Last August, Buncombe County Superior Court Judge Marlene Hyatt ruled in favor of the Pack heirs' claim that the 0.2-acre sliver of property that Buncombe County had sold to developer Stewart Coleman in 2006 was off limits for private use. According to the heirs, the deed for the property that Pack donated to Buncombe County in 1901 includes a stipulation that it be preserved for public use. Coleman appealed that decision.
During the May 19 hearing, the attorneys were given 30 minutes apiece to make their cases, and both legal teams appeared to have stuck to their original talking points.
"The point we made was that this property has been held in the public domain since 1901," Asheville attorney Joe Ferikes, who represents the Pack heirs, told Xpress. "The deeds were recorded, and the property was transferred to the county to be used only for public purposes. And the actual use of this property since that time has actually been just that."
The 2006 sale to Coleman for his proposed Parkside condominium project violated the intention of Pack's donation, Ferikes told Xpress. "You can't just violate the terms of the dedication by conveying the property to a private party for private purposes."
Pat Kelly, the Charlotte-based attorney representing Black Dog Realty, says that position results from a misreading of the deed. The property transfer, Kelly contends, was a fee-simple, absolute transfer of interest -- "essentially, a full and complete ownership without conditions or restrictions."
"Which means," Kelly told Xpress, "The county has basically the right to do anything they want with that property."
Furthermore, says Kelly, a history of use as a public area is not the same as officially dedicating the property as a park.
A panel of three judges heard the case, though a decision is not expected for several months. In the case of a split vote, the loser automatically has the right to appeal to the state Supreme Court. If the decision is unanimous, the loser must file for appeal, and the Supreme Court may refuse to hear the case.