Update on our BOA Hearing - As Anticipated, We Lost the BOA Battle, but Will Win the War for our Neighborhood
Not Surprisingly, the City of Raleigh's BOA Aligned 100% with Developers in 3-0 vote against Hayes Barton.
Apologies for the delay in getting this out, having the hearing on Tuesday afternoon/evening and then my day job made it hard to get an update out.
Quick Fundraising Update
This weekend, I’ll reach out to the folks that have agreed to donate for next steps. If you missed it, we announced the launch of a $100,000 fundraising campaign with a $20k match commitment. We already have some good momentum out of the gate, but after personally witnessing the BOA hearing, it’s clear we are up against a City structure that is heck-bent on building anything anywhere and nobody is going to come in an advocate to save Hayes Barton. We have to band together, pool resources and prepare to continue to fight this using the rule of law at higher levels where our voices can be heard.
Details of the fundraising are here.
Summary of the BOA Hearing
Part 2 of the My wife, daughter and I had to tag team this one and as a reminder, I’m not a lawyer or named in these actions, just a concerned neighbor like you sharing what we’re seeing and helping out however we can.
Reminder of the Hayes Barton arguments
If you are just joining us, there’s much more background in these 2 posts:
I’ll summarize the Hayes Barton argument to arguments with pictures.
Hayes Barton Macro Argument 1: This is a new plan and we should reset
While the Wake County Superior Court Judge did point out that the one thing in the original 2022 plan that needed a change is a TPY, if you clearly look at the 2025 new plan (the one currently contested), you’ll see they changed the entire plan. All the parking is gone, the open space in the middle, the single thing not changed is the 17 townhomes. The developers are not willing to sacrifice one penny to make this plan compliant:
The City says their interpretation of the Wake Superior Court ruling is that they just had to add a TPY and could change anything else in the plan. Therefore they filed a motion to dismiss that would take out any argument but the TPY argument.
In his closing, our counsel, Mr. Justus, had another great metaphor - he said they took the 2022 plan which was an apple full of worms and swapped it with the 2025 plan that is a watermelon full of snakes. Just because they changed one thing doesn’t fix the internal problems with the plan. Said another way, the 2022 plan violated UDO with the TPY and the new one didn’t fix that right AND broke a bunch of other rules.
Hayes Barton Arguments 2-6: The City Violated it’s Own UDO Rules by Rubber-Stamp Approving the 2025 plan
Somewhat ‘underneath’ that macro argument are the 5 areas where the 2025 plan violates the UDO - Open Space, TPY encroachments, TPY height 1, TPY height 2 and parking.
BOA Ruling
The meeting started late and had a bare minimum of 3 BOA members show up and even though agreeing to a 1:30 start they didn’t show up until after 2pm (showing a naked lack of respect for the BOA, the citizens and everyone’s time).
The members that did show up were:
BOA Chair Swink
BOA Member Midgett
BOA Member Torrey
Finally around 4hrs of the hearing at 6pm, we got to a vote:
Motion to Dismiss - the BOA voted unanimously 3-0 against Hayes Barton - this negated the Open Space argument (number 1 in the above picture)
TPY Encroachment - the BOA voted unanimously 3-0 against Hayes Barton. (seeing a trend yet?)
TPY Height 1 and 2 - the BOA voted unanimously 3-0 against Hayes Barton.
Parking - The City changed the UDO to get rid of all parking requirements so this section was previously agreed to not be an issue (legally, but ethically let all this sink in - you can build anything you want now in Raleigh without parking requirements 🤯)
City Lawyer’s Closing Argument Personal Thoughts
I’m a business person and have been in a lot of meetings and lot of heated negotiations. Sometimes you see people drop their facade and show you what they are really thinking and ‘who they are’. Another common pattern I’ve seen is when you are in a debate and the opposing side knows you have them, and they can’t argue something on the merits of the argument, they default to personal attacks.
Robin Tatum Drops the Facade
Mr. Justus did his closing first and argued the case on the merits. He did a great job and I’ve covered the meat of his arguments above.
Then it was Ms. Tatum and Mr. Birch’s turn…
This was a long session and in the closing arguments, Robin Tatum was clearly frustrated with how long the hearing went and Mr. Justus’ arguments and in her closing I feel she dropped her already thin veneer of professionalism.
She launched into her closing by attacking the neighborhood practically shrieking: “You people wanted a wall and we gave you a wall!” She then proceeded to mock Mr. Justus extremely unprofessionally poorly imitating and saying things like” oh you had an apple and now you have a watermelon, two bites of the apple, blah blah blah”.
She then said - “I want to make it clear, I am here representing the City of Raleigh and this idea that we are somehow in cahoots with the developer” (after spending both sessions of the hearings whispering in his ear the whole time and then he would run and check in with Chappell and Singerman).
She further mocked Justus: (she did this in kind of hillbilly-ish interpretation of Justus’ accent “Oh you need 50 feet everywhere, you can’t point to another example blah blah”
Then after spending days arguing parking doesn’t matter, she spent a big chunk of her closing on parking (??) saying our expert had no idea about how to calculate parking spaces (very interestingly the only item she argued on merits was parking -one she had already won).
She then turned to the neighbors in the galley and said: (practically shrieking)
“YOUR problem is you don’t want townhomes in your neighborhood. Well! I suggest you go to the ballot box and not come back to this court to argue this. The one thing they wanted they wanted they got (she’s referring to the TPY wall, she said this like 8 times over the 2 days) and now they are back and they don’t like the wall either.
After that Mr. Birch (Developers lawyer) got up and, again, didn’t address the merits, just personally attacked our expert witness.
Personal take aways from Ms. Tatum’s closing/rant
Ms. Tatum revealed a lot in this 3-4m ‘closing:
The city is 100% in cahoots with the developer
Their strategy was: Tatum goes after Justus and the Neighborhood, Birch disparages the witness.
The city+developers knows it doesn’t have a good argument on anything but the parking
Even on parking, I thought it was very odd that she purposely brought it back up, almost as if she was still worried about it?
The city is frustrated that citizens don’t just lay down and let them change what they want and get builders to build what they want where they want how they want
The developers are frustrated and want to break ground, build their 17 townhomes, destroy the character of Hayes Barton, make their $17-20m and move on to the next neighborhood.
The one area I think we need to take Ms. Tatum to heart on is her advice to “go to the ballot box”. We need to get much more serious about elections at the Mayor and City Council level, that needs to turn into our third front on this battle. More on that later.
At the end of the day, outside of the closing, the City’s argument is:
The city interprets the UDO to be quite different that is what written all the time - e.g. the 50-ft minimum and the 30-ft TPV setback is a ‘recommendation’ and 20 is fine, and so on.
Structures aren’t structures
Open space can be any little spot of green on the plan
Next Steps - We lost this battle, but WILL win the war!
I’m sure that Mr. Justus and our neighbors on the case will file an appeal to the Wake County Superior Court. I have a lot of questions on the process here and will sync with Frank and share what I learn. This battle is far from over, as a novice, I feel there were 5-8 areas where we have a valid appeal argument.
Hopefully in appeal, common sense will prevail and the Judge can look at these two plans and the city’s capricious arguments based on word definitions and ‘interpretations’ and see that the City is clearly in the wrong here.
I’ll keep you posted on what’s next, as a reminder, this is the best time to donate so we can push hard into this next phase. Details here.
Detailed Outline of the BOA meeting
The above was the highlights, here’s our more detailed notes from the very long meeting in outline format. There are three sections that represent the times between breaks in the session.
Section 1: This was the continuation of the expert testimony preceded by a lot of waiting for the BOA members to show up.
Section 2: There was a lot of questions raised by Mr. Justus about how the city rammed this through and is changing the definitions of words to justify that fast-tracking.
Section 3: Final session ending in the disappointing, but not surprising vote.
In the notes Defense is Hayes Barton.
Section 1: July 22nd Continuation of Special City Raleigh Board Meeting
General Notes
No official court reporter present; meeting recorded.
Continuation from previous hearing; witness still under oath.
Key Witness: Keegan McDonald
Land Development Manager, City of Raleigh (since Dec 2018).
Former Senior Planner (2018-2021), Supervisor Zoning Amendments (2021-2024).
Education: BS, University of Maryland; Master’s in Planning, USC.
Certified with American Institute of Certified Planners.
Approved and signed subdivision plan on April 4, 2025.
Reviewed appeal after approval.
Testified plan complies with UDO requirements; no discretion to deny compliant plans.
Open Space Requirements Dispute
Requirement: 20% of site or 1 acre (whichever greater) → 1 acre applies.
Width: 50 ft minimum with 60% contiguity.
Plan provides 1.137 acres in two open space areas.
City's interpretation:
Each open space must include at least one 50x50 ft block.
Connected areas to 50x50 block count toward total.
Methodology used for 12+ years, including prior 908 Williamson approval.
Appellant expert argued entire space must be 50 ft wide or pass "football throw" test.
City rejected this interpretation.
Transitional Protective Yard (TPY) Issues
Type B1 TPY included (20 ft width).
UDO Section 7.2.4 governs:
Walls allowed per 7.2.4.D2.
No distinction between retaining/screening walls.
No limit on number of walls.
Buildings/structures prohibited within 10 ft of TPY.
Walls not considered "structures" for TPY.
Legal & Procedural Issues
Defense objected to legal interpretations by witness.
City argued McDonald is a qualified fact witness.
Exhibits introduced: approved plans and city affidavit.
Hearing must finish same day due to prior delays.
Comparative Plan Analysis
First approved plan (2022) used same open space methodology.
Similar TPY configurations cited:
Bradford Subdivision, Laurel Hills Townhomes, Stonebridge.
Site plans must meet UDO.
Cross-Examination Highlights
Defense questioned "minimum width" interpretation.
Argued city added qualifiers not in ordinance.
Pointed out TPY widths are 20 ft, not 50 ft.
Challenged logic of narrow connectors counting.
City defended interpretation as consistent with 13-year interpretations.
Section 2: Legal Definitions & Development Process
These are Mr. Justus arguments:
Structure vs. Building Interpretation
Webster's: "Anything constructed" = structure.
City: Context from ordinance matters; cites Article 12.1.
Road Construction Standards
Raleigh design and construction standards apply to alleys.
Exhibits 11-12: road design requirements.
Setback Requirements & Exceptions
Section 1.5.4: prohibits buildings/structures in setbacks.
Exceptions: driveways, fences, walls.
Attorney: if walls weren’t structures, no need to exempt.
TPY Requirements Recap
10 ft distance required from buildings/structures.
Walls have specific height/compatibility rules.
B1 TPY: 6.5 ft minimum wall height from neighboring side.
Approval Process Timeline
Plans submitted March 20, approved April 4.
2 pre-submission meetings attended by:
Justin Rivera, Jason Meadows, Daniel King, Zachary Manor.
Eric Hodge not included in current plan.
Open Space Calculation Changes (city’s argument is you can piece together, don’t need 50 ft - ‘min’)
Previous: 1 acre with central 50 ft strip.
Current: larger area but some narrower sections.
Contiguity met through perimeter areas.
Procedural Objections & Time Pressure
(there was a discussion about continuing another day, that can’t happen as has to be by 8/2)
Ongoing lawsuit related to approval.
August 2nd deadline.
Agreement to limit remaining testimony time.
Part 3: Hearing Format & Final Arguments
Hearing Structure
Board of Adjustment hearing.
Time limits: 30 mins/witnesses, 10 mins/closings.
Res judicata motion addressed before merits.
Board aims to finish in one session.
Res Judicata Motion
The city lawyer pointed out that the Res Judicata motion (motion to dismiss) was sitll open→
City: prior Board decision covered same open space grounds.
First appeal (2022) included:
Townhouse use, compact standards, open space, TPY.
Superior Court reversed only on TPY issue.
Other findings remain binding.
Open Space Calculation Details (City expert argued you can connect pieces to get to 50x50)
Method: Each open space must include 50x50 ft block.
Connected smaller widths allowed.
Total area must still be 1+ acre.
Three open space areas identified.
60% contiguity also met.
Witness Testimony - Justin Rometta (Zoning Administrator)
5.5 years in role.
Reviewed original and revised plans.
Same open space methodology used.
BOA previously found compliance; court did not challenge method.
Engineering Testimony - Jason
PE since 2010; 95% work in Raleigh.
Familiar with UDO.
Used 50x50 block method for both plans.
Identified two open space areas.
Opposition Testimony - Mr. Justus
Argues res judicata inapplicable due to plan changes.
Claims "minimum 50 ft" means entire open space.
Opposes block methodology.
Disputes whether road is "structure" under setback rules.
Argues open space reduced to fit 17 units.
Technical Compliance Points
TPY revised per court.
Wall heights challenged.
Road placement questioned.
Parking issues withdrawn.
Board Decision
Motion to grant res judicata dismissal approved 3-0
Prior decision found to cover open space issues.
Hearing continues on TPY questions only
Three-vote majority needed for board action.
Board votes 3-0 against the 3 TPY questions
Adjourned