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After more than two hours of argument from attorneys representing the Pack heirs, developer Stewart Coleman and Buncombe County, Judge Marlene Hyatt announced that she would closely review the case’s documents before coming back with a ruling on the legality of the Parkside land sale later this week.
About 50 people packed the courtroom benches, many of them wearing anti-Parkside stickers or T-shirts proclaiming “Save the Magnolia,” referring to a magnolia tree on the disputed property.
The lawsuit, filed by the heirs of George Pack, asserts that Pack’s original donation of land around the turn of the century to Buncombe County was strictly intended for public use — and that it would revert to his heirs if sold for private purposes, as the county did in 2006 when it sold a piece of land near City Hall to Coleman. Coleman now intends to build the nine-story Parkside condominium project on top of it. Both sides of the lawsuit have agreed to have Hyatt hand down a summary judgment instead of going through a jury trial.
“George Pack made it abundantly clear exactly what the purpose of this land was — it was meant for a courthouse, for county offices or for public purposes,” Attorney Joseph Ferikes, representing the heirs, said.
Ferikes read from the original deeds, one in July 1901 and another in December of that year, in which Pack stipulated the intended use of the area. He also read from the minutes of the 1900 meeting of the Buncombe County Board of Commissioners where Pack first offered the land. In doing so, Ferikes said, Pack had clearly set up a “dedication” and the county had accepted it — meaning that the land was irrevocably intended for certain purposes only.
Not so, attorneys for both the county and Coleman’s company, Black Dog Realty, countered.
Referring to the plaintiffs as “the alleged heirs of George Pack,” Black Dog attorney Pat Kelly said that Pack simply gave the land to the county “fee simple,” meaning it can sell it as it pleases — and that any notes about the intended use of the property contained in the deed were irrelevant “statements of intent” and not legally binding.
Assistant County Attorney Michael Frue sounded a similar note.
“The important thing is the statement that this is fee simple, clear and unmistakably,” Frue said. “Anything else [such as mention of the land’s intended purpose on the deed] has to be rejected as surplus. If Pack had wanted it to have conditions or revert to his heirs, he would clearly and decisively have stated so in the granting clause.”
He added that parts of the area had been used for purposes against Pack’s original intent before, including the site of the old jail (also in the parcel sold to Coleman).
Ferikes shot back that Kelly and Frue were engaging in “legal gymnastics, telling your honor to ignore this or that part of the deed. This was clearly meant for a courthouse, for county offices, or for public use such as a park — and it has remained so from then until the present day.”
He also said that if the land reverted to them, the Pack heirs would immediately donate it or place it into a trust to maintain it for public use.
After both sides had presented their arguments, Hyatt said that “you’ve given me a lot of reading to do — and I will take all you’ve said under advisement.” She said she would make her decision “before the end of the week.”
As the protesters filed out of the courtroom, activist Clare Hanrahan told Xpress that she felt Ferikes had “argued with heart and soul what Pack clearly intended,” while the other attorneys “tried to confuse things with reams of legalese.” She added: “I’m glad that the judge will be reading through all the documents herself instead of relying on the fragments they [the defendants’ attorneys] presented.”
— David Forbes, staff writer
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My favorite moment came when County Attorney Michael Frue said “they say it’s a park simply because they say it is.” You can’t do better than that for contempt for the public. |
Aug 25, 2008 |
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Didn’t go so well today, did it, Barry. |
 Aug 26, 2008 at |
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Do I smell chainsaw exhaust! |
LOKEL Aug 26, 2008 |
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So what is the verdict? Will there be a mass protest at the council meeting tonight? |
jacquiwe Aug 26, 2008 |
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No, no protest. Council pulled Coleman’s road request off the agenda because the judge hasn’t ruled on the Pack lawsuit. If that’s the reasoning, it might never get back on the agenda, because no matter which side prevails, someone will probably file an appeal. I think we were all misinformed about what would happen yesterday; we thought the arguments had already been made, & the judge was going to rule. |
Aug 26, 2008 |
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The CT is reporting that he judge has all but ruled in favor of the alleged Pack heirs. |
LOKEL Aug 28, 2008 |
