The N.C. Court of Appeals announced Tuesday that it has rejected a lower court’s ruling and has ordered the Fayetteville City Council to approve a special-use permit for Dismas Charities, paving the way for a 100-bed halfway house on the 900 block of Cain Road.
The case made its way to the Court of Appeals after the City Council voted 5-4 in February 2020 to deny the permit. The council said Dismas Charities failed to meet one of eight standards in the city’s ordinance – that the permit “allows for the protection of property values and the ability of neighboring lands to develop the uses permitted in the zoning district.”
The case then made its way to Cumberland County Superior Court, where former Judge Mary Ann Tally on Aug. 3, 2020, ruled in favor of the council’s decision.
Dismas Charities appealed that decision to the Court of Appeals. Dismas is a nonprofit organization that operates a halfway house for federal prisoners in Greensboro and other cities throughout the country.
In its ruling, the appeals court said the City Council must determine whether Dismas had met what is called its burden of production to show that a special-use permit would meet each of the city’s eight standards.
If Dismas meets the burden of production for each standard, and there is an “absence of competent, material, and substantial evidence” to support a denial, then the council lacks the authority to deny the application, the appeals court ruled.
“That is, our Supreme Court instructs that unlike a plaintiff in a civil trial, an applicant for a special use permit who has met its burden of production automatically wins if no contrary evidence is offered,” the appeals court said in its ruling.
The appeals court decided that Dismas met the burden of production and ordered the City Council to approve the permit. Dismas was represented in its appeal by Fayetteville lawyer Michael Porter. Another Fayetteville lawyer, Jonathan Charleston, had represented Dismas in the earlier proceedings.
The issue would never have gone to court had Councilwoman Courtney Banks-McLaughlin voted the way she intended. Shortly after the council meeting, Banks-McLaughlin said she had meant to vote in favor of the permit. The city’s Zoning Commission had recommended the permit be approved.
The proposed site of the halfway house is 901-905 Cain Road, next to Logan’s Body Shop and near Bragg Boulevard. Duplex apartments stand behind the property, and the Shamrock and Scotty Hills neighborhoods lie farther up Cain Road.
According to minutes of a public hearing before the council’s vote on the permit, Charleston said Dismas had met with people living near the proposed site to discuss the project. Among his many other points, Charleston said the re-entry center would be built in a heavily wooded area and would be attractive. He said it would be closely controlled and safe for surrounding neighbors. Property values would not be hurt, Charleston told the council that night, and the halfway house would create jobs and be an asset to the community.
Neighbors told the council exactly the opposite. They said they worried about halfway house residents committing crimes in areas near their homes that already have high crime rates. Residents of the halfway house would be let out to go to work or to take college courses.
Neighbors also complained about what they perceived as a lack of notice that the special-use permit was going before the City Council.
On Tuesday, Russell Jones said he and other neighbors learned about the Dismas proposal three days before the council was to vote on the permit. He said most neighbors would have known nothing about the meeting if a woman had not brought it to a friend’s attention. The woman lives within 500 feet of the site, the distance in which the city is required to notify people of a proposed zoning change.
Had neighbors known about the council meeting well in advance, they would have had time to put together a more cohesive argument against Dismas, Jones said. He said a neighbor, Rafael Ramirez, has since gathered evidence that he believes shows the halfway house would hurt property values.
The appeals court’s ruling doesn’t make Jones happy. He noted that the City Council and a Superior Court judge ruled against Dismas largely over the issue of property values.
“And then the appeals court comes along and in my mind parses words,” Jones said. “To me, it seemed like they were looking for a way to reverse it. But that's just my take on it, of course. I'm probably biased.”
Late last month, another neighbor, George Turner, said Dismas and others involved with trying to bring the halfway house to Fayetteville may not have broken any laws. But he questions why so few people were notified about the council meeting and why Dismas would have bought the land before securing the special-use permit. That’s just not done in the real estate business, Turner said.
Like many of his neighbors, Turner worries most about safety.
“Imagine if you lived on Cain Road like I do and the little old lady two doors down,” he said. “And you know that every morning there's going to be federal prisoners walking down the sidewalk free as a breeze.
“They didn't get caught for speeding on a street. These are the bad guys. And they're going to open the door and let them just go get a job at Burger King or something?”
A similar, though smaller halfway house is operated by Dismas in Greensboro. Plans are being made to expand that facility from 47 to 84 beds. Cathy Bellew, regional vice president of Dismas, is the director of the Greensboro re-entry program. Bellew spoke glowingly at the council meeting about the work that is being done there.
She spoke about one woman who left the program and leased an adjacent building, where she operates a dog-grooming business.
“It’s a testament that if we give people the opportunity to thrive, they will thrive,” she said.
Greg Barnes is an investigative reporter for CityView TODAY. He can be reached at email@example.com. Have a news tip? Email news@CityViewTODAY.com.