After Rezoning Fails, Property Owner Must Wait 12 Months – Brevard NC
January 12, 2017
John Johnson will have to wait roughly 12 months to try and seek rezoning of property behind Egolf Motors in Brevard between the dealership he once ran and the Straus Park subdivision.
In a special called meeting, Jan. 3, Brevard City Council denied Johnson’s request to rezone property at 1259 Asheville Highway from General Residential 6 (GR-6), a zoning classification that allows for six noncommercial living units per acre, to Neighborhood Mixed Use (NMX), a classification that allows for the mixing of residential dwellings and commercial establishments within a specified area.
The meeting attracted a number of Straus Park residents, who appeared to oppose the rezoning.
After a presentation and discussion, Councilman Mac Morrow made a motion to approve Johnson’s request, but the motion died for lack of a second.
Councilwoman Ann Hollingsworth then made a motion to table the request until the council’s February meeting.
Mike Pratt, the city’s attorney, advised the council that, procedurally, when a motion is made and there is no second, the matter is then over.
It takes a super majority vote to revisit a matter, so, to table the matter would require four of the five council members to agree to table it in order to pass the motion.
Hollingsworth restated her motion for council to table the matter until the February meeting.
Councilman Gary Daniel seconded the motion. Hollingsworth and Daniel voted in favor, but the motion failed after Morrow and Councilmen Maurice Jones and Charlie Landreth voted no.
“The rezoning will not occur, so the property will remain as it was and will be that way for another 12 months, which is how long the property owner has to wait to reapply to have the zoning changed,” said City Planning Director Daniel Cobb in a later interview.
Prior to the decision, Planning and Assistant Zoning Administrator Aaron Bland told the council the city’s Planning Board unanimously voted to recommend the rezoning request for the 3.6-acre property.
Bland said it helps further some goals stated in the city’s Comprehensive Plan and serves as a “rational and consistent pattern of zoning” that would make the NMX zoning district a transitional area between the adjacent Corridor Mixed-use properties along Asheville Highway.
However, Bland said the Planning Board’s recommendation required the council to acknowledge an inconsistency in the 2002 City of Brevard Land Use Plan, which classifies the property as “residential – low density,” meaning it can only contain “mostly one-family dwellings at an average density of not more than three dwelling units per acre.”
The plan also states that the land may not be served by public water and sewer and lot sizes should be adequate for an individual water supply. It requires that average lot sizes are 10,000 square feet, agriculture should be allowed and there should be opportunities for “traditional, compact, rural commercial/community centers” that should “serve the daily deeds of the surrounding community.”
Bland said council needed to consider the Land Use Plan’s “residential – low density” as a possible conflict with the proposed rezoning to NMX, the differences in the allowable uses between NMX and GR-6, and the potential impacts on Straus Park residents.
“There are light and noise implications that could travel to Straus Park,” Bland said. “But there are requirements in the ordinance that would apply to the property that would mitigate these potential detriments, such as buffer requirements.”
Bland said a 6-feet high and 20-feet wide vegetative buffer would help mitigate the noise and light from escaping the property.
“We all know that a 6-foot high buffer is not going to block any light,” said Straus Park resident Manuel Reyes-Otalora, who was spokesman at the meeting for Straus Park residents.
Reyes-Otalora also suggested there were improper notifications of Straus Park residents of the Planning Board’s report and recommendation, signage and a possible failure to adhere to proper advertising guidelines.
“We think something fell through the cracks,” Reyes-Otalora said. “And we don’t feel there was proper advertisement as required to put a half page in the paper. Also, the sign for the property to be rezoned is placed in front of Egolf Motors, and unless you had business there you would never see that sign.”
Reyes-Otalora asked for clarification from Cobb on the application deadline that requires the applicant to submit it 60 calendar days prior to the Planning Board’s meeting.
“This was submitted on Oct. 27, and the Planning Board voted on (Nov. 15), so that was only 18 days, and I don’t understand the discrepancy between the requirement and how this was processed,” Reyes-Otalora said.
Cobb said the requirement does not apply and the deadline has no bearing on the board’s decision.
“They’re still given 45 days no matter when the application was received and when it’s first heard by the planning board,” Cobb said. “It would have not changed the notification requirements for this evening. It applies in that if we are not able to complete the work and have a short turn-around time. We are not obligated to do so because the application wasn’t done in 60 days.”
Reyes-Otalora said there would also be environmental impacts if the proposed rezoning was approved.
“A large number of trees would be torn down that help block the noise from the highway and light spilling over from the dealership,” Reyes-Otalora said. “There are other environmental issues, such as topography, utilities, easements, environmental permits and a creek on the property that could have drainage issues.”
Johnson, who was the Egolf Ford dealer from 1991 to 2008, said there is no creek on the property.
“And I’d like to point out that I can virtually cut down every one of those trees right now,” Johnson said. “They’re mine. But I haven’t wanted to have an adverse relationship with the Straus Park Property Owner’s Association.”
Johnson said he approached the president of the Straus Park Property Owner’s Association about getting an egress through the back of the property, but it was turned down.
Johnson said he included an offer to the association that anything built on the property would be a part of the Straus Park covenants.
“But we were turned down abruptly,” Johnson said. “The most important issue to the association was that their impermeable boundary not be broken.”
Johnson said when he bought the property, it was zoned as “highway corridor” for commercial use.
“In 2006, when the city’s new zoning plan came out, they rezoned my property from highway corridor to all the way down to GR-6,” Johnson said. “Now, frankly, I wasn’t aware that any of that had happened at the time or I would have fought it. I don’t feel there was any justification for that, and that’s why I think it should be rezoned to neighborhood mixed use.”
The most important fact, Johnson said, was that all houses built on Meadow View Road in Straus Park were built when the area was zoned as highway corridor.
“I don’t know what the justification was for changing the use of my property in the first place,” Johnson said. “But I certainly see the justification for turning it back at least halfway, so that the property can be used.”
Johnson said the appraisal of the property dropped from $725,000 in 2005 to $425,000 in 2013.
“I know it’s two different time periods and there was a gigantic drop in the market, but the difference in zoning has a significant impact,” Johnson said.
He said the property is currently not for sale and has no contractual agreement with anyone on the property.
Straus Park resident Amy Fisher said the rezoning would directly impact her property and that the possibilities could be detrimental.
“If this neighborhood mixed use passes,” Fisher said, “that would almost triple the impact that would have on our property with what’s next to it. “Currently, we do have noise and lights from the Ford Dealership. We knew that going in. But the impact of something going next door that could be included in those options, such as a night club or a gentlemen’s lounge, would have a very negative impact on the quality of life of the residence at Straus Park.”
Cobb later said the idea that a gentlemen’s club could be placed on the property if it were changed to NMX is inaccurate.
“Those types of establishments are allowed in the city, but that could not happen within that type of rezoning,” Cobb said. “And you’d be hard pressed to find a property suitable for that.”
Fisher said NMX would improve Johnson’s property value, but a far less residential mixed-use zoning would have less of impact on Straus Park properties and allow Johnson a greater profit.
Bland said that, ideally, residential mixed-use zoning would be a “less intense” zoning, but he said they couldn’t do that due to spot zoning constraints.
Straus Park resident Art Cole said the request for rezoning appears to be a “gerrymandering” of property to fill a need yet to be identified.
“In the policy analysis, NMX is coded as a ‘providing pedestrian-scale, higher density residential homes and opportunities for lived-in scale commercial activities along mixed-use corridors in areas of transition,’” Cole said. “We would ask, to what is this transition district transitioning?”
Cole asked council if the planning staff were seeking the request for approval to rezone the property to provide a better quality of life for all residents, or to help someone sell property.
David Calhoun, president of the Straus Park Mountain Park Association, said anyone can understand the desire of a property owner to sell property, but it shouldn’t come at the expense of neighboring properties.
Straus Park resident Nina Shippen said the current house she lives in is zoned GR-6 and she made sure the area was zoned that way before she moved in.
“So, what is to keep someone from asking that the lot be rezoned to mixed commercial?” Shippen asked. “I’m just trying to understand the rational as a property owner.”
Morrow asked Cobb if Johnson was within his right to request a rezoning and if proper notice was given.
Cobb said Johnson is the sole property owner and is entitled to do with it what he pleases, and that all proper steps were taken.
Cobb later said he could see the Straus Park residents’ point of view, but, he said, from a legal perspective, Johnson is entitled to the due process of the law.
“The law states that you notify the neighbors directly abutting the property and you advertise it in the local paper of general circulation twice, on two separate weeks, so that if the general public is concerned, they can come speak their minds during a public hearing,” Cobb said. “Everything was done according to the way it is normally done.”