Zoning or subdivision?

Published 12:56 pm Wednesday, October 21, 2015

Town says opponents should ask a lawyer


By Alyse Stanley

Staff writer

Opponents of the controversial housing development at Pierceville claim town administrators don’t know their own ordinances, and that the proposal should have been killed months ago. But the town says it’s the opponents who are confused.

In August, the Smithfield Planning Commission denied recommending approval of the project to the Town Council. In two 4-3 votes, members did not recommend changing current zoning or the town’s future land use map for the construction of a Hearndon MC Builders, LLC, project which calls for 151 housing off Grace and Cary streets in downtown Smithfield.

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The town’s subdivision ordinance grants final authority to the planning commission’s rulings, said Mark Gay, an opponent of the development. This legislation extends to rulings on subdivision plats or public improvements plan submissions.{mprestriction ids=”1,2,3,4,5,6″}

Gay lives in Goose Hill, which is located across the street from the proposed development.

But so far, matters related to the proposed development have been subject to the town’s zoning ordinance, not its subdivision ordinance, said Planning and Zoning Administrator William Saunders.  On questions of zoning, the planning commission is limited to recommending acceptance or disapproval to the Town Council.

For projects involving changes to legislation — such as rezoning — the town council needs to approve any changes, said Saunders. Projects that don’t require areas to be rezoned or the future land use map to be changed don’t have this step. That might be where residents are getting confused, he said. 

The subdivision ordinance is separate from rezoning and land use changes, Saunders said. 

Pierceville opponents do not see it as a separate ordinance and further argue that the subdivision ordinance should hold precedence, as the town adopted it one year after adopting the zoning ordinance.

Further supporting their claims, they believe, is Article 1.D of the subdivision ordinance. Article 1.D of the subdivision ordinance states that it is the superseding document should any of its provisions “impose a greater requirement or a higher standard than is required” of other town ordinances.

As the stricter of the two documents, the subdivision ordinance would therefore govern, argued Gay.

However, this simply is not the case, according to Smithfield Town Attorney William Riddick.

The subdivision approval process begins when the developer has submitted a plat and the land for the proposed property is properly zoned. Hearndon isn’t at that point yet, Riddick said. The developers applied to rezone the Pierceville property from community conservation to suburban residential, not approve a plat.

Thus, the planning commission and town council are still abiding by the rezoning ordinance, he said — the subdivision ordinance has yet to come into play.

Pierceville opponents refuse to believe that the subdivision ordinance isn’t applicable, said Riddick.

“They think we’re acting illegally and that we don’t know the law, and none of that is true,” Riddick said.

Riddick said he suggested they ask an attorney who has experience in land-use law since they rejected his explanations.

Still, some residents chastised the council for what they perceive as a failure to abide by its own ordinances.

“Why do we have a planning commission if the town council is not willing to listen to them?” said Betty Clark, a Smithfield resident. She called for the commission’s disbandment if the council refused to respect its authority. It would save residents’ money at least, she said.

In the case of a rezoning, the planning commission makes a recommendation to the town council, which has the final decision making power, said Saunders. As for the subdivision ordinance, that comes after a rezoning and is not required to go the town council, he said.

In response to Pierceville opponents, Council member Milton Cook replied that no resident has approached him to ask his opinion about the project. He challenged attendees to seek out council members, “instead of giving accusatory remarks and accusations that are pretty insulting and hurtful.”

The developers have yet to make their case to the council, he continued. Until then the council wouldn’t have received all the necessary information to form an official opinion, and it’s their duty to provide impartial judgment, said Cook.

“The town council owes an applicant the right to present their case. They’ve paid the money and they should be allowed to talk.”

Other councilmembers said they did not question Riddick’s reading of the legislation.

Cook said part of his job was putting employees in places he trusted them, so that he can rely on their expertise.

“Am I an expert in all of our town’s ordinance? No I’m not. I become educated when I need to be,” he said. For indicating that need, he turns to Riddick.

Mayor T. Carter Williams declined to comment. “I’m leaving everything up to Riddick. We’ll just see how it pans out,” he said.

Another point of contention is the presence of Hearndon’s representative at the Aug. 25 Public Buildings and Welfare Committee.

There, Melissa Venable, founder of Land Planning Solutions, of which Hearndon is a client, requested a work session with the council to discuss the future of the project. This would take place before the scheduled public hearing so they could edit their application per the council’s suggestions. She also passed out several documents explaining the application to the council.

Riddick informed Venable that there was no precedence for such an agreement, and nothing in the council’s ordinances allowed for it. He told Venable to consider putting off the hearing if she didn’t consider the application finished.

Residents against the development argue that the entire conversation should not have been allowed. Nothing in the town’s rezoning ordinance details such a presentation by the developer between the planning commission vote and public hearing. At the very least, Venable should have had a limited time to speak as residents are allotted a set time at the town’s council and planning commission meetings.

But Cook, chairman of the committee, said he didn’t consider it a presentation. He considers public comments at the committee level conversations — no matter who makes them. The public also does not have a time limit when speaking at the committee level, he added.

October’s council meeting was the first since Pierceville opponents submitted a Freedom of Information Act request for the town’s public records about the development and its approval process.

The FOIA requested documents such as plat checklists, telephone records between town administrators and the developers, Hearndon MC Builders, LLC, and the town’s ordinances. Dennis Arinello submitted the document on behalf of the 300 petition signatories against the development. They intended to use this as ammunition for their claims, and possibly prove the town’s partial treatment of Hearndon.

The proposed housing development would create 151 single-family homes ranging from $240,000 to $320,000 on the Pierceville property behind Grace Street and along Cary Street. Dispute over the property began when its owner, Mary Crocker, failed to maintain the property or its historic 18th century plantation house, prompting county and town intervention.

Instead of making the repairs, Crocker elected to put the property up for sale in 2014. A provision of Hearndon’s bid requires finding a developer to renovate the property.

Several residents against the development fear it will cause school overpopulation, and increased traffic and crime. The style of homes, though required to abide by Smithfield’s historic district guidelines, do not fit with the town’s aesthetic, some argue.

 “They [Hearndon] have a right to sell, but the developer does not have the right to detract from the community,” said Gay.


The Rezoning & Subdivision Approval Process


Source: William Saunders, planning and zoning administrator

1. First step: pre-application meeting between developer and pertinent officials/organizations

2. Developer applies for rezoning (if necessary)

3. Administrative response to proffers and application

4. After a public hearing, the planning commission makes a recommendation to town council

5. Board of Historical and Architectural Review reviews application and makes a recommendation to the town council

6. Town council holds a public hearing public hearing and the application receives a final approval or denial

7. Developer draws up formal subdivision plan (if approved)

8. Plan reviewed by town staff

9. Succession of resubmittals as plan is revised and reviewed

10. Planning commission – preliminary and final plan approval

11. Repeat steps seven through ten for formal subdivision plat

12. Final step: Record the finalized plan and plat