News

City seeks dismissal of lawsuit over denial of rezoning request

A depiction of the density of residential units in nearby developments is included as Exhibit 1 in a developer’s lawsuit against the city of Hendersonville over the denial of a rezoning application for a 180-unit apartment community on Haywood Road east of Blythe Street. [ADVENIR AZORA DEVELOPMENT LLC V. CITY OF HENDERSONVILLE EXHIBIT]

By Bill Moss, Published: June 22, 2026

The developer who sued the city of Hendersonville over the council’s rejection of a rezoning request on Haywood Road lacks standing to sue because it is not the legal landowner, city attorneys argue in a motion to dismiss filed in Henderson County Superior Court.

And in a potential Catch 22, City Attorney Angela Beeker and Assistant City Attorney Daniel Heyman also argue that it’s too late to fix the issue because the deadline to sue over the council’s Jan. 7 decision passed on March 9, the same day the original lawsuit was filed.

“Because the defect of failing to add the property owner as a party to the proceeding cannot now be cured, the complaint should be dismissed,” the attorneys say in the motion filed on June 5.

The property, valued on the tax books at $664,800, is owned by commercial real estate broker Jeffrey Justus, who bought the land for $500,000 in August 2015.

Because the landowner’s interest would be affected by any decision a court were to make, the property owner “was required to be a party-plaintiff” in the developer’s lawsuit, the city argues.

Amid the biggest anti-development uprising the city has seen in years, the council voted unanimously in January to deny the request to rezone the 21-acre tract on Haywood Road for a 180-unit “missing middle” housing project — a density of 5.74 units per acre.

In the lawsuit it brought in March, Advenir Azora Development LLC, a Miami-based builder of duplex, triplex and quadraplex communities, called the city’s zoning rules unconstitutional and described the council’s denial of the land-use application as arbitrary and unsupported by evidence.

City planners supported the project through nearly a year of review, the complaint said, and Advenir modified its plans multiple times to accommodate staff requests — reducing units from 200 to 180, adding buffers, shifting road placement to protect Britton Creek and providing 55 percent open space when 40 percent was required.

Advenir’s complaint, filed by attorney Craig D. Justus, also pointed to numerous nearby developments — Britton Creek condos at more than 10 units per acre, Ewbank Gardens Condominiums at 13 units per acre, and Haywood Townes with duplex and triplex units — all approved in the same vicinity.

In their motion to dismiss, Beeker and Heyman also argue that a court order to authorize a rezoning would violate the separation of powers doctrine, since rezoning is a legislative function belonging to city council, not the judiciary.