On Tuesday, we talked about the Fairfield at Hillandale rezoning and the D.P.D. quarterly report. But there was more to the five-hour-plus ordeal than that, including three particularly interesting land use cases that are worth a closer look -- besides the change to commercial neighborhood zoning, which passed unanimously.
Gateway Terrace Intrigue: Applicants for the Gateway Terrace project, a 68,000 sq. ft. hotel and 7,250 sq. ft retail project proposed by the MJM Real Estate group next to Patterson Place, found themselves in an unusual situation Monday night on a redevelopment: opposition from a neighboring property owner who wanted to make the project bigger.
The project, adjacent to future expansion by Patterson Place off 15-501 and Southwest Durham Drive, had a valid protest petition filed against it. (On a night when the Fairfield at Hillandale protest petition by residents was noted to have been revoked, ironically, this developer-led petition held court.)
Local attorney Ken Spaulding, representing the developer, noted that this project affected less than 6 acres and was in accordance with the Comprehensive Plan.
"The site is already surrounded by mostly commercial properties, and we are consistent with all land uses in the area. Major road improvements are already underway in this area, prior to this rezoning," said Spaulding.
Spaulding noted this project is an "important gateway to Durham" and that it would be designed to create a "welcoming and aesthetically pleasing" entry to the city.
The attorney noted no opposition to the project -- save one: "We have received and heard of no opposition from the neighboring areas, except for the adjacent developer property owner, who has filed a protest petition to this rezoning." Spaulding noted the applicant "respect[ed] his rights" and had worked to try to address those concerns raised by the Planning Commission and some Council members through additional committed elements, including additional curb and gutter, tree preservation, designing "wet detention" for the stormwater management, and leaving an undisturbed right of way along 15-501 with new plantings.
Intriguingly, the owner of the property, Raleigh-based MJM's CEO Vinita Mittal, noted that her company had closed on the property before the rezoning was complete, as the sellers were themselves constrained by expiring purchase options. But Mittal claimed she didn't consider this a bad business deal, since MJM felt the property met all the city's requirements for a rezoning, and that "we had faith in the public political process in Durham that it was worth the investment to go ahead and close on the property."
(Did we mention the Mittals are from Raleigh?)
Mittal noted that the protest petitioner didn't have a problem with the development -- but instead wanted MJM to purchase almost one acre of his land. "Even if we were able to purchase it, which we cannot, we would have to stop this rezoning" and start the process anew, Mittal said, claiming they could not incorporate that property in their project.
Bob Zumwalt from the John R. McAdams Co. noted that a number of revised committed elements had been added, including adding curb and gutter along most of Watkins Road, and preserving tree coverage within 100' of the western property corner along Watkins.
The opponent, Michael Waldroup -- developer of Patterson Place, described by the INC way back in '98 as Durham's first mixed-use development -- stood alone in opposition, due to his ownership of an adjacent parcel he claimed would be uniquely impacted by the rezoning.
Noting the parcels affected by the rezoning were tightly packed into a triangle at the corner of 15-501 and Southwest Durham Drive, Waldroup stated that the Mittals controlled all of the triangle except a sliver belonging to him.
According to Waldroup, he had had to purchase that parcel in order to get right-of-way for Southwest Durham Drive back when he built Patterson Place. It was a "very reluctant business decision" to avoid going to court, he noted.
"I had every expectation that at some point, somebody would come along and essentially assemble the Blackwood and Witherspoon property" and he could work out a deal to get rid of the parcel.
"We have $3.5 million invested in that road; we have $350,000 invested just in that little piece of property," he said about the .7 acre property.
"If you know the property... it is highly unlikely that that parcel, at that value, could ever gain access from Southwest Durham Drive," Waldroup added, noting the presence of a retaining wall needed for Patterson Place there. He argued that without a cross-access easement from Gateway Terrace, there would be no value for the property.
Waldroup helpfully addressed the Mittal's development plan, providing a markup of how, if they bought his property, too, they could actually get the hotel and two restaurants on the parcel.
How thoughtful of him! Naturally, though, that design would take advantage of Waldroup's property, too, and could best be incorporated through an outright purchase, a number that Mittal and Waldroup couldn't agree on.
"What's interesting is they're having to buffer their property against a residentially-zoned piece of property," said Waldroup in reference to his own .7 acre strip, noting how much additional square footage they would gain by buying his own property.
Waldroup's protest seemed to leave some head-scratching on Council, which found itself drawn into what certainly could be construed as a dispute between two developers over a land sale -- and a situation where the Patterson Place developer was asking the City to turn down the rezoning pending a sale that could bring the city more tax revenue.
"Are you better off making a decision in favor of a one hotel, one restaurant, and [Waldroup's] single-family lot... or do you think at least this one hotel, two restaurant option ought to be explored?" he asked, noting the tax value the City would get from having additional restaurants on the land.
Councilman Ali asked Waldroup if he was asking the Council "to get involved with a business decision before we make a policy decision on the zoning?"
"What exactly are you protesting?" Ali said, noting that Waldroup had made a "great performance," but was trying to understand exactly what the protest position was about.
"I bought this parcel largely as an accomodation to a process ... I was required to undertake," Waldroup said, suggesting that only 25% of the traffic on that road goes to his development. "We had to buy this property, we'd like to shed it, we'd like some partial reimbursement" for the infrastructure he's invested in.
"Are you asking us to get involved in a business deal" between Waldroup and Mittal, Ali pressed. "Unfortunately, we can't be businesspeople for you in this deal... We can't go telling you how to cut a deal."
Waldroup demurred, noting that he was protesting both the impact of the rezoning on his land value as well as the possible lost chance to get a better development project out of the deal -- but seeming to conclude to Ali's line of questioning that he hoped to have more time to "reach an accomodation" of time to move the property off his company's books.
"So this is really about you getting them to purchase this land so you can be out of this process?" Ali concluded.
"In many respects, yes," Waldroup said.
Eugene Brown thanked Waldroup for bringing the detailed presentation and pro forma, but noted that he was "queasy" based on Ali's questioning about "a protest petition being used primarily -- maybe not totally, exclusively, but primarily -- to force a real estate transaction, a purchase of your piece of property" at Waldroup's asking price.
"Maybe I'm wrong on this, Mr. Mayor, but I just don't see a protest petition being used for this nature of a transaction," Brown added. "We do public policy here, we don't do real estate."
Waldroup added that he didn't think it would take much to get to the sale -- adding that "they went $600,000," which to this observer implied they had been willing to offer that much money for the parcel, roughly twice the assessed tax value. (It appears Waldroup was asking for $700k plus on the property, though the exact fixed number did not emerge during the conversation.)
It's got to be the first time I've seen a developer -- given that developers usually eschew limits by government on what individuals can or can't do with their land -- asking government to do just this on land they don't own.
"You think you're queasy? We've been queasy about this from the very beginning," Ken Spaulding added, noting that the Mittals were not interested in purchasing the property, and implying that the Mittals' status as non-Durhamites may have factored into the protest petition filing.
Waldroup noted that his asking price sought to recoup some of the investment that he and his team had invested in site preparation for Patterson Place that the Mittals would get to use as a free ride. He noted that roads are not subject to infrastructure repayment when future development comes along in the way that sewer and other utilities are.
The remainder of the public record discourse on the item seems lost, oddly, to an unfortunate overdubbing of Muzak over the Council meeting video -- though with a 7-0 vote in favor of the rezoning, perhaps the outcome isn't so hard to understand.
Eno Drive Future Land Use Change: In other Council action, the body approved the reduction in intensity of use for a number of parcels to the east side of Roxboro St., part of the ongoing unraveling of Comprehensive Plan long-range uses set for the long-departed, little-lamented Eno Drive. Local government proposed locking in the Future Land Use Plan designation at low-density residential, matching the current zoning on the property (and thus making it harder to secure greater density in the future.)
Ken Spaulding, representing several of the landowners affected, spoke in favor of the Comprehensive Plan change. "They will explore any future specific development with the knowledge of the staff's willingness to review any said proposal on its merits," Spaulding said. "We thank this Council and this staff for helping to clarify my clients' questions regarding the consequences of this measure."
Paul Keller, president of the Old Farm Neighborhood Association -- after making a plug for the affordability of his tight-knit neighborhood -- also stated his support for the proposal.
Keller noted that the land is not felt to be conducive to commercial development, since Eno Drive is no longer relevant. "Since that was taken off, it didn't make sense to have commercial development there," he said, noting the "adverse effect" on water runoff, traffic and noise of any development there with the current infrastructure. He also noted the neighborhood's desire for any development to match the character of the existing dwellings, which include a relatively low density, off-street parking and larger lot sizes.
Opponents asked whether the City had given due consideration to the need for the change, and whether the "repurcussions" on the community, notably as to whether this change would make development of more residential units more likely.
James Hayslett spoke eloquently about his own history in the Old Farm, his home for decades. He stressed that he had been among the opponents of the Eno Drive decades ago, speaking of the fight for justice carried all the way to the governor's office.
Hayslett noted that commercial development could bring jobs, rather
than leaving the North Durham corridor a strictly residential zone.
"Our community can't stand a whole lot of more people," Hayslett said. "People cause all kinds of problems... traffic, schools, etc. And if you don't have, inside of this proposal that you are about to have voted on, those concerns -- and I haven't seen anything that deals with those concerns -- then we have problems."
"This is not, and should not be considered, a bedroom community. I mean, we have too many of those. And if you have too many people, you have a whole lot of crime, and we have a whole lot of problem," he added.
Mayor pro tem Cora Cole-McFadden emphasized that this was a strictly prophylactic effort on the City's part to protect the area from over-development. "There's nothing out there [in terms of proposed projects], but it's better for it to be zoned residential than commercial at this time," Cole-McFadden noted in stating her support.
City/County Planning staff emphasized that the current zoning already prohibited commercial development, and that this was strictly a change to long-term future uses. "They would have to rezone in order to develop," noted planner Joe Carley.
"This issue has gone on for decades," City Councilman Mike Woodard said. "Tonight what we're doing is taking another step in cleaning up that mistake," he added, emphasizing the transparency and community involvement in the process along the way, including notification and community meetings.
The Council eagerly, and unanimously, approved the land use map change.
Angier Haven: The developer of a project for self-described affordable housing on Angier Ave. behind US 70 got some tough questions from City Council on a project already approved by the County Commission. Cliff Zinner of R.D. Construction, a firm active in both downtown Raleigh and Durham market-to-affordable housing, tackled the questions during a rather energetic back-and-forth.
Diane Catotti and Mike Woodard grilled the development team on a number of items, from the developer not committing in the development plan to make the housing affordable by particular income criteria, to the decision not to add a voluntary donation to the Durham Public Schools to offset the impact of more families in schools, to not adding a pedestrian bridge requested by the Durham Open Space and Trails commission.
You do have to feel a bit bad for the mixed messages folks get from our local governments, though. Catotti inquired as to why an initially-proposed 4' bike lane improvement on Angier had been scaled back by the developer -- only to learn that the change to 2' non-bike outside lanes came at the request of the County Commissioners, who expressed concern about a disconnected bike lane in the middle of Angier.
A befuddled Catotti asked, "Can you just clarify... so you're saying this is a request of the County Commission to change it back. But if the City Council prefers it the other way, are you all still amenable to the four foot bike lane? ... Are you with me?"
After learning that a 2' lane would extend for a longer length of Angier, between Street A and Ruritan Rd, the Council sleepily moved along with the idea of a 2' lane -- until the developer stated he was looking to do the 2' lane only in one direction, only on one side of the road! Once again clarified, and with the developer agreeing that he would in fact do the lanes in both directions, the conversation finally progressed.
Councilman Ali asked why the developer wouldn't commit to doing this as affordable housing; he noted his firm had worked on projects such as this in locations like the Barnes Ave. project for the city, but that he wasn't applying for the municipal funding needed to have a truly all-affordable project.
"The market says there's no demand there except affordable housing," the applicant said. "I tried to get the Community Development department interested... They chose not to allocate the resources here. That was five years ago," said Cliff Zinner, the developer. He noted the average home price would likely hover around $150,000.
The zoning change (to suburban multifamily) passed unanimously, after much consternation as to how this project had to hit City and County boards.
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