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Jim Flynt
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Posted: Feb 2nd, 2007 10:33 pm |
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rasin wrote: Some recent changes in the law have made it easier to "suggest" things that would make the rezoning more palatable without coming flat out and saying “if you do this I will vote for the rezoning”. The developer has to voluntarily offer them so that technically it isn't Contract Zoning. It is a game of semantics.
I would ask that you point out references to the specific changes which you mention. Which laws or court cases are you referring to? I have a fairly comprehensive zoning law library here at home as well as access to Westlaw so any legal cites you can provide would be helpful in discovering any new North Carolina law or cases. I am not aware of the changes which you suggest but welcome reviewing such.
I do agree with you that the whole matter is using great care with semantics, but as you point out above (which I have highlighted), the developer has to VOLUNTARILY OFFER them, and acting on or reacting to SUGGESTIONS from agents or representatives of a municipality is not seen by the courts as voluntary. Courts would see through that veil without much diligence or effort in discovery.
Your concept or understanding of "suggestions" by a municipality in quid pro quo rezoning is what gets these rezonings overturned by the courts. Mere 'suggestion' of quid pro quo is what makes it illegal. A violation of law in spirit is a violation of law in principle.
I dare say, that IF the Town of Summerfield now rezones Armfield with ANY discussion of or negotiation for the developer deeding over a park to the Town, that the rezoning would be overturned by the courts as contract zoning. The distinction is that in the initial rezoning hearing back in 2003, the developer truly volunteered without suggestion to offer the parkland (what would be a unilateral agreement) whereas now, any discussion of deeding a park and/or contributing funds to a park would be seen (by the courts at least) as being a bilateral agreement (and quid pro quo 'trade').
Perhaps what folks in Summerfield opposed to this rezoning should do, is to bring a legal action against the Town of Summerfield to overturn any new rezoning should the town council increase the density or seek to change any of the original conditions imposed by the 2003 rezoning approval. Such revision now would likely constitute contract zoning as defined by the law and courts.
Last edited on Feb 2nd, 2007 11:15 pm by Jim Flynt
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Cracker Jax
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Posted: Feb 3rd, 2007 04:14 am |
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Jim Flynt wrote: I dare say, that IF the Town of Summerfield now rezones Armfield with ANY discussion of or negotiation for the developer deeding over a park to the Town, that the rezoning would be overturned by the courts as contract zoning.
Isn't this one of the reasons the town is paying a licensed attorney (Bill Hill) the big bucks.....To keep them from doing something illegal?
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Jim Flynt
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Posted: Feb 3rd, 2007 08:07 am |
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Cracker Jax wrote: Jim Flynt wrote: I dare say, that IF the Town of Summerfield now rezones Armfield with ANY discussion of or negotiation for the developer deeding over a park to the Town, that the rezoning would be overturned by the courts as contract zoning.
Isn't this one of the reasons the town is paying a licensed attorney (Bill Hill) the big bucks.....To keep them from doing something illegal?
That's a really good question.
The answer will come after we see what they do.
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rasin
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Posted: Feb 3rd, 2007 02:02 pm |
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I believe NC 814 is the basis for the increased/implied flexibility.
I am not a lawyer (nor do I play one on TV) and may have interpreted/heard it incorrectly but the explanation came from the discussion of it at the Oak Ridge Town Meeting. They had to change some of their ordinance to be in line with the changes.
Last edited on Feb 3rd, 2007 02:15 pm by
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Jim Flynt
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Posted: Feb 3rd, 2007 02:37 pm |
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rasin wrote: I believe NC 814 is the basis for the increased/implied flexibility.
Thank-you for your response.
The North Carolina General Statutes run from Chapter 1 through Chapter 168-A.
Chapter 81 concerns nothing but 'weights and measures" so that could not be it.
I can find no (new) reference within the General Statutes to any definition or heading for "contract zoning."
I'll check with one of the zoning lawyers on Monday morning to see if he knows of any changes to NC law regarding contract zoning.
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Isabella
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Posted: Feb 3rd, 2007 07:44 pm |
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http://www.nc-apa.org/index.php?option=com_content&task=view&id=35&Itemid=29
this may help answer some questions regarding the recent legislative changes
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S. Smith
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Posted: Feb 3rd, 2007 08:56 pm |
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Jim Flynt wrote:
Jane, if the houses were clustered without an increase in total overall density, then I would agree with you that open space would increase.
Despite clustering, one cannot INCREASE density without DECREASING open space, save and except by high rise multi-story construction.
Jim, I gotta disagree on this one.
Say (just for simplicity's sake) there is a development of 20 acres. The developer agrees to put 8 houses on 1.5-acre lots and leave the other 8 acres as open space.
Later on, the developer comes back and wants to make development more dense because they've only sold 1 lot. Now they want to put in 10 more houses on 1-acre lots. If this is allowed, they now have a total of 11 houses on 11.5 acres and they have 8.5 acres of open space. They've increased density AND open space without any multi-story or multi-family construction.
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Jim Flynt
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Posted: Feb 3rd, 2007 10:12 pm |
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S. Smith wrote: Jim, I gotta disagree on this one.
Say (just for simplicity's sake) there is a development of 20 acres. The developer agrees to put 8 houses on 1.5-acre lots and leave the other 8 acres as open space.
Later on, the developer comes back and wants to make development more dense because they've only sold 1 lot. Now they want to put in 10 more houses on 1-acre lots. If this is allowed, they now have a total of 11 houses on 11.5 acres and they have 8.5 acres of open space. They've increased density AND open space without any multi-story or multi-family construction.
Gosh Sandra Houdini, I feel like I just got hit by Weapons of Math Construction.
Now can you do the same math on Armfield and add 50 more houses with the same result?
Last edited on Feb 3rd, 2007 10:39 pm by Jim Flynt
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S. Smith
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Posted: Feb 4th, 2007 02:01 pm |
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Jim Flynt wrote: S. Smith wrote: Jim, I gotta disagree on this one.
Say (just for simplicity's sake) there is a development of 20 acres. The developer agrees to put 8 houses on 1.5-acre lots and leave the other 8 acres as open space.
Later on, the developer comes back and wants to make development more dense because they've only sold 1 lot. Now they want to put in 10 more houses on 1-acre lots. If this is allowed, they now have a total of 11 houses on 11.5 acres and they have 8.5 acres of open space. They've increased density AND open space without any multi-story or multi-family construction.
Gosh Sandra Houdini, I feel like I just got hit by Weapons of Math Construction.
Now can you do the same math on Armfield and add 50 more houses with the same result?
Thanks, Jim. From you I'll consider that a compliment.
I don't have the paperwork from the Armfield proposal at home with me, but I can. I'll admit that I also found it hard to believe, but they showed that it can be done. That's primarily because their density was so low anyway -- as I recall, an average of .5 units per acre, which is only one house for every two acres. Their proposal would only increase the density to .59 units per acre, and I think the ordinance allows for up to .73 units per acre (which is about one house for every 1 1/2 acres). Technically, they could be asking for a lot more and still meet the ordinance requirements.
The original condition that they only have 290 houses was self-imposed, but primarily because it is such a huge development. I think they knew that would make it more palatable to the council in the first place.
I'm not taking sides here either way. If I were on the council, I believe this would be a hard decision to make.
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Jim Flynt
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Posted: Feb 4th, 2007 02:25 pm |
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S. Smith wrote:
Thanks, Jim. From you I'll consider that a compliment.
Sandra, I MEANT it as a compliment!
Being challenged by differing viewpoints and perspectives helps us stay on our toes intellectually. Thanks again for showing me the other way!
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Gonefornow
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Posted: Feb 11th, 2007 11:43 pm |
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| I recently read the conditions of first zoning and they seem important to the town and certainly persuaded Council to approve this project. Are they binding? If not, why were they allowed to be a part of the presentation and apparently, part of the plats? If so, why are they not being enforced?
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Jim Flynt
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Posted: Feb 12th, 2007 11:08 pm |
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Here are some questions which I think Summerfield Town Council should ask and which the Summerfield Town Council and Summerfield citizens are entitled to have answered before a decision is made on the Armfield rezoning:
Questions which deserve an answer prior to any Armfield changes:
1. Are the nine current conditions binding and enforceable?
2. Exactly where is the ninety acres proposed for the Park?
3. How and when was it offered to the Town?
4. Is it still an option?
5. At the November 2006 Council meeting, the Armfield developers presented
an alternative to the 90 acres of promised park land. They described this land as
6 acres of floodplain on the north side of Brookbank and 24 acres on the south
side adjacent to City of Greensboro watershed. They were told that this would
have to go through a public hearing. In the last hour of the last filing day of
2006 they secretly deeded a vastly inferior 16.36 acres of floodplain on the
north side of Brookbank and 13.61 acres on the south side adjacent to City of
Greensboro watershed. Why the difference and why was this done when they
were told it had to go through a public hearing?
6. The current builders and residents were promised that the extra density
(72 units on 52 lots) would insure the continuation of the current custom builder
program. This was also mentioned at the January council meeting. Given this,
why are they demanding removal of the critically important condition limiting
the number of annual platted lots to 75?
7. One of the original conditions limited the number of lots on the west side of the
220/68 Connector to 60 until if and when the developer obtained an additional
access point. This was not accomplished. These 60 lots along with all of the land
on the west side of the Connector have been platted. Over 60 acres of platted
unattached open space west of the Connector is included in this rezoning. Why?
8. Is the town prepared to address the many developments which will surely follow
demanding at least equal treatment? What about re-submittals of prior
developments which under the ordinance are not at the maximum possible
number of lots?
Last edited on Feb 12th, 2007 11:10 pm by Jim Flynt
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Gonefornow
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Posted: Feb 13th, 2007 12:20 am |
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| Hope someone will come by and say what condition the conditions are in. GREAT QUESTIONS that deserve an answer. My question....who will ask them?
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Jim Flynt
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Posted: Feb 13th, 2007 12:38 am |
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Gonefornow wrote: Hope someone will come by and say what condition the conditions are in. GREAT QUESTIONS that deserve an answer. My question....who will ask them?
One of the interesting questions to me, is the one you allude to and alluded to in your earlier post Gonefornow: that is, are the current conditions binding? (Current conditions being defined as those imposed by the 2003 rezoning).
Obviously, if they are binding then the conditions being proposed would be at odds with the prior ones.
If the current conditions are not binding, then why would there be any expectation that any new conditions would be binding? And given the fluidity and instability of unenforceable conditions, doesn't this simply beg the question of why Summerfield would ever even allow or require any conditions from any developer. (That is why I suggested in a much earlier post, that the outcome of this new Armfield rezoning hearing may likely leave other real estate developers thinking of Summerfield as the laughing stock of zoning authorities. (Simply go in and promise the Town of Summerfield anything to get your foot in the door, and then once rezoned, then go back for another rezoning to get what you really wanted to start with. After all, the precedent would be there after a new Armfield rezoning with new conditions replacing the older more restricted ones).
Last edited on Feb 13th, 2007 12:46 am by Jim Flynt
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Jim Flynt
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Posted: Feb 13th, 2007 12:53 am |
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Just to refresh everyone's memory, here are the 9 original conditions imposed on the 2003 Armfield rezoning as reflected in the February 4, 2003 Summerfield Town Council meeting minutes:
REZONING CASE #2-03: AG and RS-40 to CU-OSRD. Located on the north an south sides of Brookbank Road at Banning Road. Consisting of approximately 556.11 owned by Edward M. Armfield, Sr. Trust. Greensboro Watershed.
Michael Brandt presented the case. He stated that there were nine conditions proposed and they are as follows:
1. A 25-foot wide Type “B” landscape yard shall be planted along the right-of-way of Brookbank Road and its re-alignment. No plantings shall be required where open space is located along Brookbank Road.
2. No building lots shall have access to Brookbank Road.
3. Lots adjacent to Henson Farms and Chrisman Extension shall be 40,000 square feet or larger.
4. The developer will design emergency services access to the lake on the southeast portion of the property. The Homeowner’s Association will maintain this access and the design shall be completed prior to final approvals.
5. The lake on the southeast portion of the property shall be surrounded with common area owned and maintained by the HOA such that no building lot directly adjoins the water’s edge.
6. The maximum number of residential lots shall be limited to 290.
7. Development of the property located westerly of the proposed Highway 220/68 connector shall be limited to a maximum of 60 residential lots until a second point of access is available.
8. No more than 75 lots shall be platted within any twelve-month period.
9. A public park of at least 90 acres will be dedicated to the Town of Summerfield.
He reported that there was historic property on site. Staff recommends approval. He reported that the Zoning Board voted unanimously to deny.
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