The status of the February 1 Place parking deck and Westin Hotel complex is on hold. It is still waiting on a decision by NC Superior Court Judge Andrew Comer on whether to grant Rocky Scarfone, the owner of Cone Denim Entertainment Center, a temporary restraining order (TRO) to keep the city from beginning construction on the parking deck until his court case can be decided.

The temporary restraining order was requested by Scarfone on Jan. 29 and Comer said that he hoped to have a decision by Feb. 16.

Scarfone’s attorney Amiel Rossabi requested a second hearing from Comer after he received more information from the city as a result of a public records request. Even attorneys can’t get public records from the City of Greensboro in a timely manner.

If the temporary restraining order isn’t granted, then it simply becomes a question of how much the City of Greensboro will pay Scarfone for the easement across the parking lot where the parking deck is going to be built. Once construction gets underway the easement is gone, which is why Scarfone requested a TRO.

This all should have been settled before the parking deck was designed, when a reasonable and likely far less expensive accommodation could have been made for Cone Denim Entertainment Center to continue to operate.

If the TRO is not granted, Scarfone says it will put Cone Denim out of business and he will seek upwards of $5 million from the city for the loss of his business. By contrast, the city has offered to pay $55,500 for the easement and claims that is a fair price. So there is quite a bit of negotiating that would have to be done to reach an agreement. The negotiations between Scarfone and Greensboro began in July 2017, and Scarfone didn’t file the lawsuit and request for a TRO until after the City Council voted on Dec. 19 to condemn the easement and move ahead with the project.

It will be up to the courts to decide if Scarfone can hold up the construction of the deck while several legal questions are settled. Rossabi argued in court that the parking deck doesn’t serve a public interest because it’s not the city that primarily needs parking in that location, but that the Westin Hotel is the primary reason the public parking deck is being built on that site.

The city has no parking study that provides evidence a parking deck is needed at that location. The most recent downtown parking study was completed in 2009, and it did not list that site as one of the five prime locations for a future parking deck.

Rossabi also challenged the city’s statement that the current parking decks are full and had videos of the parking decks on random afternoons. If Comer is convinced that Rossabi’s arguments have validity, then the construction of the parking deck could be held up for years while the case winds its way through the courts. If the city doesn’t improve the speed at which it produces public documents – which it is required by law to provide “as promptly as possible” – it could take longer.

In court, Bruce Ashley of Smith Moore Leatherwood representing Greensboro didn’t argue with Rossabi’s assertions, but simply stated that the city had the legal authority to condemn land for a public purpose and that a public parking deck was a legitimate public purpose.

The city contract to build the Westin Hotel parking deck is certainly advantageous to Elm Street Hotel LLC, which the city contracted with to design and build the parking deck for $30 million. The $2 million design contract pays Elm Street Hotel LLC a 10 percent administration fee for the design, plus $200,000 for legal fees.

The city approved hiring Kimley-Horn to design the deck, and from the invoices it appears that what Elm Street Hotel LLC has done to earn its $165,000 administration fee was forward the bills from Kimley-Horn to the city for payment. If, by contrast, the city had hired Kimley-Horn and paid the bills directly, it could have saved the $165,000 administration fee and presumably the $200,000 in legal fees. The Westin Hotel couldn’t be built without the public parking deck, so it seems odd that the city is paying Elm Street Hotel, that is building the hotel, to design a parking deck that is going to primarily benefit Elm Street Hotel.

The way the city is treating the businesses on South Elm Street that will back up to the parking deck is dramatically different. According to Scarfone, the parking deck will put Cone Denim out of business. Even if that is an exaggeration, for an entertainment facility not to have access to the back of the building is a severe handicap. You don’t see the buses and trucks that bring the equipment and entertainers to the Carolina Theatre parked out in front on Greene Street because they are always behind the theater. But one of the city’s suggestions for Cone Denim was that all the equipment and the entertainers be brought through the front door on South Elm Street.

By comparison, the Dixie Building and 101 South Elm Street, in the same block as Cone Denim, both get bridges from their upper floors to the parking deck designed and built by the city – a matter that the City Council has never publicly discussed. The bridges to the parking deck will enhance those buildings and presumably increase their property value, while removing the access to the back of Cone Denim will certainly decrease the value of that building as an entertainment venue.

It may be legal – the courts will decide that issue – but the city has certainly picked winners and losers in its plans for this project. As is often pointed out by City Councilmember Justin Outling, the City Council is supposed to set policy, not manage the details of projects. The fact that the city picks winners and losers for city projects would be a good policy for the City Council to discuss. Is it going to be the policy of the City Council to allow the staff to decide who gets benefits paid for by the people of Greensboro and who gets put out of business when the city builds a new building?

If Comer rules against granting the TRO then the city can move forward with building the parking deck and Scarfone’s lawsuit will be about how much the city has to reimburse him for the property it has taken because the easement will have a seven story parking deck on top of it and the parking deck isn’t going anywhere.