was permissible because fire code allows developers to forgo a second access when it is infeasible; he rescinded due to unresolved board of adjustment cases over access.
The lawsuit claims Coudriet’s interventions converted an administrative permit process into a “subjective decision-making process void of standards and based not on law but his vague, personal opinions.”
On Friday, a county spokesperson said the county does not comment on pending litigation. Port City Daily also asked if the county planned to hire outside counsel to handle the lawsuit; a spokesperson referred back to the no comment.
No neighborhood, no conservation
Copper Builders has been trying to develop land in Castle Hayne’s Sledge Forest for several years; in March, it submitted plans to build 1,800 homes with three access points — one on Sledge Road and two through nearby neighborhoods, Marathon Colony and Wooden Shoe.
The county’s technical review committee gave preliminary approval to the plan, which triggered a challenge from the Southern Environmental Law Center and another from the neighbors.
While the SELC’s has yet to be heard due to delays, Copper Builders resolved the neighbors’ complaint by eliminating the two connections to the Wooden Shoe and Marathon Colony neighborhoods. Aside from opposing the connections, the neighbors filed a lawsuit claiming the roadways violated the subdivision’s HOA covenants.
Copper Builders’ lawsuit states it agreed to eliminate those connections and rely on a single point of access to Castle Hayne Road after talking with county planning staff and the fire marshal, along with the North Carolina Department of Transportation and Wilmington Urban Area Metropolitan Planning Organization. The lawsuit claims none of the representatives from these groups raised an objection to a single access point.
Copper Builders’ met with the county and NCDOT on June 4 and June 16 and confirmed the viability of a single-access plan, according to the lawsuit. The fire marshal, David Stone, then made his initial determination on June 24, allowing the single-access site to proceed.
The state fire code states fire marshals shall not require two access roads, despite the size of Hilton Bluffs, when secondary access is deemed infeasible. Copper Builders claimed to have sought a secondary access with all other adjacent property owners; thought that, too, is limited because the property is largely bordered by wetlands in Sledge Forest and the Cape Fear River.
These property owners include Nuclear Fuel Holding Co., Inc. (General Electric) and three individuals — Robert Payne Jr. and Laurie Payne, Kevin Hommes, and D. Webster Trask. Copper Builders deemed the General Electric property infeasible and claims the three property owners denied an easement.
The lawsuit states Copper Builders met with the county on July 21; the day prior, Copper Builders settled the neighbors’ appeal to its site plans before the New Hanover County Board of Adjustment by eliminating two road connections and agreeing the developer would not adjoin Hilton Bluffs to the neighborhoods. The SELC’s appeal was postponed to another date.
On July 23, the fire marshal rescinded his approval for the single-access site, calling it premature due to the pending cases before the board of adjustment. Though the lawsuit claims this rescission was done at Coudriet’s behest, the complaint’s narrative doesn’t detail when and how Coudriet made this directive.
The lawsuit says Copper Builders met with county staff again on Aug. 3 to go over its one-access site plan, to be reviewed on Sept. 2. According to the developers, neither the planning director, the development review supervisor, the deputy county attorney, nor the assistant county manager suggested a single access plan would not be approved.
At the TRC meeting on Sept. 2, neither county staff nor the fire marshal objected to a single access point. The lawsuit says Copper Builders requested a meeting with Coudriet on Sept. 9 but did not receive a response.
On Sept. 10, Copper Builders met with the county planning director and development review supervisor to review its resubmittal — based on other comments from the TRC — before filing.
The same day, according to the lawsuit, the deputy county attorney directed Copper Builders’ counsel to remove the manager from all communications, describing him as a represented party in the pending board of adjustment matter.
On Sept. 16, Coudriet’s denial letter went public. In Copper Builders’ view, Coudriet’s decision was made in response to public opinion and pressure from the board of commissioners.
The public has been outspoken about their opposition to the development due to concerns over the number of homes located near the river and wetlands, none more vocal than Save Sledge Forest, who issued a statement on the lawsuit:
“We stand with our community in demanding answers, accountability, and a future in which public safety is never treated as an obstacle to development. And, while a lawsuit may challenge the County Manager’s authority, it cannot answer the question of how 1,800 homes can safely rely on a single access point, especially in this challenging location. There comes a point when even the most determined developer must confront
a difficult question: Is the problem everyone standing in the way, or is it the vision itself?”
Coudriet wrote in the denial letter his decision was based on “unacceptable operational and life safety risks,” in the form of delayed emergency response and traffic delays from regular traffic. Additionally, the public has raised concerns about the single access road being washed out due to flooding and its proximity to the river and wetlands.
The lawsuit states the basis for denial “amount to the testimony of a lay witness offering only opinions, speculative assertions and generalized fears. It is not competent or material evidence of a violation of any objective standard to which the plan must conform.”
The lawsuit also addresses flooding concerns, pointing out the county’s unified development ordinance standard for an evacuation access applies to subdivisions located in a V flood zone, but no part of the project lies within a VE Special Flood Hazard Area. Further, it adds no residential lots are proposed inside any Special Flood Hazard Area.
Still, the lawsuit notes Copper Builders has designed its roadways to be above the base flood elevation, while stormwater culverts and crossings along the primary access route will be upsized to reduce the risk of roadway inundation.
Copper Builders says it met with the county manager to try to resolve the issue; it became clear a one-access site plan would not be approved.
Such was the situation going into the Sept. 22 board of adjustment hearing, where the SELC’s hearing on its complaint was delayed again to contemplate whether the lack of secondary access options allowed the hearing to move forward.
Then on Sept. 24, the county manager directed the TRC to reconsider its approval of the three-access plan, considering the two of the access points — the Wooden Shoe and Marathon Colony connections — on that plan were no longer viable.
According to the county manager,access changes were a substantial departure, triggering re-review, though Copper Builders did not find it failed to comply with any local development regulation or state law.
Nonetheless, the technical review committee revoked approval on Oct. 8.
The lawsuit takes issue with the revocation because it does not identify development activity that differs from the site plan. It also doesn’t identify UDO standards the project fails to meet.
The lawsuit adds the UDO allows for amendments to site plans, but it does not allow the TRC to revoke approved site plans because of private agreements, referring to the consent order with the neighborhoods to remove two access points.
Under N.C. Gen. Stat. § 160D-104, the approval of the March site plan “runs with the land” and the owners of the Hilton Bluffs property, who hold the benefit of that approval, are not parties to the consent order or consent judgment.
Copper Builders is asking the court to declare the county manager has no authority to deny its site plans. It also asks a judge to void the denial letter and revocation of the March site plan approval and declare valid the one-access plan submitted in August. In addition, Copper Builders seeks a directive to the TRC to review and approve Copper Builder’s one-access site plan.
The developer is also seeking damages incurred due to the county’s actions.
“Without an approved plan, there is no neighborhood and no conservation,” Miller wrote to Port City Daily. “To be clear, Copper Builders does not own this property or its timber rights. The harvest underway is the landowners’ decision, under the property’s long-standing forestry plan. Our plan remains the only one on the table that would protect Sledge Forest permanently.”
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