News

Attorneys spar ahead of hearing on zoning lawsuit

By Bill Moss, Published: August 24, 2026

A developer is returning fire after the city of Hendersonville sought dismissal of its lawsuit seeking to reverse the city council’s denial of its rezoning request last January.

Advenir Azora Development LLC, a Miami-based builder of duplex, triplex and quadraplex communities, sued the city in March, two months after the city council voted unanimously to deny its request for a rezoning to allow a 180-unit apartment complex on Haywood Road at Blythe Street.

Four weeks after the developer filed its complaint in Henderson County Civil Superior Court, the city responded with a motion to dismiss, claiming Advenir lacks standing to sue because it is not the legal landowner and, further, that it was too late to fix the issue because the deadline to sue over the council’s decision had passed on March 9, the same day the original lawsuit was filed.

In rapid succession last week, the two sides traded punches again, each filing motions ahead of a hearing scheduled for 2 p.m. Monday before a Superior Court judge at the Transylvania County Courthouse.

On Thursday, Advenir attorney Craig Justus filed a new 55-page motion opposing the dismissal; the next day City Attorney Angela Beeker and Assistant City Attorney Daniel Heyman renewed their argument for dismissal in a 29-page motion. The attorneys will meet face-to-face in court on Monday.

In a motion filed Thursday, Justus criticized the city code when it comes to zoning review.

The city's comprehensive land-use plan “requires otherwise lawful forms of residential development including the (Haywood Road) project to run a discretionary conditional rezoning gauntlet rather than regulating them through clear, uniform and generally applicable district standard,” he said. “Discretionary is too nice of a word. Through this conditional rezoning gauntlet, and the facts demonstrated in this case, the City can reject new housing development for any reason or no reason at all.”

Advenir's engineers modified the plans numerous times to accommodate city planners’ wishes and “satisfied the objective standards applicable to the R-15 zoning of the property and the requested (conditional zoning) district," the attorney added. “Nevertheless, City Council denied the application resting on trumped up reasons contradicted by the City's own staff review, the Fire Marshal's approval, the project plans, and surrounding development patterns.”

The denial came despite Advenir’s concessions, including reducing the number of units from 200 to 180, increasing setbacks and buffers, relocating an internal road and adding fire sprinklers, the plaintiffs said. The zoning application asked for a density of 5.74 units per acre, well under the 8.82 units/acre R-15 zoning permits.

Citing previous legal disputes in North Carolina, Justus said Advenir, because it had a conditional contract to purchase the property, “is considered in equity the ‘owner’ of the land and has the proper standing to contest City actions denying development approval.”

The developer’s motion also noted that the General Assembly just last month enacted a new law that “expanded or modified the remedies available to developers holding contracts to purchase land to allow them to challenge rezoning denial decisions as being beyond statutory authority or in violation of constitutional mandates …”

Although Monday’s hearing is scheduled to be for the purpose of arguing the city’s motion to dismiss, both Justus and the city’s two attorneys devoted much of their motions last week to arguing — or rearguing — the principal dispute.

At the close of the public hearing last January, the council denied the rezoning request, citing inconsistency with the comp plan’s designation of the Haywood Road at Blythe Street area as Family Neighborhood Living, encouraging single-family detached housing; inadequate access
for emergency services, “lack of interconnectivity,” incompatibility with surrounding single-family neighborhoods, and grading and environmental impacts,” the city said.

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.

The property owner is not currently a party to this lawsuit, and there is no allegation in the complaint that the property owner joined in the application for the rezoning, the city said.

Beeker and Haymond concluded their motion on Friday by repeating the original foundation of the city’s motion to dismiss — that the developer missed the deadline for adding the property owner. The council vote took place on Jan. 9 of this year.

“The 60-day statute of limitations therefore expired on Monday, March
9, 2026,” they said. “Plaintiff should not be allowed to add the property owner at this juncture and have the cause of action relate back to the original filing date for statute of limitations purposes. 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” under North Carolina’s rules governing civil procedures.