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|
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.