Monday, June 5, 2017

Legal issues outlined against "Lake Davidson" rezoning request

Yesterday, aShortChronicle told readers about tonight's hearing and vote on the massive Lake Davidson neighborhood rezoning request.  As part of that we mentioned the possibility of pursuing a move towards conditional zoning instead to give citizens more control.

Well, a petition has just started on with outlines a whole host of legal issues against the rezoning - including moving this to conditional.  The tone of the petition sure sounds like this one is headed to court if tonight's decision doesn't go the right way.

This certainly amps up the drama for the hearing.  The action starts at 6pm at Mooresville Town Hall.

Here are the details:

We are petitioning the Mayor and Board of Commissioners of the Town of Mooresville to DENY an Application for Rezoning of land located at 1814 and 1828 Mecklenburg Highway in Mooresville, North Carolina. 

The developer, Hinckley Gauvain, is requesting that the land be rezoned from Single Family Residential (R3) to Corridor Mixed Use (CMX) and Neighborhood Mixed Use (NMX) to build a proposed commercial and highly dense multifamily neighborhood development called "Lake Davidson Development." The developer has filed its Application for Rezoning as a "straight" rezoning request rather than a "conditional" zoning request.

We are strongly opposed to the rezoning request for the following reasons:

·The rezoning request is not a narrowing of the scope of the base zoning district, but rather an expansion from existing residential to high density multifamily and commercial; therefore, it cannot be reviewed as a "straight" rezoning request under Town Ordinance § 2.3.1(4)(A). Conditional zoning is critical to maintain control over development of this area.

·The subject land is identified in the Town's Comprehensive Land Use Plan as Employment Center - Office, not CMX and NMX. Additionally, the majority of uses allowed in the CMX and NMX zones will fail the 25-to-50 job test request required by the Comprehensive Land Use Plan for the Employment Center - Office classification.

·The subject land's existing watershed is "Lake Norman IV Critical," meaning that 50% of the land must be used for Single Family Residential (R3) in order to protect the lake. Neither CMX nor NMX allow the subject land to remain 50% Single Family Residential.

·Rezoning the subject land to CMX and NMX is inconsistent with the Town's Comprehensive Land Use Plan for Highway 115 to remain historic, scenic and rural.

·The rezoning request would significantly burden traffic. The Town's own Traffic Impact Analysis shows serious degradation of numerous roads surrounding the subject land to a level of service of F.

·Town Officials have repeatedly commented that this rezoning request should not happen until the East-West Connector is complete; however, no construction on the East-West Connector has even begun. The rezoning request should be denied until the East-West Connector is complete or there is a commitment from the State, Norfolk Southern, the Town and the developer to widen Highway 115.

·Upon information and belief, approximately six (6) landowners are funding the East-West Connector and will be paid for their property by a developer who will then develop and benefit from rezoning by the Town of subject land on Highway 115 up to and including Langtree Road. This gives an appearance of impropriety, particularly where tax payer dollars are used and rezoning benefits the developer and Town to the detriment of residents.

·There is no current need for the rezoning and the proposed Lake Davidson Development.

·There are no current changes in condition, such as a large corporate addition to the area, to necessitate this rezoning request and proposed development.
·This kind of development is too early. This area is still thoroughly pastoral and undeveloped and almost exclusively residential.

·The rezoning request and proposed development will destroy the lake, environment and rural nature of this area.

·Numerous public records requests, under N.C. Gen. Stat. § 132-1, have not yet been responded to by the Town. Until citizens are provided with said public records, no rezoning request should be approved and public comment should remain open.

·The subject land and surrounding neighborhoods are in Mooresville's Extra Territorial Jurisdiction (ETJ). Rezoning the subject land without giving adjacent neighborhoods the right to vote and other rights afforded to non-ETJ citizens is unconstitutional. As recently noted by the North Carolina Supreme Court in Town of Boone v. State, "Extraterritorial jurisdiction remains extraordinary because it broadens a municipality's jurisdictional reach beyond its corporate limits. This extension of extraterritorial jurisdictional authority deprives the residents of the extraterritorial area of meaningful representation and the right to vote for local government representatives who shape policies affecting their property interests." Further, no one residing in the adjacent neighborhoods has ever been represented on the Town's planning or adjustment boards.

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