After over six months of negotiations, on Monday, Jan. 29, Rocky Scarfone and the City of Greensboro faced off in court over an easement to the back door of Cone Denim Entertainment Center at 117 S. Elm St. that the Greensboro City Council voted to condemn on Dec. 19.
The city’s plans for the property include a public parking deck and a Westin Hotel built over a portion of that deck. It is a complicated deal that required the North Carolina General Assembly to pass a special bill to allow it to go forward.
On Monday, Amiel Rossabi, representing Scarfone, and Bruce Ashley, representing the City of Greensboro, appeared in the court of North Carolina Superior Court Judge Andrew Comer to argue about a preliminary injunction to stop the city from moving forward with the construction of the parking deck, requested by Rossabi on behalf of Scarfone and Greater Greensboro Entertainment Group, which does business under the name Cone Denim Entertainment Center.
If brevity wins the day, then there is no doubt Comer will decide in the city’s favor and not grant the temporary restraining order.
Rossabi spent about an hour presenting his case; Ashley, an attorney with Smith Moore Leatherwood, took 10 minutes.
Rossabi was trying to make two points one that not granting the temporary restraining order would cause his client irreparable harm and two that he had a good case that the city had no right to condemn the property. So he covered a lot of territory.
In an hour, Rossabi had plenty of time to make a lot of accusations, and he did. But one point he tried to drive home was that the primary purpose of the deck was to benefit the Westin Hotel and the public parking was an incidental benefit.
Rossabi noted that the last downtown parking study was commissioned in 2008 and presented in 2010, and that parking study did not recommend a city parking deck on the site.
In fact, the primary recommendation of that report was that a parking deck be built two blocks south and one block west, between South Greene Street and South Elm Street just north of McGee Street. The report recommended five possible sites for parking decks and the Westin Hotel site is not one of the five.
Rossabi said that if the parking study, “is the basis for this then there is no basis.”
He stated, “A preliminary injunction is the only way to go in light of the evidence presented and the evidence not presented.”
Rossabi also told the judge that they needed discovery to obtain city documents and depositions to get to the facts of the case. He said that is the evidence not presented because he doesn’t have it and hasn’t been able to get it.
Rossabi noted that the Elm Street Hotel partners had been trying to build a hotel at that location since 2008, and all of their plans included public funding for a parking deck.
He brought up the fact that the Showfety property on the corner of East Market and South Davie streets was appraised at $655,000 and bought by the city for $1,025,000 after the city said it had a new appraisal for $1,070,000. He said that the only appraisal he had been provided was for $655,000 and added, “I said they falsified documents because that is what they did. They falsified documents.”
Rossabi said that there were allegations that City Councilmember Nancy Hoffmann had been “promised things of benefit” from the Elm Street Hotel group and that City Councilmember Tammi Thurm worked for Randall Kaplan, one of the partners in the Elm Street Hotel group, when plans for the hotel were being made.
Rossabi said, “I need to put some people under oath and ask, ‘Did you receive something of value or benefit to vote the way you did without regard for public benefit or value?’”
Rossabi added that the city claimed that an internal study of parking needs by the Greensboro Department of Transportation was done, but he had not been provided any documentation of that study.
Rossabi said that not granting the preliminary injunction would cause irreparable harm to his client, but granting a preliminary injunction would not harm the city.
He also said that the city had not provided him with the documents he had requested, which according to the city prove that there is a public need for a parking deck at that location. He noted that the city claims Lincoln Financial is going to add about 600 employees who will need parking, but that he had been provided no documentation at all about that.
He stated that his client needed the preliminary injunction to get more evidence.
Rossabi also noted that the 10-foot wide easement the city had established from East Market Street to the rear of the buildings facing South Elm Street, including Cone Denim, was not wide enough for a bus with a trailer, and it wasn’t wide enough even when the city had promised a 16-foot easement. Plus the easement was blocked by electrical equipment, which the city said might take six months to move, so there was no access to the back door of Cone Denim and the alley was subject to a construction easement, which meant the contractor could close it completely whenever he found it necessary.
Rossabi said that access to the back door was required by the acts booked through Live Nation, and without that access Cone Denim would likely lose that contract to bring national acts to downtown Greensboro.
Scarfone, in an affidavit, said that even if Cone Denim didn’t lose the contract with Live Nation, Cone Denim would not be able to book the top acts if it didn’t have access to the back door.
By comparison, the presentation by Ashley on behalf of the city was short and to the point. Ashley noted the statute that gave the city the right to condemn property and that public parking was one of the uses listed in the statute. He noted that the city already owned the property and the issue involved an 8.5-foot easement across that city owned property.
Ashley said, “The question really does come down to can a municipality condemn property for public parking.”
He noted that as long as the public got to use the parking facility, every space didn’t have to be available to the public.
Ashley said, “The statutes are very clear that building a public parking deck is a public purpose.”
He also said, “The 2010 parking study very much projects additional parking needed in this area.”
Rossabi had cited a case involving Caesar Cone, where the question was whether the use of the property was a public purpose.
Ashley cited a case involving the FedEx facility at the Piedmont Triad International Airport, where condemnation of land was challenged on the grounds that building a FedEx facility was not a public purpose. But the decision was that the land could be condemned.
Judge Comer asked, “Don’t you still have to show that it is for a public purpose or use?”
Ashley said, “The governing body of the municipality is charged with making the decision.” He added that all the proper procedures had been followed.
Comer noted that the allegation made by Rossabi was that the procedures hadn’t been followed and questioned whether the City Council saying it was for a public purpose was enough to make it a public purpose.
Ashley maintained that if Scarfone had damages he should be pursuing a claim to collect damages, not trying to stop the project.
Comer said, “Aren’t you in essence destroying the business?”
Ashley said that was again an issue for damages, not whether the project could go forward or not.
Comer is expected to make a ruling on the request for a preliminary injunction this week.
Whatever that ruling, the lawsuit by Scarfone can continue. But without a preliminary injunction, the construction of the parking deck can also go forward.
If the parking deck is built it’s going to be extremely difficult for Scarfone to get his easement back.