It is a decision that could end up in court as Franklin Jones, an attorney who practices law in Halifax and represented MaSuki, said he believes there is a case for appealing council's decision.

He declined to go into specifics, saying, “By the rules of ethics I can't comment on a potential pending court case.”

Council decided following a lengthy public hearing it disagreed with two key elements in the conditional use permit application, going against findings by the city's Planning and Development Department that the development would not injure adjoining property values and would be in harmony with the surrounding area.

Councilman Wayne Smith, who gave the most detailed reasons for voting against the permit, said during a break following the vote, “I feel like we made the right decision.”

Asked about the potential for litigation, Smith said, “I don't think it will (go to court). Time will tell.”

Smith cited what he called conflicting statements made by Thomas Barrett, a certified property appraiser, on the impact the fair market value complex would have on the existing homes in the community.

He said the residential section of the community would be sandwiched between the MaSuki development and the nearby Fairfield Apartments, which are subsidized apartment units.

Smith said property owners who bought homes at Cross Creek based their decision to do so on the original 2005 council decision to rezone the land off Highway 125 as a planned unit development.

Referring to Mark Gregory, developer of the proposed apartment complex, Smith said, “Mr. Gregory purchased land zoned as a planned unit development with the hopes of changing the zoning the city council had set. I hope we don't get investment and speculating mixed up. The homeowner purchased the housing as an investment that would appreciate in the future. Although speculators are making informed decisions, speculation cannot usually be categorized as traditional investing.”

Jones, in closing arguments before the vote was taken, implored council to only consider evidence in the case. “We've had a number of people who have valid interests. They had legitimate concerns. Concerns don't mean you should consider them. You have to apply the law. You are sitting as a juror in a criminal case. You have taken an oath that you will uphold and follow the law.”

Jones said planning and development did a thorough job before the matter went to the planning board and then to city council, which last month decided to withhold making an immediate decision on the conditional use permit.

Jones said expert testimony was provided that traffic coming to and from the complex would not overburden Highway 125.

Expert testimony was provided that over a 12-year period similar complexes did not affect property value unless they directly backed up to adjoining property, Jones said.

The only property the proposed complex would back up to is property MaSuki owns, said Jones. “The only one affected would be MaSuki.”

He said remarks made by residents on the impact of property values were purely speculative. “If we only allowed sentiment by neighbors we would have no growth. Growth causes good things.”

Addressing the proposal's harmony with the surrounding area, Jones said, referring to Fairfield, “There is an apartment building adjacent that's not fair market value but subsidized housing. This is a fair market value project. If you don't approve it here, where would it be approved?”