Town Council sends public hearing proposal back to Smithfield planners

Published 11:12 am Wednesday, March 8, 2023

A proposed zoning ordinance amendment that would allow Smithfield’s Town Council to forego holding a public hearing on proffer changes is on hold.

The council, which lacked three of its seven members at its March 7 meeting, voted 4-0 to table the proposal and send it back to the town’s Planning Commission for reconsideration.

Proffers are commitments made by developers during the rezoning process intended to mitigate the impact of a proposed housing development, such as cash payments or land for infrastructure that would serve.

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Currently, if developers of an approved project want a post-approval change to their proffer agreements with the town, they have to go through the rezoning process again, which entails a mandatory public hearing. The proposed amendment would allow the council to waive the hearing and rezoning application requirements at the developer’s request if the change does not affect the development’s “use or density.”

The Planning Commission had given the proposal a favorable recommendation at its Feb. 14 meeting after adding language mandating that any decision to waive a hearing must be done “by a majority vote at the next regularly scheduled Town Council meeting.”

Councilman Randy Pack, who was among the three absent, also serves on the Planning Commission as its Town Council liaison and had been the one to insist that any waiving be done by formal vote at a public meeting. Also absent from the March Town Council meeting were Councilman Wayne Hall and Councilwoman Renee Rountree.

According to Town Attorney Bill Riddick, the existing requirement that developers go through a new rezoning application to change their proffer agreements conflicts with state law. In February, Riddick said town staff discovered the conflict upon learning the written proffers Virginia Beach-based developer Napolitano Homes had filed at the Isle of Wight County courthouse for the 812-home Mallory Pointe development to break ground this year still included a community pier that had been cut from the plans when the project was approved in 2021.

The pier and an associated kayak and canoe storage facility had been part of the original development plans for the former Mallory Scott Farms. Napolitano and the Town Council had mutually agreed in 2021 to forego building the pier amid staunch opposition to the development from residents.

The March 7 meeting included a public hearing on the proposed ordinance amendment, which drew two speakers in opposition.

“This is tax money when you’re talking proffers, and we have the right to hear anything and everything that’s changing,” said Theresa Mulherrin of Washington Street. “You can’t keep rubber-stamping the Planning Commission.”

Mulherrin then questioned whether the amendment was being brought forward for the benefit of former Smithfield Foods Chairman Joseph Luter III’s proposed “Grange at 10Main” development.

Luter’s son, Joseph Luter IV, submitted a formal rezoning application for the Grange in December after a year of preliminary plans and discussions with town and Isle of Wight County officials that culminated in controversial decisions by the Town Council and county Board of Supervisors to each contribute $1.4 million in taxpayer dollars toward the development in exchange for its including a permanent home for the Smithfield Farmers Market. According to a submitted fiscal impact analysis, the Luters are also requesting that Smithfield and Isle of Wight “provide an economic development incentive” for the Grange’s proposed three-story hotel and “purchase the development’s infrastructure and utilities through a participation agreement.”

“There’s a piece of me that accepts at face value what we’ve been told,” Goose Hill Way resident Mark Gay told the council, referring to Riddick’s linking the ordinance amendment to Mallory Pointe, but contended the town had plenty of time between 2021 and now to spot and fix the error regarding the pier.

“The old colonel in me just smells an ambush,” said Gay, an Army veteran. “Something’s not quite right here.”

Mayor Steve Bowman and Vice Mayor Valerie Butler each denied Mulherrin’s “rubber-stamping” allegation. The issue, Butler said, is fixing the Mallory Pointe error.

“Under no circumstances are we changing the procedure … where proffers are concerned,” Butler said.

“There’s no conspiracy here,” Riddick said.

Assuming the Planning Commission votes at its March 14 meeting to again send the ordinance amendment to the Town Council with a recommendation for approval, the earliest the council would again vote on the matter would be in April.