Fiery Retort to Official’s ‘Information Paper’ on Rezoning

CAPE CHARLES WAVE

February 9, 2015

An “Information Paper” by Northampton County Economic Development Director Charles McSwain is being fiercely challenged by the anti-rezoning group “Citizens for Open Government,” led by Exmore businessman Ken Dufty.

McSwain challenges “statements made in flyers over the past year” with a “point-by-point” response. Dufty, rising to the challenge, is refuting McSwain’s claims. The Wave reports the battle below, but readers looking for something shorter should CLICK for Wayne Creed’s report. A Letter to the Editor from Ken Dufty was received after both these reports were compiled. CLICK to read the letter.

McSWAIN CHARGES: Flyer says “Rezoning of nearly 3,000 acres of agricultural lands to residential and commercial use.” In fact, 3960 currently agriculturally zoned acres were redistricted to other uses more consistent with their actual current use or in the case of commercial property, their highest and best use consistent with adjacent existing uses and planned infrastructure. In addition, 4845 acres were rezoned from other uses to Agriculture. The net change in the proposed draft is an increase in agricultural district zoning by 885 acres of land. The flier statement is misleading. The County will have more agriculture district land.

DUFTY RESPONDS: While attempting to persuade that this statement is false or misleading, McSwain admits that the flyer underestimated the rezoning of agricultural lands that were redistricted to other uses. The McSwain paper states that in fact, 3960 currently agriculturally zoned acres were redistricted to other uses.However, the paper also states that other lands were rezoned to agricultural lands, making the net change 885 acres more agricultural land than previously districted. This criticism of the flyer is misplaced at best, and in reality misses our entire point regarding this rezoning. First, the majority of landowners who own ag land under the current zoning ordinance and who are proposed to be rezoned into residential or other uses, never petitioned the county for that rezoning classification. The redistricting of ag lands to a higher or best use without the request of the individual landowners is impermissible, and is akin to a taking, and the redistricting will potentially result in tax increases on the property owners who have had their lands reclassified without their consent. Also, our point in the flyer was that redistricting ag lands into other uses will allow residential density increases that were not envisioned or wanted by the landowners when they invested in their property.

CONTINUED FROM FIRST PAGE

McSWAIN CHARGES: Flyer Says “Elimination of Town Edge Districts and bypass local input into what uses will be allowed on the edge of incorporated towns.” Town Edge has been eliminated. True. The reason it was eliminated is that the Town Edge has not led to any new development adjacent to the towns. It was the intent of the Town Edge to encourage development near the towns, which is still the objective of the 2/15 draft zoning code. The problem with Town Edge was the difficulty to use the district to develop. It was structured in a way that created multiple layers of approvals at public hearings. This additional process is not attractive to people who want to develop. The proposed 2/15 draft code is intended to allow low impact uses near the towns without requiring a rezoning hearing. The specific zone proposed is similar to its original zoning prior to 2009 or based on the best type of use considering its adjacent uses and potential traffic generation. Eliminating town edge simplifies the zoning process but still retains a special use requirement or requires performance standards for more intense uses or allows for a rezoning.

DUFTY RESPONDS: The citizen flyer said that the proposed elimination of the Town Edge Districts would bypass local input into what uses would be allowed on the edges of town. The McSwain paper does not refute this, and we wonder why this point was even attempted to be painted as confusing. The McSwain paper does say that the town edge approval process as currently contained in the current ordinance is not attractive to people who want to develop. But there is no justifaction, studies, or evidence presented to justify this elimination of Town Edge Districts, nor is there any concrete examples of anyone who wished to develop an area around a town but did not because of the imposition of an additional approval process. In short, the citizen flyers on this point were accurate and stand unchallenged by credible statements.

McSWAIN CHARGES: Flyer says “Allowing invasive uses on agricultural lands, many without notice to neighbors, such as: waste incinerators, wastewater treatment plants, prisons, racetracks, shooting ranges, biomass oil refineries, manure storage, large scale poultry houses and more.” Neither the public hearing draft nor the 2/15 draft have by right uses of prison, waste incinerators and the like. Uses such as waste water treatment plant were originally considered given the potential needs of some farm operations to provide treatment for operating by-products. The Board agreed that agricultural land should be focused on agriculture.

DUFTY RESPONDS: The McSwain paper suggests that the flyer stated that “prisons, waste incinerators, biomass oil refineries, manure storage, large scale chicken houses, wastewater treatment plants,“ etc. were going to be allowed by right. The flyers never said that, except in the case of the biomass conversion plants which were originally proposed to be included by right in ALL districts in the 2014 public hearing draft document. Many invasive uses are still proposed to be allowed in ag districts, including the term use classified as waste related, with the requirement that the prospective developers wishing to locate those facilities in Northampton County obtain a special use permit. But because many of these are still listed in the new ordinance, they are an allowable use. In short, the citizen flyers on this point were accurate and stand unchallenged by credible statements.

McSWAIN CHARGES: Flyer says “Changing density to as much as 400% over current limits.” Very little density increase is proposed. Densities are generally the same except in Hamlet the density can double to about 4/acre if building multi-family. Village is the same density if a special use permit is obtained under current zoning. The ability of building multi-family units, like a duplex or small apartment building, has been added by right in some districts. The statement above must be taken from the extreme and unusual case where single family homes in the village district get twice (200%) the density and the ability to build a second principal dwelling. In fact, the minimum size where in two houses can exist with setbacks and separate water and septic systems are installed is one half acre; thus the density could not in practice get to a 400% increase.

DUFTY RESPONDS: The citizen flyer said the proposed zoning ordinance would result in dramatic increases in density, and the McSwain paper responds by saying “this statement is completely wrong — see the density chart to form your own conclusion.“ However, the density charts, while reflecting in many cases a very dramatic and uncalled for increase in the number of multi-family and mixed use buildings per acre, never reflect the addition of an accessory dwelling, which by themselves doubles the density limits compared to the current zoning ordinance. Therefore, the citizen flyers on this point were accurate and stand unchallenged by credible statements to the contrary.

McSWAIN CHARGES: Flyer Says “Reducing lot widths along the seaside villages from the current 250’ to 60’ or less.” Seaside zoning is mostly agriculture or conservation with a 250’ shoreline width in place in the proposed 2/15 draft. The 60’ shoreline width is only for Working Waterfront and Village Waterfront Business. These districts are designed to aid working waterfront uses and provide more flexible use of property for waterman. A small amount of waterfront land is zoned Hamlet and Village which is proposed to be 205’ waterfront lot widths. Further, the entire seaside outside of working ports has a conservation district which includes a 100’ shoreline building setback as a buffer along the shore. The complete conservation district shoreline was added when the CBPA was removed, but it remains even though the Board has reinstated the CBPA overlay on the Atlantic side.

DUFTY RESPONDS: Next targeted is the statement in the citizen flyer that Shoreline Widths along seaside vilages may be reduced from 250‘ to 60‘ or less. That statement in the citizen flyer is based on the 2014 Public Hearing Draft, which is the only controlling document to date, as no official vote has been taken to adopt any changes or revisions to the 2014 Public Hearing Draft. While the McSwain paper refutes that claim by saying the Shoreline Width is actually proposed to be 205‘ rather than the 60’ the flyer references, a consensus on that change was only reached at the BOS worksession on January 26, 2015, and has not been officially adopted as a revision to the Public Hearing Draft of 2014. The citizen flyer that McSwain references was last distributed months ago, and reflected the record as it then existed. In short, the citizen flyers on this point were accurate and stand unchallenged by credible statements.

McSWAIN CHARGES: Flyer says “Eliminates Mobile Home Parks as an allowed zoning district, making it illegal for existing mobile home parks to expand or add more homes.” Currently a district exists for mobile home parks. This is changed to a Planned Unit Development (PUD) permission requiring such parks to present their plan of development for a public hearing before the Planning Commission and Board of Supervisors. Existing mobile home parks will continue as non-conforming uses. Such existing parks could replace existing mobile homes with new mobile homes and can add mobile home sites if they are on lots previously approved in a plan of development. Otherwise the expansion of an existing mobile home park would require filing a new PUD for approval.

DUFTY RESPONDS: The citizen flyer informed that Mobile Home Park Districts were proposed to be eliminated, making it illegal for existing mobile home parks to expand or add more homes. The McSwain paper attempts to suggest that this is misleading, although he admits that the Mobile Home Park as an allowable district is not included in the proposed zoning ordinance. He does point out that Mobile Home Parks can apply for a complete rezoning into a Planned Unit Development, and that existing mobile home parks can continue as a non-conforming use. Note that a non- conforming use means that the parks are unable to expand or add new homes on a wider footprint. Therefore, the citizen flyers on this point were accurate and stand unchallenged by credible statements.

McSWAIN CHARGES: Flier says “Eliminates the Chesapeake Bay Preservation Act on lands east of Route 13.” This idea was originally proposed in tandem with a 100’ wide conservation district building setback along the entire seaside coast excepting the working harbor areas. It was proposed to reduce the restrictions placed on waterman as to operations along their waterfront limiting development within 100 feet of the water’s edge. The idea was to make it easier to have efficient operations like a grading shed right at the docks without conflict from the 100 foot CBPA buffer. Since the aquaculture association informed the Board of their opposition to eliminating the CBPA from the seaside, the Board left in place the CBPA type regulations across the entire county as they are today. The 2/15 draft reflects this in proposed Chapter 158: Chesapeake Bay Preservation Act of Northampton County code.

DUFTY RESPONDS: McSwain attempts to suggest that the citizen flyer concerning elimination of the CBPA on the seaside was inaccurate and confusing. However, as we stated earlier, the only legitimate document released for public information and comment so far is the 2014 Public Hearing Draft that was released over a year ago. That document calls for the elimination of the CBPA protections on the seaside, exactly as the flyers claim. Therefore, the citizen flyers on this point were accurate and stand unchallenged by credible statements to the contrary.

McSWAIN CHARGES: Flier says “Bypasses the Planning Commission approval for many uses that now require special use permit.” There are currently thousands of individual uses which require special use permits. The Board directed the simplification of the process. The 2/15 draft greatly simplifies the list of uses. Many special use permit requirements were eliminated in favor of performance standards in an effort to get to the same result without forcing citizens to go through the time consuming and costly process of a special use permit. For uses which could potentially be offensive even following performance standards, an effort was made to include such uses as allowed only with a special use permit. Special use permits are still employed in the 2/15 draft.

DUFTY RESPONDS: The citizen flyer says that MANY uses that currently require going through a special use permit with public hearings and neighbor notification have been changed to by-right allowance. The McSwain paper, in an attempt to convince that the flyer was wrong on that point, simply explains why they eliminated Special Use Permits for MANY proposed uses, and finishes by saying Special Use Permits are still employed in the 2/15 draft. The citizen flyer never said that ALL Special Use Permit requirements have been eliminated in the proposed zoning ordinance revision, we simply said “MANY,“ and that statement stands as accurate and factual. Therefore, the citizen flyers on this point were accurate and stand unchallenged by credible statements to the contrary.

McSWAIN CHARGES: Flier Says “Dramatically increases density in most zoning districts, increasing the number of dwellings per acre from 400-4000%.” This statement is completely wrong. See the density chart to form your own conclusion.

DUFTY RESPONDS: The citizen flyer said the proposed zoning ordinance would result in dramatic increases in density, and the McSwain paper responds by saying “this statment is completely wrong. See the density chart to form your own conclusion.“ However, the density charts, while reflecting in many cases a very dramatic and uncalled for increase in the number of multi-family and mixed use buildings per acre, never reflect the addition of an accessory dwelling, which by themselves doubles the density limits compared to the current zoning ordinance. Therefore, the citizen flyers on this point were accurate and stand unchallenged by credible statements to the contrary.

McSWAIN CHARGES: Flier says “The proposed zoning ordinance flies in the face of the current Comprehensive Plan and violates the Commonwealth’s stated goals, objectives, code and law. It calls for large scale development and paving of lands along the aquifer spine and thus violates state code 15.2-2223 and 15.2-2283.” This cited code offers guidance to communities as to what should be considered in designing a zoning code. It addresses the balance needed between many simultaneous topics all dealing with the public good. In fact less than 787 acres have been zoned commercial in the 2/15 draft. That’s less than 1% of all land (.6% in fact). If such land is developed it must comply with environmental regulations including the retention of on-site rain water for percolation into the aquifer to address this specific concern. Also included among the things that should be considered is the economic viability of the county and the welfare and employment of its people. The proposed 2/15 draft is based on much research and study compiled by civic minded people, elected officials and staff.

DUFTY RESPONDS: The McSwain paper finishes its criticism of the citizen flyer when it says that the proposed zoning ordinance is inconsistent with state code by citing 15.2-2284 and copying the entire section of code in his report. Yet indeed, a simple read of this section reveals that the Commonwealth of Virginia requires a zoning ordinance to be based on economic and other studies, (according to McSwain’s own testimony at the March 11, 2014, Public Hearing on the proposed zoning ordinance NO STUDIES were performed); be reasonably consistent with the comprehensive plan (no one who reads both documents could ever seriously argue that the proposed zoning ordinance is reasonably consistent with the current comprehensive plan); the conservation of properties and their values; and the conservation of natural resources, among other things. McSwain finishes his report on page 15 by adding a line after the citing of this section of code, in bolded letters which simply says “The above guidance was adhered to by your Board of Supervisors.“ The citizen flyer maintains that the proposed zoning ordinance is inconsistent with law and code, and that statement is not countered nor diminished in its veracity by a contradictory claim, printed in bold-face, by one of the primary authors of the proposed zoning ordinance. Therefore, the citizen flyers on this point were accurate and stand unchallenged by credible statements to the contrary.

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One Response to “Fiery Retort to Official’s ‘Information Paper’ on Rezoning”

  1. David Kabler on February 9th, 2015 3:54 pm

    I think that many of us will agree that land development should require careful study before its use is radically changed and altered forever by construction of improvements that may exist for hundreds of years afterwards. When all is said and done, at the end of the day what really matters is how one may feel when a bulldozer pulls up next door and work begins on developing a high-impact use in the immediate neighborhood. The Special Use permitting process is meant to allow careful study and analysis of proposed high-impact land uses while giving close neighbors a chance to be heard about how their property rights and quality of life may be affected. The proposed zoning ordinance drastically changes this process.

    First, no longer will a Special Use Permit (SUP) require a public hearing before the Planning Commission (PC). Our commissioners are citizen volunteers appointed to serve the public interest in land use decisions and they are trained and certified to do so. At present, an SUP demands hours of careful study by the PC prior to the public hearing, when the commissioners are supplied with documents, maps, plats, photos, soil studies, planning staff comments, etc., and even take time for on-site visits. Their public hearing is a precursor to one before the Board of Supervisors (BOS) and allows the commissioners to hear from the applicant as well as neighbors, adjoining land owners, and members of the public. Their findings and conclusions are summarized under a vote that determines the PC’s yea or nea recommendation to the BOS, that may be accompanied by special conditions discovered in the process.

    Secondly, it is proposed that only the BOS will hold a public hearing for a SUP application. While it may seem onerous for an applicant to be required to submit to the time and expense of two public hearings under our present ordinance, that process allows for the most careful study of the proposed use in question and fully protects the rights of all concerned people. Our BOS are not trained and certified Planning Commissioners, and are further burdened with many more issues of government than land use. Their study of a SUP is greatly enhanced by the work of the PC beforehand, and it is not expected that the BOS conduct the in-depth study that the PC performs. Rather, the BOS is expected to weigh the recommendation of the PC with the public’s input and their own comparison with the Comprehensive Plan, as well as give consideration to matters of public interest such as economic development and budgetary concerns. The elimination of one public hearing as proposed does not serve the public interest but only that of the applicant for the SUP.

    In short, having served a term as a certified Planning Commissioner, I believe that the present process of two public hearings for SUPs should be retained in the interests of the public and the applicants. I cannot believe for a minute that the BOS can adequately review a SUP without the careful study and recommendations from the PC. The many revisions to the proposed county-wide rezoning ordinance by the BOS ignore this major flaw. There is only the comment from the Economic Development Director that eliminating the PC public hearing of SUPs is in favor of the developer. How about protecting my rights next door?