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Neighborhood group files suit against homebuilder to halt Elizabeth project

Phillip Lewis quoted in article by Ashley Fahey – Staff Writer Charlotte Business Journal 7/27/2018

A Charlotte neighborhood group is suing a homebuilder seeking to build a high-density townhouse project, alleging that it violates deed restrictions for the property where it's planned.

The Elizabeth Community Association on Thursday filed a civil summons and complaint against Pulte Home Company LLC, an entity of Atlanta-based PulteGroup Inc. (NYSE: PHM), over what the group claims are violations to 80-year-old deed restrictions for the property. The lawsuit was filed with the state Superior Court.

Pulte plans to develop a 124-unit townhouse project, Elizabeth Glen, on a roughly 10-acre site generally bounded by Dotger, Emerson, Deacon and Kenmore avenues. The site was the longtime home of the Martha Washington Apartments, an 82-unit apartment development built in the 1940s that was recently demolished. Pulte closed on the site earlier this year for $9.9 million.

John Wieland Homes, owned by Pulte, is the builder for Elizabeth Glen, which is expected to include townhouses starting in the upper $400,000 range.

The ECA says Pulte has disregarded two deed restrictions laid out for the property where Pulte plans to build. The deed lists 10 restrictions, two of which are no longer enforceable, for the property that dates back to 1938. The ones cited in the suit state that development for the property should adhere to specific setbacks and lot widths, which ECA alleges the Pulte project is in violation of based on the type of high-density project detailed in site plans.

The site is within the Rosemont subdivision of Elizabeth. The suit says deed restrictions are common throughout Rosemont and were created "as part of a general or uniform scheme of development intended to preserve the nature and character of the neighborhood."

Paul Shipley, president of the ECA, previously said the neighborhood group would like to see a project that's less dense and more in keeping with the rest of Rosemont, which he says the deed restrictions enforce.

"We’re not against the project, per se," Shipley said last week. "There's plenty of people in the neighborhood that are frankly upset about the destruction of the mass tree canopy that was on the property, so we want to figure out a way to get that back (as well as) more green space and less density on part of the property."

Shipley wrote a letter to Pulte on July 26 stating that residents of Rosemont had a "strong personal interest" in the matter and questioned how Pulte would comply with the covenants in its final plans.

According to the complaint, Pulte, which is being represented by Phillip Lewis at Horack Talley, said earlier this month that the deed restrictions referenced are either "unenforceable" or there are "procedural or technical hurdles" to enforce those restrictions and, therefore, Pulte would be able to proceed with the project. A copy of that letter was not immediately obtained.

Lewis could not be reached by deadline to further discuss Pulte's response. A Pulte spokeswoman submitted a statement to the Charlotte Business Journal when asked about its response to the complaint.

"At this time, we are working to address the concerns brought forward by the Elizabeth Community Association," the statement read. "We are optimistic that we will be able to reach a mutually beneficial agreement soon. Our top priority is to continue to make a positive impact in the communities where we build."

In the complaint, the ECA says Pulte has apparently continued work on the site, with grading having recently "begun to accelerate." The neighborhood association says it would like the court to enter a declaratory judgment stating the deed restrictions are enforceable and that the project, as it currently stands, would be in violation of those restrictions. It's also seeking an injunction to prohibit any further construction on the site as well as to recover damages in excess of $25,000.

Pulte has 30 days to respond to the suit.

To read the article in its entirety, please follow this link to the Charlotte Business Journal.

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