BREAKING: Hayes Barton Neighbors Lose Another Round in Lawsuit to Stop Townhome Community
Subscribe to our Substack to be the first to get these breaking news updates.
Earlier today, the NC Court of Appeals rejected the neighbors’ appeal seeking an injunction to stop a developer from building 18 townhomes in the Hayes Barton neighborhood. The decision relates primarily to the neighbors’ request for an injunction designed to stop the developer from proceeding with its proposed project pending the outcome of the neighbors’ lawsuit seeking to invalidate Raleigh’s Missing Middle housing reforms. Here is a key quote from the decision:
It may have been convenient for Plaintiffs [Neighbors] to obtain an injunction halting the Townhouse Project at the same time the factual issues between Plaintiffs [neighbors] and Defendant-City were resolved. Nevertheless, convenience of litigation is not a substantial right. Accordingly, Plaintiffs [neighbors] have not established a substantial right and we dismiss their appeal as interlocutory.
What the Appellate Court decided was that the neighbors’ appeal was premature because the Wake County Superior Court has not ruled on whether the City’s Missing Middle reforms were adopted properly. Once the Superior Court rules on the legality of the Missing Middle reforms, then the Court will be able to determine the legal status of the townhome community.
The practical impact of the decision is that the townhome developer is not prohibited by law from building the townhome community while waiting on the outcome of the litigation challenging the Missing Middle reforms. However, while there may be nothing “legally” prohibiting the developer from proceeding, there remains financial risk. That risk persists because if the courts ultimately invalidate the City’s Missing Middle reforms, the neighbors could seek to force the Developer to remove whatever it built on the property pursuant to the invalidated ordinance. The same risk applies to any developer seeking to build a project using the Missing Middle reforms. Until the courts render a final decision either validating or invalidating those reforms (or the litigation is settled out of court), there will be persistent risk and uncertainty for any developer seeking to build housing using the Missing Middle reforms.
Readers should note that other Hayes Barton neighbors continue challenging the City’s administrative approval of the developer’s 18-unit townhome community. That type of appeal is handled differently than the one challenging the Missing Middle ordinances. It has gone before the Raleigh Board of Adjustment twice and is now back before the Wake Superior Court for a second time.
This litigation is complex and difficult to follow unless you are a lawyer. Suffice it to say that presently the developer has an approved plan to build 18 townhomes on the property and there is no legal barrier preventing it from building those proposed 18 townhomes while these various lawsuits work through the judicial process.
Adding to the complexity and uncertainty associated with the Missing Middle reforms, similar litigation was filed more recently seeking to stop a 16-unit townhome community near the Raleigh Country Club, along with a companion challenge to the Missing Middle reforms. The same attorney represents the neighbors in the Hayes Barton and Raleigh Country Club litigation.
Beyond the direct impact on these two proposed developments, the uncertainty spawned by this litigation will result in fewer homes being built while the cost of housing in Raleigh continues to rise.
For more detail regarding the pending legal challenges to Raleigh’s Missing Middle reforms, head over to RaleighForward’s Missing Middle Resource Page.