We've talked at length here a few times about City/County Planning and the challenges and frustrations residents and businesses alike have faced with the Unified Development Ordinance (UDO).
One of the latest parts of the Bull City to run up against the precepts of the UDO and of Planning is the area around University Estates and Turnage Heights, off Moreene Rd. in western Durham. Jim Wise over at the N&O wrote a good story earlier this month (link unavailable) covering the basics of the case, which involves D&L Parts, a Durham-based purveyor of appliances and parts.
At the time, the City's perspective on the project seemed to be that the project was A-OK to move forward based on the current "Neighborhood Commercial" (CN) zoning in place for the site.
According to Janet Mittman, a resident active in trying to block the project, though, the project as conceived never fit the pattern of CN zoning in the first place. CN zoning, according to the UDO, is intended "to provide for commercial centers in close proximity to residential areas and to offer limited commercial uses to satisfy the needs of the surrounding neighborhood." All well and good, of course; who wouldn't want a neighborhood market, restaurant, house of worship, B&B or the like in the area?
And it was in that vein, according to Mittman and her supporters, that the project was described when they called Planning to ask about the planned re-use of the old Turnage's restaurant site. The business going in was a retail store, they were told, a use allowed under the old zoning.
Only problem from the neighbors' perspective is, D&L's wholesale business accounts for 70% of its business; they claim that the company sells appliances typically in large lots to commercial customers like builders and developers, not what you'd consider typical retail. Which explains the 13,000 sq. ft. steel warehouse complete with loading dock going up on Moreene.
All, mind you, in a "Neighborhood Commercial" district.
The latest wrinkle? Steve Medlin, who's standing in as interim Planning director after Frank Duke's resignation, notified neighbors in a letter dated Oct. 16 that the department has now decided that the intended business of D&L is in fact in violation of the UDO, as the site plan's description of business intent supposedly doesn't match the 'use contemplated.' All this in the context of D&L having gotten construction underway -- and now having the option of bringing the business use into compliance with intent, something neighbors seem to fear would leave a large, out-of-scale warehouse on the edge of their houses.
Mittman and her neighbors are scheduled to appear at the Board of
on Tuesday (now postponed until Dec. 11) to speak out about the project. The real question
is, how did the project get this far -- and did the Planning folks in
fact tell neighbors "don't worry" when they asked about this in the
Here's more from Mittman's latest email blast to various neighborhoods, also submitted as a letter to the editor at the N&O. The question now is, what happens next... and what is Planning "planning" to do to avoid controversies like this in the future?
In letter dated 10/16/07, Steve Medlin, Interim Planning Director, has now stated that the intended business of the current property owner (D&L) is in violation of the Unified Development [zoning] Ordinance and will not be permitted. We appreciate that Mr. Medlin has now acknowledged this violation (that we pointed out in August), however, the horrendous corrugated steel warehouse is now already half built, D&L has already spent $700,00 (per the owner), and Mr. Medlin has told them that they now have the option of bringing their business into compliance – a business (and thus construction), that never should have been permitted in the first place.
Mr. Medlin’s letter says that the reason for this sudden reversal of permission is due to D&L's "representations" about their business on the site plan as being different from the actual “use contemplated.” We had informed the city about this in early August ’07. The former Planning Director, Frank Duke, dismissed our questions, telling us to monitor the business once it was built and in operation! (Note that we did not learn of the intended use until construction began because we were misled during earlier inquiries. See my letter to the N&O 9/24/07 ). In any case, had the city practiced responsible due diligence when the D&L site plan was submitted, the proposal would and should have been denied.
Equally disconcerting is what seems to be an effort by the Planning Department to now derail our appeal process at the zero hour. Per the 10/16 letter, the city has changed their interpretation (that we opposed) of permitted usage, just before our scheduled hearing before the Board of Adjustment on Tuesday October 23. Having done so, Mr. Medlin suggests that we withdraw or postpone our appeal since our contest re: usage is now “moot.” This is unacceptable. The warehouse still exits, no one has accepted responsibility for an error AND this tactic could make it impossible for any Durham neighborhood to win an appeal! We will therefore continue our appeal, and regardless of the outcome, we will move forward with our opposition to the warehouse.
MOST IMPORTANT – The Planning Department is ignoring our most fundamental challenge which concerns the violation of UDO Article 4 “Intent Clause” for Commercial Neighborhood (CN) zoning. This statement provides for “commercial centers that offer limited commercial uses to satisfy the needs of the surrounding neighborhood.” “Compatibility is facilitated through design standards…that complement nearby residential neighborhoods.” The D&L warehouse violates all of these, in addition to violating overall purposes of the UDO (1.2.2A) to “protect existing neighborhoods, preventing their decline and promoting their livability” and (1.2.2T) to “encourage an aesthetically attractive community.”
We are being told that the CN Intent statement is only looked at when there is question or ambiguity about usage. According to them, having now reinterpreted and therefore solved the usage issue, the intent is no longer considered! In conversation with numerous individuals involved with land usage throughout Durham’s neighborhoods, we continue to hear the same thing. THIS is yet another instance of City Planning “cherry picking” portions of the UDO to suit their needs. This is simply WRONG. Planning for our city should be based upon adherence to what is written in the UDO and not upon arbritrary decisions - by individuals – about what should or should not be considered.
Mr Medlin has said that our “situation” has pointed to issues with the UDO as they relate to CN zoning and that a committee has been formed to look at this in order to “prevent this type of occurrence in the future.” We appreciate this, but the UDO currently ALREADY contains the Intent statement provision that should NOW prevent this occurrence.
WE WILL CONTINUE WITH OUR APPEAL THIS COMING TUESDAY, OCTOBER 23, 8:30 AM AT 101 CITY HALL, 2ND FLOOR. Please attend if you are concerned about preserving our neighborhoods, enforcing fair adherence to zoning ordinances, and maintaining the integrity of the appeal process.