Major construction underway for the past several weeks has the new Plum Creek Greenway coming into shape. This will connect the West Branch greenway in Davidson up to Bailey Road across from Hough High School in Cornelius.
Davidson's Board met on Tuesday for a marathon meeting to discuss options on how to make local coronavirus controls more restrictive as the State moves towards Phase 2 reopening as soon as this Friday.
The most contentious item up for discussion was whether or not to impose a mask wearing requirement in public spaces, specifically inside businesses, set to reopen with Phase 2.
After lengthy discussion the Board initially voted 4-1 to "require" businesses to post a sign stating the mask wearing policy of the business with Commissioner Autumn Michael being the sole dissenting vote. Commissioner Michael preferred waiting a couple of weeks to see how things went with reopening before making any mandatory requirements. The Board then voted 2-3 against a motion to make mask wearing mandatory by employees with Commissioners Matthew Fort and Jane Campbell voting for the requirement and Commissioners Jim Fuller, David Sitton and Autumn Michael against. If there was any surprise in this second vote it was with Commissioner Sitton voting against it. After being the most outspoken along with Commissioner Fort in support of mandatory mask requirements, it was surprising to see him vote against it.
However, things quickly unraveled on the passed signage requirement when Police Chief Penny Dunn and Economic Development Director Kim Flemming began asking questions about enforcing it. It soon became clear that making the signage required had unintended consequences. Because it was being required it would need to be an amendment to the State of Emergency Proclamation signed by Mayor Knox on March 23rd, violations of which could be a Class 2 criminal misdemeanor.
After much more discussion and hypothetical scenario pondering, the Board then undid the 4-1 vote making signage required to making the signage just recommended. That motion passed unanimously. Disaster averted!
The Town was no longer at risk of making the nightly news for inadvertently making some of its business owners misdemeanor criminals for not having a sign or for not enforcing a sign they did have.
The good news is that encouraging (not requiring) mask wearing is hardly a bad idea, and that's where the Town ultimately ended up. The saying "sometimes it's better to be lucky than good" comes to mind.
So, what set the stage for the messy decision making process by the Board?
That part is pretty simple - poor preparation and advice on the part of Town Attorney, Cindy Reid. The Board and the Mayor never would have been put in the position they were and hours of stressful discussion could have been avoided, if their attorney had given them good and complete advice going into it.
Any requirement, any mandatory restriction put in place under emergency powers would have required updating the Emergency Proclamation and imposed penalties for violating it. That complete advice should have been given to the Board before the discussion. Instead, the Board was just told they had the authority to make more restrictions, but not the real implications of doing so - charging violators with a misdemeanor. When it did come up it should have been the Town Attorney doing so, not the Police Chief. Instead, throughout the discussion, whether it was on points of order with motions, or with this more critical legal advice, the Town was lucky to have others such as the Chief and Commissioners Michael and Fuller, both attorneys, to point out the issues. The Board really deserved better from the Town Attorney on what was potentially the stickiest legal situation the Board has dealt with in many years.
Again, sometimes it's better to be lucky than good, but when it comes to things this important, it's important to be good.
To end on a more positive note, the Town also agreed Tuesday to move to Phase 2 along with the County and State when that occurs. They also will be looking at helping local restaurants by figuring out ways to have more outside seating which should definitely help restaurants along Main Street serve more people under Phase 2 capacity restrictions. That's something which will be a big help as those critical businesses to the community try to get back on their feet. There will also be mask wearing signage printed up which will encourage, not require, use.
At the May 12th regular board meeting, Davidson electeds spent 2 hours discussing the coronavirus pandemic. The beginning of the first hour was spent hearing updates from NC Senator Natasha Marcus and NC Representative Christy Clark on the happenings in Raleigh.
About 15 minutes in, the Board members went around the virtual zoom table with each asking questions. This was kicked off with Commissioner Fort asking right off the bat if Marcus and Clark agreed with the move to Phase 1 of reopening. Without answering directly if their personal opinions differed from that of Governor Cooper's on the decision to move to Phase 1, Marcus and Clark both indicated that they received updates from NCDHHS and that they trusted the experts there.
After the Senator and Representative left the conference, Davidson's Board spent the next hour discussing the Town's response, and specifically, whether or not the Town of Davidson could/should be more stingy with its own reopening plan - something both senior management and the Town Attorney assured them they could do under its own emergency authority. Again, this part was opened with Commissioner Fort asking that the Board vote on whether or not it agreed with Cooper's decision to move to Phase 1 of opening. The Board never voted on this last week, but Fort did say that if the Board was to vote to just accept what the County and State decided it would likely not be unanimous with him voting against such a hypothetical.
During the solid hour of discussion, much attention with no real detail was had around the subject of masks. Should the Town require them inside businesses? Could the Town require them in parks? What and how did Durham implement more restrictive changes? How would any such requirements be enforced?
The answer to the parks mask wearing requirement idea was that for Fisher Farm and Abersham the Town has no authority since they are owned by the County. This of course implies it's possible for the Town to require them at Town-owned parks and greenways. However, making masks required in Town Parks wasn't specifically discussed during the meeting other than in reference to having the possible authority to do so.
In fact most of the conversation on masks centered around possibly requiring them inside businesses and presumably any lines outside them. This rightfully led to consideration of enforcement and asking the question "what happens if someone does not comply?" Police Chief Penny Dunn was not on the call to provide her insights. Mayor Knox glossed over the question saying compliance shouldn't be a problem in Davidson. Commissioner Fuller did however acknowledge the possibility of having to deal with situations like the one in Raleigh recently where 2nd Amendment advocates protested such public orders. That protest was around stay at home orders and did not involve protesting a mask requirement, but the idea is worth considering. What might be the unintended consequences from an enforcement perspective of Davidson going out on its own with added restrictions?
This portion of the meeting ended with staff being directed to come up with some options. Those can be found here on the agenda for Tuesday's Special Meeting. A special webinar registration link is also included for those citizens who would like to participate in the discussion.
The options range from the most extreme restriction of staying in Phase 1 when the State and County move to Phase 2 (possibly as soon as the end of this week), to modifying certain aspects of moving to Phase 2 such as opening restaurants but with only outdoor seating, to requiring masks in public places, to moving to Phase 2 when everyone else does. Much of the attached deck of slides focuses on a possible Town information campaign encouraging mask wearing.
Interestingly, there is no attached resolution or ordinance that might be voted on at the meeting. Typically, such documents are included in the agenda. That could be a sign of the fluidity of the situation with no specifics readily available to even draft one, or it could mean no such documents are needed if the actions just include directing staff to conduct a public information campaign. Per comments at the meeting last week this could also mean a document to vote on isn't really needed because the power to do these things is really vested solely with the Mayor under emergency powers. This last possibility could mean some document will be pulled together after the meeting for the Mayor to sign. However, Mayor Rusty Knox did indicate last week that he intended to follow the Board majority and not make any of these decisions alone.
Tune in this evening at 6pm. It is sure to be an interesting one.
Note to Readers: This is the first real post in quite a while here at aShortChronicle, and several readers have reached out to ask "where have you been?" The absence hasn't been because of any health issue, overwork elsewhere, or because of a lack of possible Town Hall topics to discuss. Rest assured, or maybe not, the number of questions, comments, and information received here at aShortChronicle on Town shenanigans and tomfoolery has not slowed down. However, for the time being judiciousness in choosing what to cover will be the norm.
UPDATE: The Davidson Police Department is happy to announce that Ket Barrington was located on March 11, 2020 and is safe. Thank you to everyone who called, inquired and assisted during the search.
The Davidson Police need assistance in locating a missing 16 year-old. Bereket “Ket” Barrington left his home on Grey Road in Davidson during the early morning hours of Monday, March 9, 2020. Ket did not take his phone, computer and wallet or have any means of transportation. Ket is known to frequently walk in Abersham Park and attends William A. Hough High School in Cornelius. A distinctive feature is his deep voice and slight Ethiopian accent. If anyone has seen or spoken to Ket since Sunday night, please let us know he’s safe. Any information that you can provide would be much appreciated.
At the February 11th Davidson Town Board meeting there was a lengthy discussion on the proposed widening of NC73.
Town officials discussed a draft resolution covering 7 items of concern - a list that was eventually expanded to 8. The list spanned everything from landscaping to affordable housing to historic preservation to mobility to development and yes, most importantly, public safety. This list and draft resolution was the result of several officials attending an NCDOT meeting for public officials back on January 27th. An open house for the general public was held on the 28th.
For Davidson residents who travel through the NC73/Davidson‐Concord Rd intersection and for those who live on the east side of Davidson along NC73 the safety and mobility issues will likely bubble to the top of this lengthy list of concerns.
aShortChronicle reported on the proposed lack of left turns at the NC73/Davidson-Concord Rd intersection a year ago in February of 2019. See here for that story. The update to that story indicated the issue had been resolved with a signal at this intersection and that the lack of left turns was an "error" on the map. However, based on the discussion at Davidson Town Hall last week that error now seems to be the actual plan with the NC 73 widening project - no left turns a NC73/Davidson-Concord Rd.
It was mentioned that this no left turns plan could possibly change if there is development on the Huntersville side of this intersection on the south side of NC73. There is apparently an unnamed developer for an unnamed project looking at that location who would be on the hook to do a traffic study showing that a left turns across NC73 is warranted. However, Town Manager Jamie Justice stated that may just be for left turns on the road crossing NC73, and not for left turns from NC73 onto Davidson-Concord Rd or into this new development. Those lefts would still need to use the u-turn format of passing the intersection then doing a u-turn and coming back to it to make a right. See below for the pictures of how this will work.
The primary safety concern with this intersection stated at last weeks meeting has to do with public safety response, particularly for swift access to the Davidson East and Summers Walk neighborhoods on NC73. Davidson Fire and Police service will have to navigate these unwieldy intersections that needlessly add distance and increase response times.
Unfortunately, this plan by NCDOT should surprise nobody.
This is not the first time NCDOT plans have sacrificed safety for Davidson residents for the benefit of pushing a little more traffic a little faster on area roads. Long-time readers of aShortChronicle may remember the fight to reduce speeds on Davidson-Concord Rd as another recent example.
NCDOT initially did not want to reduce speeds from 55mph on sections of this road down to 45mph south of Beaver Dam. They also didn't want to reduce the speed to 35mph from there into downtown. It took a concerted effort by citizens to make the case and stand up to NCDOT staff to get this done. Ultimately, it took bringing NCDOT staff to Davidson Town Hall to hear directly from the people to get the job done.
In addition to passing a strongly worded resolution, Davidson Town Hall should consider doing the same thing now and request NCDOT come to speak to residents. Resolutions are nice. They may even be necessary, but Davidson passed plenty of resolutions on the speed limit reduction before it got done. Ut took citizen involvement to make that actually happen.
Last Thursday, Davidson Town Hall put out the below notice for a public input session for the new Davidson Cottages project as part of the Davidson Commons East development that includes Woodies..
aShortChronicle previously reported on this project here and last week asked some questions about the overall Davidson Commons East development last week. See here for that story.
As stated before, the Davidson Cottages project seems like one that meshes well with the surroundings. It's close to the commercial and transit services at Exit 30. It will include built affordable housing and market price housing at the more affordable end of the spectrum for Davidson. It also has a quality builder/developer in Saussey Burbank.
The only obvious drawback from the perspective of aShortChronicle is the possible/expected use of "density averaging" to achieve the planned footprint. From the Town website on the Board of Adjustment page density averaging (also known as built upon area (BUA) averaging) is described as
Built-Upon Area Averaging is a program whereby parcels located within a protected watershed may obtain additional impervious coverage rights by averaging the total impervious area of the developing lot with the total impervious area of an undeveloped/less developed lot within the same watershed. Essentially, the "receiving lot" obtains additional impervious square footage allowance when the "giving lot" establishes a non-revocable easement containing undeveloped, vegetated area. The amount of this easement area may be transferred from the giving lot to the receiving lot by Final Plat recordation, subject to applicable criteria and processes. Davidson Planning Ordinance Section 17.8 outlines the process and requirements for obtaining a Density Averaging Certificate, which must be approved by the Board of Adjustment.
Another way to look at this is it is a gimmick to benefit developers that has little to nothing to do with water quality. Less expensive land, possibly unbuildable land, can be bought for relatively cheap then "set aside" to allow more density on high dollar land.
Any developer desiring to use density averaging should present the exact potential donor lot or lots that might be a part of any such equation in its public information session. Would these donor lots be buildable at the same scale? If not then density averaging doesn't really add value from an overall water quality perspective. In fact it could take away value if the donor lot is unbuildable anyway and would never have impervious development but "saving" it allows more density elsewhere.
Importantly, under the current Davidson ordinance the final density averaging decision does not occur until a Board of Adjustment hearing after the rest of the plan is approved. This sets up the situation where a lot of time and effort has been expended before the BOA hearing. What are the chances the BOA turns down the request for density averaging at that point? There will obviously be a lot of pressure on them to approve. It would be much better if this was done earlier, but it is not.
With this particular development there is also a lot of history on the subject already. aShortChronicle would like to see a full explanation of the history of this project and the possibility of using density averaging at the public information session. It is very unlikely that will happen however.
Public records requests completed over the past few years show that the possible use of density averaging on this parcel has been under discussion as early as late 2016 during the swirl around the neighboring Griffith Street Hotel project. Records show there have been multiple times the density averaging subject on this particular parcel was planned to go before the BOA - as early 2017 - in both July and October of that year. Former Town Attorney Rick Kline was engaged by the developer for this 2017 work. The October 2017 hearing was suddenly pulled at the last minute in what appears to be a Town decision, but the record contains no explanation of why. However, the latest records request received earlier this month also appears to be incomplete. If this idea was pulled by the Town in 2017, why would the Town even be considering it now? Was there a process mistake in 2017 that required it to be pulled or some other reason? These concerns were all presented to elected officials last week for comment, but none has been received as of this posting.
Again, the Davidson Cottages project seems like a very good one. This isn't really about that. However, in the interest of transparency for this project and future ones, all of these concerns about how the Town and Town Staff handle these things need addressing.
Last week, aShortChronicle encouraged Davidson Commissioners to go slow in approving new developments on the remaining Davidson Commons East development sites. These are the vacant parcels on either side of Woodies including the two closest to Griffith Street that had been designated for the now defunct hotel project and the one furthest from Griffith Street now designated for the Davidson Cottages project.
During Tuesday's Board meeting there were multiple interesting and some concerning discussions that could impact this land.
During the agenda item discussion on possibly allowing CFA Church to take over the former Healthy Home Market space at Sadler Square, something the Board declined to support, Mayor Knox asked the CFA representative if they had checked the possibility of building on the former hotel sites. That discussion ended with this seeming to be a possibility. Something like a church on that site certainly wouldn't generate the type of response as the old hotel project, so that was an interesting suggestion.
Next in the meeting agenda relating to Davidson Commons East was discussion on extending water and sewer to the new Davidson Cottages development proposed by Saussey Burbank on parcel 4D of Davidson Commons East. That's the parcel furthest from Griffith Street highlighted in green. Parcels 4A and 4B are the parcels formerly designated for the failed hotel project. Parcel 4C is Woodies Auto.
Davidson Commons East
After much discussion on the possibility of having to use a gimmick called "density averaging" to allow the Davidson Cottages project to be built, the Board did eventually approve the water and sewer extension but only for this specific project, meaning if this project doesn't happen, another project doesn't automatically get the water sewer extension. A public input session for the Davidson Cottages project is scheduled for January 29 at Town Hall. More details on that to come.
aShortChronicle has no issue with approving the water/sewer extension, the Saussey Burbank project seems like a good one. However, there were multiple points made in the discussion around density averaging as well as vested rights that raise some serious concerns. aShortChronicle has asked Davidson electeds for comment on these concerns for a follow up story, so stay tuned.
The crux of the problem is this. Density averaging is a gimmick that allows a developer to use impervious built upon area (BUA) from another non-contiguous parcel to allow for more density in a target parcel. In the case of DCE the total BUA applies to all 4 parcels including Woodies which is already built and needs to be divided among all four parcels. The only reason for the Saussey Burbank project to need to employ density averaging is if there is not enough unallocated BUA remaining because of what is supposedly allocated for parcels 4A and 4B, the old hotel parcels. To their credit, multiple Commissioners, particularly Commissioners Matthew Fort and David Sitton, asked a number of questions probing why this is the case and what they can possibly do to prevent density averaging from being used. The answer was briefly mentioned, but it boils down to something called "vested rights".
Vested rights is a legal determination that allows a developer to build a plan based on various approvals. This is also where we get to the possibility of a new project for DCE parcels 4A and 4B.
After some delay, this past Friday, aShortChronicle finally received the results of a records request on DCE. This request was for anything to do with DCE since January 1, 2017 through December 20, 2019. aShortChronicle has been asking questions since August regarding the former hotel parcels, this records request would hopefully fill in the blanks.
In this request, there are numerous emails with Town staff making it clear the land owner/developer for DCE has been planning to implement a new project on the former hotel parcels, and things have been in motion for quite some time. This in spite of Town staff repeatedly telling aShortChronicle over many months that they hadn't heard anything from the "hotel developer".
The earliest mention in the records request is an email from Planning staff member David Cole to the land owner/developer on July 12, 2019 - less than one month after the State Appeals Court decision invalidating the hotel zoning. This email was in reference to obtaining building permits for 127 and 151 Gateway Drive. Those are the two former hotel parcels. There is a later email in November indicating the land owner/developer is eager to get started on this new project. aShortChronicle did receive a message from Town Staff on December 5th saying the land owner would be refilling plats to specifically allocate BUA to the 4 parcels making up DCE. While it did not specifically mention a new project, it did mention "vested rights" for the zoning prior to the entire hotel debacle.
So, what is the project?
For those who followed the hotel debacle from the beginning you may remember (or not) that the developer/landowner had a previously approved plan that was never built. It was a plan for 2, 3-story mixed use buildings on parcels 4A and 4B. This plan was used to attempt to cudgel the public into supporting the hotel. In fact Commissioner Jim Fuller who was the only current Commissioner on the Board back then made a vague reference to this at last Tuesday's Board meeting during the DCE related conversation. Here is a link to a 2016 story on this.
However, the key to this new/old/new again plan is this concept called "vested rights". If there are no vested rights the plan would have to start over from the beginning. The requirements for vested rights are very complex and this DCE development is particularly complex with multiple plans and amendments since 2007 and now a court case to be factored into the equation. This also now impacts the BUA calculation for lot 4D and the Davidson Cottages because if 4A and 4B do not have vested rights then some of the BUA needed for lot 4D could be moved to that project negating the need for density averaging there.
On December 4th, December 6th, December 20th, and January 9th, aShortChronicle followed up with the Town for an explanation on how these supposed vested rights were determined and how long they would be valid. To date, there has been no response from the Town or the Town Attorney other than acknowledgement of receiving the requests. This is very similar to the non-response received when aShortChronicle was asking these same questions back in 2017. See this post for more on that.
Frankly, Davidson's Town Attorney, Cindy Reid, is not a career real-estate attorney and the Town Planning Director, Jason Burdette, isn't either. Without an unbiased and unencumbered third party opinion on this complex issue of vested rights the Town runs the risk of putting the citizens through another Griffith Street Hotel situation, and that's something to be avoided at all costs.
Check back for more. This story is just beginning.