By JIM GENARO

WEAVERVILLE — Despite an ongoing legal battle, the Weaverville Town Council voted unanimously last Monday night to allow a developer to begin the process toward a possible rezoning of a controversial property.

Weaverville Partners, which owns a tract of land adjacent to the Ingles Market on Weaver Boulevard, is seeking to rezone its property from R1 residential zoning to C2 commercial.

The group had requested a similar rezoning in October 2005, but council at that time had declined to take action on the request.

Weaverville Partners then changed plans and submitted a proposal to build 93 apartments on the property to the town’s Zoning Board of Adjustment.

The ZBA rejected that request and Weaverville Partners sued in Buncombe County Superior Court to overturn the decision.

That court ruled in favor of the developers, but the town has since filed an appeal with a state Court of Appeals.

By returning to request a rezoning, Weaverville Partners attorney Craig Justus said, “We are trying to create options for ourselves and for the town to ultimately settle how that property is going to be developed.”

The discussion of whether to allow the request to move forward became heated at points.

Before Justus’ presentation, Council member Marcie Nisbeth questioned why the matter even was being discussed again.

“You can’t just say, ‘We’re not going to let you have a hearing,’” Justus told the board. “That’s just not proper, with all due respect.”

Councilman Al Root replied that if rezoning requests did not need the approval of council to go forward, there would be no reason for Justus to be there.

“You are correct, I am faced with your process of how you expect people to act,” Justus replied. He added that such a requirement is not legal and that his clients were “as a courtesy, trying to follow your practice.”

Mayor Mary Stroud asked Town Attorney Sara Bryson whether the town had the authority to not take action on the request.

Bryson replied that state statutes “are silent about this particular procedure.”

Justus countered that the town’s requirement of a $150 fee for applying to have a property rezoned was “implicit acknowledgment that an applicant, upon paying the fee, is entitled to a hearing.”

Bryson, however, disagreed, saying that payment of the fee does not, in itself, guarantee a hearing and that the fee would be returned if council decides not to hear the request.

However, Councilman Don Hallingse argued that “good government is, when somebody presents a project that has merit, it will get a fair hearing.”

Town Manager Michael Morgan also noted that the board had never formally voted on the group’s rezoning request and that if council voted against it, the developers could not ask for a rezoning for at least one year.

The board’s vote clears the way for the project to be brought before the town’s Planning and Zoning Board, which will make a recommendation to council on whether to rezone the property.

After that, a public hearing and a final vote by council would be required for the rezoning to happen.

In other action, the board voted unanimously to pursue an agreement with the Asheville Alcoholic Beverage Commission to help set up and manage Weaverville’s new ABC store.