So, there was a bit of confusion about what all was going to happen regarding the CHS Hospital when the Davidson Town Board got together Tuesday for its January meeting. The previous post from aShortChronicle strongly encouraged the Board to allow Commissioner Jenest to recuse himself from the rezoning vote.
DavidsonNews.net had previously reported that there would be a "public hearing and a vote" at Tuesday's meeting on a rezoning request for the property to allow a sign that does not meet the town's sign ordinance. However, the vote on the rezoning is actually not going to happen until February - making our post here a little early.
There was in fact a vote on Tuesday's agenda for the annexation of the property into the town. The previous post written here was based solely on the rezoning not the annexation. When DNN wrote it's story today on the Tuesday meeting, their story originally included a reference to the post from aShortChronicle as if it pertained to the annexation. It did not. DNN graciously made an update to their story after that was pointed out.
Confused yet? And why does this matter?
North Carolina law on recusals is unnecessarily confusing. Elected Commissioners can not just recuse themselves from voting on items if there is the mere perception of impropriety. There is a concept called the "duty to vote" which pretty much requires them to vote in any situation. The statute says. "No member shall be excused from voting except upon matters involving the consideration of his own financial interest or official conduct."
The question is what is "financial interest"?
In response to the first post on this subject from this site, Commissioner Rodney Graham responded to the piece on Facebook. Here is his comment and our response.
Commissioner Graham - "3 or 4 years ago the Town Board voted to lower the property tax rate. Since all of them were property owners in the Town of Davidson and would be directly and favorably impacted by said reduction, should they all have recused themselves? Obviously, the answer is "no" but it illustrates a challenging question: just what is a direct benefit? Many people understandably believe that if any elected official has an interest, relationship or affiliation in an issue, no matter how direct or significant, they should be excused from voting on it. But, the LAW in North Carolina heavily leans toward the side of voting, so the law prescribes limited exceptions to voting, and as you might imagine those are subject to interpretation. None of this is to suggest how I might vote on any request to be excused from voting, but I wanted to make it clear that there are statutory guidelines as to when being excused from voting is permissible. Thanks for the article; there is some good information in it."
Our Response - "You are correct, there is a "duty to vote" concept involved here. However, the tax rate example is actually a good one. In fact it's just that example sited by the UNC-SOG as a situation at the extreme end of a continuum where commissioners would NOT be recused precisely because they would all receive the same relative benefit from the vote. The decision tomorrow night (regarding the rezoning vote that did not occur) for Davidson's Board is not that type of situation. Any benefit from the decision tomorrow night accrues to only one Board member - putting it much further along the continuum where a commissioner should be recused. Add to that the fact that the Commissioner with the most direct knowledge of any financial benefit is also the one would be offering to recuse himself, and that seems to be a reasonable situation to approve the recusal. It's definitely a judgment call."
So, here's the difference between the pending rezoning vote and this Tuesday's annexation vote.
The annexation of property is a standard action taken by Davidson when property ties into local utilities and receives the benefit of town services. That's mentioned in the DNN story on Tuesday's meeting. Annexation would likely have happened regardless of who was on the Board and whatever firm was doing the work on the CHS property. Plus no Commissioner will receive any benefit from that, or if they do they will all receive the same benefit. The annexation is much more like the tax rate example that Commissioner Graham used. The Board was right to allow Commissioner Jenest to vote on it.
The rezoning of the property is different because it is not a standard action, and it's being sought precisely to seek a variance from a town ordinance.
Commissioner Jenest is a name partner in his firm. His client is seeking an exception of a town ordinance. Any benefit certainly accrues only to one person, not the whole Board. Voting to support an exception that benefits a client who is paying you to do work on a project and that overall project benefits from that exception would certainly appear to be at best a very gray area. There may not be a clause in the contract between ColeJenest & Stone and CHS that says "we will not pay you unless you get our sign variance approved", but as Commissioner Graham said these situations are "subject to interpretation."
When the time comes to actually vote on this rezoning, it will be interesting to see how the Board interprets that situation. Our neighbors in Cornelius recently had a similar situation regarding a rezoning for the new Harris Teeter in Antiquity. Then-Commissioner Chuck Travis, an architect, recused himself for something much less direct, and he did not vote.
Showing posts with label CHS. Show all posts
Showing posts with label CHS. Show all posts
Wednesday, January 15, 2014
Sunday, January 12, 2014
CHS Hospital Rezoning on Davidson Board Agenda - Recuse then Refuse
Tuesday night, Davidson's new Board has its first real monthly meeting. The December meeting saw the new Board sworn into office.
Now it's time to get down to business, and one of the first items Commissioners will tackle involves the new CHS behavioral health hospital on highway 73. Like it or not, this facility is controversial for some of the residents who live out that way, and Davidson's Board needs to handle this rezoning decision carefully. See here and here for some past coverage involving the site. This site and the process around how it came into existence also was big piece of the discussion at the Summers Walk candidate forum during the past election cycle.
Davidson's Board likely will face two decisions on Tuesday involving this rezoning request. Each decisions provides an opportunity to support transparency in government.
The first decision involves the likely request from Commissioner Bran Jenest to recuse himself from voting on the actual rezoning. His firm ColeJenest&Stone is doing work on the project. Based on email communication with Commissioner Jenest, he indicated that he "absolutely" intends to recuse himself. However, that does not mean he will be allowed to recuse himself. The rest of the Board will likely have to agree.
Based on research done by the staff at the UNC School of Government, there are multiple State statutes involving when elected officials can recuse themselves. In most cases the standard is that a “direct, substantial, and readily identifiable” financial impact must be present for the elected official to be recused from voting on something. In the past Davison's other Board members have allowed Commissioner Jenest to vote in similar situations. See the vote on MSC's sign as an example. This is based on the idea that there is not "direct" benefit to Commissioner Jenest from this type of specific vote. However, it also seems reasonable that one could argue that as a name partner in the firm doing the work there certainly is benefit. Additionally, without knowing the exact details of the contract between Commissioner Jenest's firm and CHS, there is really no way of knowing if there is benefit. Understanding that Commissioner Jenest knows the rules as well or better than the other Commissioners since he's been through this on other issues, if he offers to recuse himself from voting on the rezoning, then the other Commissioners should take him at his word that his situation meets the standards and allow him to recuse himself.
That brings us to the second opportunity for the Board to support openness and transparency in government. Regardless of whether or not Commissioner Jenest votes in the actual rezoning, the Board should deny this rezoning request. There are multiple reasons why this request should not be approved.
First, it's not much of a secret that CHS was attracted to this parcel in large part because they were told they had "by right" privileges to build what they wanted without rezoning. They apparently accepted that. CHS did not want to experience any of the pushback they received when the facility was originally planned for Huntersville. Now that the facility is built, CHS coming back to ask for a rezoning of the entire property to Conditional zoning from its current Flex zoning seems like a bit of a bait and switch. They knew the zoning going into the project. They knew the town's sign ordinance. They should live within the current requirements.
Second, Davidson makes a big point that all parts of town should be treated the same when it comes to planning and design. They should stick to that principle here. Also, the precedent of the MSC sign decision should not really apply to this zoning request. The MSC site is in the main commercial area of Davidson and it was argued at the time that MSC's sign request really impacted I77, not Davidson proper. On the other hand, CHS is on a main road driven by many Davidsonian's every day and the nearby development is almost entirely residential. Not allowing a lighted sign on this road best fits with the surrounding development. It also prevents changing the entire zoning designation for a simple sign change.
Finally, and maybe most importantly, denying this petition would go a good way towards repairing what is a perceived lack of response to concerns from some folks on the east side of town regarding this site and project.
How the Davidson Town Board handles these issues Tuesday will in some ways set the tone for the Board. It will be interesting to see how it goes.
UPDATE: Based subsequent discussions, this zoning change will actually only impact the sign not the rest of the requirements under the existing zoning.
Now it's time to get down to business, and one of the first items Commissioners will tackle involves the new CHS behavioral health hospital on highway 73. Like it or not, this facility is controversial for some of the residents who live out that way, and Davidson's Board needs to handle this rezoning decision carefully. See here and here for some past coverage involving the site. This site and the process around how it came into existence also was big piece of the discussion at the Summers Walk candidate forum during the past election cycle.
Davidson's Board likely will face two decisions on Tuesday involving this rezoning request. Each decisions provides an opportunity to support transparency in government.
The first decision involves the likely request from Commissioner Bran Jenest to recuse himself from voting on the actual rezoning. His firm ColeJenest&Stone is doing work on the project. Based on email communication with Commissioner Jenest, he indicated that he "absolutely" intends to recuse himself. However, that does not mean he will be allowed to recuse himself. The rest of the Board will likely have to agree.
Based on research done by the staff at the UNC School of Government, there are multiple State statutes involving when elected officials can recuse themselves. In most cases the standard is that a “direct, substantial, and readily identifiable” financial impact must be present for the elected official to be recused from voting on something. In the past Davison's other Board members have allowed Commissioner Jenest to vote in similar situations. See the vote on MSC's sign as an example. This is based on the idea that there is not "direct" benefit to Commissioner Jenest from this type of specific vote. However, it also seems reasonable that one could argue that as a name partner in the firm doing the work there certainly is benefit. Additionally, without knowing the exact details of the contract between Commissioner Jenest's firm and CHS, there is really no way of knowing if there is benefit. Understanding that Commissioner Jenest knows the rules as well or better than the other Commissioners since he's been through this on other issues, if he offers to recuse himself from voting on the rezoning, then the other Commissioners should take him at his word that his situation meets the standards and allow him to recuse himself.
That brings us to the second opportunity for the Board to support openness and transparency in government. Regardless of whether or not Commissioner Jenest votes in the actual rezoning, the Board should deny this rezoning request. There are multiple reasons why this request should not be approved.
First, it's not much of a secret that CHS was attracted to this parcel in large part because they were told they had "by right" privileges to build what they wanted without rezoning. They apparently accepted that. CHS did not want to experience any of the pushback they received when the facility was originally planned for Huntersville. Now that the facility is built, CHS coming back to ask for a rezoning of the entire property to Conditional zoning from its current Flex zoning seems like a bit of a bait and switch. They knew the zoning going into the project. They knew the town's sign ordinance. They should live within the current requirements.
Second, Davidson makes a big point that all parts of town should be treated the same when it comes to planning and design. They should stick to that principle here. Also, the precedent of the MSC sign decision should not really apply to this zoning request. The MSC site is in the main commercial area of Davidson and it was argued at the time that MSC's sign request really impacted I77, not Davidson proper. On the other hand, CHS is on a main road driven by many Davidsonian's every day and the nearby development is almost entirely residential. Not allowing a lighted sign on this road best fits with the surrounding development. It also prevents changing the entire zoning designation for a simple sign change.
Finally, and maybe most importantly, denying this petition would go a good way towards repairing what is a perceived lack of response to concerns from some folks on the east side of town regarding this site and project.
How the Davidson Town Board handles these issues Tuesday will in some ways set the tone for the Board. It will be interesting to see how it goes.
UPDATE: Based subsequent discussions, this zoning change will actually only impact the sign not the rest of the requirements under the existing zoning.
Thursday, April 11, 2013
CHS Breaks Ground Friday, Construction Site Problems Outlined at Town Board Meeting
As DavidsonNews.net reports, Carolinas Healthcare System (CHS) will conduct an official groundbreaking on Friday at its new mental health facility on the Davidson East property, but as became apparent at this week's Town Board meeting problems began at the construction site weeks ago when site preparation actually started.
During Tuesday's meeting, Davidson Planning Board member, Martha Jenkins, read a prepared statement about her experience as a neighbor of the construction site. Her statement was not focused on the nature of the facility, but solely on the impact its construction has had on her property.
Her below comments reflecting the impact of a planning decision by the Town on individual citizens and their property came on the same evening the Board voted on the controversial Woodie's Auto facility and the public hearing for a proposed 124 unit retirement community at Exit 30. Both of those proposals drew valid comments from concerned neighbors. Both will likely be very good additions to the town. At the end of the discussion on Woodie's, Commissioner Wessner strongly recommended that Woodie's reach out to the surrounding residents to do what it can to alleviate their concerns and be a good neighbor. That was good advice.
Ms. Jenkins comments show what can happen when that does not occur.
Begin Mrs. Jenkins comments:
Fast forward
from those charrettes to new ownership and a lawsuit; today, the mental
hospital construction is in high gear.
Since the property was resold in January 29, 2013, construction began on
February 19 and has been going at a furious pace – six days a week from 7am to
6pm. Trees of all sizes have been cut
and removed from the site at an amazing rate and with an enormous amount of
noise. Pipes have been placed in the
creek and back property elevation lines have been raised significantly above
the original elevation. Trucks,
construction equipment and people have rolled on and off this tract at a rate
that has made my head spin and terrified our horses. On Day One of construction, our two horses
ran and raced all that day in our pasture due to the new activities. On Day Two of construction, we had to move
our horses for boarding due to the constant noise of the construction and their
fear of the equipment.
Tonight I am
here to ask for consideration on substantial fencing and/or a land berm to
separate this business zoning from our rural reserve zoning. I have made over three requests to CHS to not
come on our property. Week after week,
we found more surveying tape on our creeks over the area that CHS had asked for
a sewer easement. Since we have not
hired nor requested any surveying to be done on our property and had declined
the CHS sewer easement request, this surveying was not done on behalf of the
Jenkins. Then, two weeks ago, we were
dealt the most degrading and unhealthy example of trespassing. Foam
and plastic lunch debris was left on the Jenkins property, along with a
cigarette butt (and none of us are smokers)-across the silt fence. But the worst was yet to come. Nearby were two piles of toilet paper plus human
waste….. I serve on the first responder
team at work so I have been taught that human bodily fluids should not be touched
for 2 weeks-unless sterilized- due to the time that germs can survive outside
the body. I immediately reported this to
the remaining work crew who said their supervisor had already left for the
day. Then, I sent an email to CHS with
photos documenting the trespassing and the toilet paper. One port-a-jon was brought on site – at the
highway edge – sometime after March 12 so I only can surmise what the workers
used for the first three weeks? A second
port-o-jon was added last week. I will
put on protective gear and remove the toilet paper and human waste when I don’t
have to fear the hazards.
During Tuesday's meeting, Davidson Planning Board member, Martha Jenkins, read a prepared statement about her experience as a neighbor of the construction site. Her statement was not focused on the nature of the facility, but solely on the impact its construction has had on her property.
Her below comments reflecting the impact of a planning decision by the Town on individual citizens and their property came on the same evening the Board voted on the controversial Woodie's Auto facility and the public hearing for a proposed 124 unit retirement community at Exit 30. Both of those proposals drew valid comments from concerned neighbors. Both will likely be very good additions to the town. At the end of the discussion on Woodie's, Commissioner Wessner strongly recommended that Woodie's reach out to the surrounding residents to do what it can to alleviate their concerns and be a good neighbor. That was good advice.
Ms. Jenkins comments show what can happen when that does not occur.
Begin Mrs. Jenkins comments:
April 9,
2013
Good
evening.
My name is
Martha Cooke Jenkins. I have lived at
16824 Davidson Concord Highway in the Davidson ETJ for 21 years. Before that, I lived in Cornelius or its ETJ.
My husband, Lawson Jenkins grew up ½
mile west of our house so he has lived in the Davidson ETJ his entire life. We both have been North Mecklenburg residents
for over 57 years.
Lawson,
Adam, Phillip and I have had an idyllic farming lifestyle on our small 16 acre
tract…an older home with acreage and animals. On our western boundary, we have
had the best neighbors in the world – a family with children about the same age
as ours and the same complement of livestock.
Our eastern boundary was wooded and vacant until 3 months ago. I was called to the Davidson Town Hall at the
end of April 2012 to learn about the development plans for the 34 acre eastern
tract. As I told John Woods that day, “we
don’t own the universe – just a small tract” – but I was in shock with the
series of events that lead to the plans for a mental hospital on this eastern
tract of land. As both a Davidson ETJ
resident and member of the Planning Board, I had been to every charrette and
Planning Board meeting to work on plans for Davidson East and its extensive
residential and business plans. I don’t
think I missed a single session to plan the neighborhood for the then Jacobus
property.
Fast forward
from those charrettes to new ownership and a lawsuit; today, the mental
hospital construction is in high gear.
Since the property was resold in January 29, 2013, construction began on
February 19 and has been going at a furious pace – six days a week from 7am to
6pm. Trees of all sizes have been cut
and removed from the site at an amazing rate and with an enormous amount of
noise. Pipes have been placed in the
creek and back property elevation lines have been raised significantly above
the original elevation. Trucks,
construction equipment and people have rolled on and off this tract at a rate
that has made my head spin and terrified our horses. On Day One of construction, our two horses
ran and raced all that day in our pasture due to the new activities. On Day Two of construction, we had to move
our horses for boarding due to the constant noise of the construction and their
fear of the equipment. 
Tonight I am
here to ask for consideration on substantial fencing and/or a land berm to
separate this business zoning from our rural reserve zoning. I have made over three requests to CHS to not
come on our property. Week after week,
we found more surveying tape on our creeks over the area that CHS had asked for
a sewer easement. Since we have not
hired nor requested any surveying to be done on our property and had declined
the CHS sewer easement request, this surveying was not done on behalf of the
Jenkins. Then, two weeks ago, we were
dealt the most degrading and unhealthy example of trespassing. Foam
and plastic lunch debris was left on the Jenkins property, along with a
cigarette butt (and none of us are smokers)-across the silt fence. But the worst was yet to come. Nearby were two piles of toilet paper plus human
waste….. I serve on the first responder
team at work so I have been taught that human bodily fluids should not be touched
for 2 weeks-unless sterilized- due to the time that germs can survive outside
the body. I immediately reported this to
the remaining work crew who said their supervisor had already left for the
day. Then, I sent an email to CHS with
photos documenting the trespassing and the toilet paper. One port-a-jon was brought on site – at the
highway edge – sometime after March 12 so I only can surmise what the workers
used for the first three weeks? A second
port-o-jon was added last week. I will
put on protective gear and remove the toilet paper and human waste when I don’t
have to fear the hazards.
Last week, CHS
installed temporary construction fencing along our boundary which was a welcome
relief. However, there are no plans by
CHS to place permanent fencing. I want
to appeal to the Town to 1) require permanent fencing and/or a berm to ensure
the property lines are permanently delineated and all personnel on CHS’s
property (today and in the future) will clearly know where the property lines
are and 2) that CHS clearly ensures that the Jenkins property does not suffer erosion
from water run off from CHS construction.
While the construction is underway, there is time for measures to be put
in place to prevent run off issues from the CHS paved parking lot and from
their retention pond. Maybe they have
this covered and I will be pleasantly surprised with measures to prevent
erosion issues to our property.
I understand
that ETJ residents have no voting rights so I am using this opportunity tonight
during citizen comment time. I hope the
Town of Davidson will step up and require the adjoining property owner protection
to delineate the property lines as the zoning transitions from business to
rural. We are where we are today… and we
need to ensure that each property owner has the opportunity to use their
property to the fullest without infringing on the adjoining property owner. Please, please, please – follow through with
proper transition from zoning categories and protection of property.
Tuesday, May 29, 2012
Red Line, Mi-Connection, CHS Mental Health Facility Hot Topics at Commissioner Chat
Davidson's Commissioner Chat Tuesday evening started off with a request for an update on the Red Line, but quickly turned a bit tense when comparisons were brought up to the decision to join Mi-Connection. This snowballed into more discussion on the proposed CHS Mental Health facility at the failed Davidson East site, and after two solid hours of discussion it's safe to say none of these major issues are anywhere near gaining a broad level of community concensus.
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