Jun 012015

VSO_AvatarBack in February, the VSO and hundreds of thousands of other blogging sites were hacked and injected with spam bots. Exploiting security holes in a popular software plugin, a hacker was able to lace spam advertising throughout the website that houses the VSO.

Fortunately, I had backups for all the data lost or compromised and after many hours of work, I have finally restored the site to active use.

There are a few posts that I made during the 2014 election, I have not restored, I will have to comb through a few more backup sets to find them as well as the drafts of a number of posts I was working on prior to catastrophic hack.


 Posted by at 12:46 pm
Mar 312015

Last night (March 30, 2015), Wesley Chapel Mayor Brad Horvath held an town hall meeting before crowd 60+ citizens and the media to discuss from his perspective, the issues surrounding the de-annexation petitions and its current status.

Town Hall Meeting with Mayor Brad Horvath

Town Hall Meeting with Mayor Brad Horvath

It wasn’t until early January 2015, that the “de-annexation” petitions from Wesley Chapel property owners came to public light. Mayor Horvath related in his comments last night, that he became aware of the petitions when Sen. Tucker called him in May of 2014. Horvath stated that none of the petitioners have contacted any member of the town council, (including a councilperson Becky Plyler, who recently filed her own petition to de-annex), prior or since Sen. Tucker’s initial call, to complain of an issue that drove them to seek to de-annex. According to Mr. Horvath, Sen. Tucker at the time, did not request that the town do anything, but he (Sen. Tucker) had yet to decide how he would handle the petitions. It wasn’t until January that list of petitioners was actually presented to the town.

In subsequent meetings before the Town Council, petitioners did come forward and a few offered their reasoning: primarily the limited types development permitted under Wesley Chapel zoning.

In early March, Sen, Tucker filed a bill (S214 -Link) to de-annex approximately 71 parcels/900 acres from the heart of Wesley Chapel.

Map prepared by Sondra Bradford

Petitioner Properties marked in red (Map prepared by Sondra Bradford)

As I mentioned above, the crux of the issue is zoning, namely Wesley Chapel’s R40, one house per acre zoning, which in the case of some of the de-annexation petitioners prevents them from maximizing the value of their land. In reality, the ringleaders of the de-annexation petition would prefer to be subject to County zoning rules which are much more lucrative for developers, especially in light of the recent decision by County Commissioners that permitted high density subdivisions near the airport. (Readers should put these high density subdivisions in context with school overcrowding and the draconian redistricting experience last year.)

Government should not be in the business of augmenting the value of property to the benefit of “connected” landowners and to the detriment of the remaining citizens and the future of the town.

A little history..

Many of the small towns in Union County were created from the same fear of being annexed by a bigger town. The Town of Weddington and the Village of Marvin were incorporated to prevent Charlotte encroachment, while Wesley Chapel was concerned about Indian Trail’s involuntary annexation intentions.

Excerpt concerning the formation of Wesley Chapel from Bill Lee's History of Wesley Chapel.

An excerpt relating to the formation of Wesley Chapel from Bill Lee’s Book, the History of Wesley Chapel.

Motivating the town

In the meantime, Mayor Horvath, most of the council-members and a growing number of Wesley Chapel citizens are working to forestall the de-annexation bill by any means they can.

Clearly, the next stage are largely dependent on the actions of Senator Tucker and by extension, Representative Craig Horn. Both State officials have stated that their only motivation is find a way to solve the problem locally, but they feel the town needs to be more accommodating and communicative with the petitioners.

The other side of the coin

In my discussions with Sen. Tucker today, he justifies his action with the argument that he is just representing his constituents, who feel the town zoning is too narrow and restrictive. Paraphrasing Sen. Tucker, straight R40 zoning doesn’t offer landowners and perspective buyers sufficient latitude. In response to my challenge concerning the coercive nature of the suggested resolution via new zoning ordinances, Sen. Tucker responded by saying that he is not asking the town to do anything that they weren’t either already working on or could accommodate without violating their base R40 zoning. Both his points are true.

Senator Tucker stated that because of the rules of the Senate that he would be moving the bill out the Rules committee before the cross-over deadline at the end of the April.

How do you like them apples?

So if I understand correctly, the town is being “told” that if they create a couple new zoning ordinances (Age-restricted, “over 55″ housing and clustered subdivisions), that would satisfy the demands of both our elected state officials and the disgruntled petitioners.

STOP and think about that a minute.

It so happens that the planning board of Wesley Chapel has been working on an “Over 55 – restricted housing subdivision ordinance for some time and recently sent their recommendations to the Council for a public hearing and vote.

Typically, this is how new ordinances are developed. It’s not complicated, it doesn’t take heavy-handed manipulation from Raleigh. Ordinances are developed based on needs as realized by the planning board, elected council members or via text amendments requested by citizens.

The de-annexation effort would have fallen flat on its face were it not for the support Senator Tucker and the way the General Assembly members typically support the “Local” bills of other members. Local bills don’t require the Governors signature to be come law, so there are no “veto” concerns, either.

Whats the worse that can happen?

If all the parcels on the Senator Tuckers bill were de-annexed, how would that really effect Wesley Chapel?

Initially, Wesley Chapel will suffer a revenue loss, both from a reduction in ad valorem property taxes, utility franchise fees it collects and sales tax.

In the long term, the damage will be to the continuity of the town’s land use planning and master plan, falling prey to the political winds that influence County Commissioner zoning decisions. All those 900 plus acres would be figurative donut holes in Wesley Chapel’s land use map. Wesley Chapels tax paying residents would have very little influence in what the county could or would permit on those parcels.

A great example of what could happen has already happened in Wesley Chapel!

Have you seen that monstrosity of electric substation across from the Stonegate subdivision? Well the power company first applied to the town for a permit to build a larger substation on the other corner opposite the garage property. After days of testimony by the utility and opposition, the Wesley Chapel Council turned down the permit due to the failure of the substation plans to meet the findings of fact under a “quasi-judical” permitting procedure.

Much the surprise of the Town Council and Stonegate homeowners, the power company purchased the lot on the other side of the road and announced plans to build the substation.

You see the lot on the other side was a “donut-hole”, under Union County zoning, and a use by right for a power substation, meaning the power company only had to file a site plan with the county and obtain a zoning permit — a simple matter.

Regardless of your viewpoint on the value or need of a substation, the will of the local community was circumvented.

There are many instances of use by right in Union County zoning that bypass the local community and don’t require legislative decisions to permit.

What should the town do?

Simply put, considering the downside — whatever Sen. Tucker and Representative Horn say to do.

 Posted by at 8:15 pm
Apr 022014

spinHave you ever had one of those days where you feel like you’re in a time warp? You know déjà vu all over again and again?

Stony Rushing is running for County Commissioner, after eight years of relative obscurity. Oh, he did pop-up in the 2008 Commissioner race, not as a candidate, but as the lead in a smear campaign for then (and now) Commissioner candidate Tracy Kuehler. That backfired and Tracy was elected despite his efforts.

So here we are in 2014 and what is amazing, at least to me is that we are starting right where we left off, eight years ago.

Once again the idea of an APFO (Adequate Public Facilities Ordinance) has risen from the ashes of a court of appeals decision that left Union County unprotected from the excesses of the developer controlled towns like Waxhaw and Indian Trail, who historically has been epicenter of  hyper-growth. Meanwhile the County has facilitated more growth by rescinding the water allocation policy and buying more water access from our neighboring counties.

Stony was and will likely be supported by the Home Builders and Developers as he was in past elections. The Home Builders didn’t like the APFO so Stony didn’t (and once again doesn’t) like the APFO. In fact, Stony has made it the lead issue of his 2014 campaign, once again characterizing has unconstitutional in North Carolina, in what is now almost generic, Stony only tells half the story.

Here is the simple fact, Union County’s APFO was overturned in NC Appeals Court for only one reason. Impact Fees! In the fall of 2006, County Commissioners voted 3-2 (Stony against) in a now famous (fix’n to get a whipping) meeting, now steeped in Union County lore. This original AFPO as presented by the Union County APFO Task Force DID NOT include mitigation fees of any kind and was eventually its undoing.

Union County still needs an APFO to prevent the building boom from once again overwhelming our school facilities.

The following article is from NC School of Government professor Richard Ducker points out that court objected to the Voluntary Mitigation Fees (as impact fees) and suggested that a straight APFO would be within the state statutes.

Coates’ Canons: Are Adequate-Public-Facility Ordinances Adequate?

With respect to many of the adequate-public-facility ordinances adopted by North Carolina counties affecting public schools the answer is apparently no. On December 8, 2009, the North Carolina Court of Appeals in Union Land Owners Ass’n v. County of Union, struck down Union County’s high-profile public-school adequate-public-facility ordinance (APFO) on grounds that the ordinance was not based on appropriate state enabling authority. Similar ordinances have been or are currently enforced in the counties of Cabarrus, Lincoln, Stanly, Franklin, and Currituck, all rapidly growing counties on the fringe of metropolitan areas. Are local governments now prevented from taking the adequacy of public facilities into account in making future zoning and land subdivision decisions?

Planners have long advocated directing growth into areas that currently enjoy excess public facility capacity or that will be served by public facilities concurrently with the build-out and occupancy of the development (hence the term “concurrency”). Generally the idea with respect to public schools is that if a proposed development’s impact will not overburden the capacity of schools serving the development, the project is approved. If the impact will overburden the system, the project is denied approval. What distinguished the Union County ordinance were regulations that allowed the county to approve a development subject to certain conditions intended to mitigate the impact of a project on school capacity. Possible conditions included: (1) deferring initiation of development for five years; (2) postponing development until school capacity became available; (3) scheduling the development to match the rate of school capacity growth; (4) redesigning the proposed development to reduce the impact on school capacity; (5) requesting minor plat approval so as to exempt the proposed project from the other ordinance requirements; (6) offsetting any excess impact on school capacity resulting from the proposed development by providing a voluntary mitigation fee (VMF) to the county to build or expand schools; and (7) constructing school facilities to offset the capacity deficiency. The approval condition that apparently attracted the most attention from the court was the “voluntary mitigation fee.”

The court was clearly influenced by the case of Durham Land Owners Ass’n v. County of Durham, 177 N.C. App. 629, 630 S.E.2d 200 (2006), which invalidated Durham County’s public school impact fee for lack of statutory authorization. The court also noted the fact that Union County had sought but failed to obtain local legislation authorizing school impact fees in 1998, 2000, and 2006. The APFO may have seemed like a back-door attempt by the county to gain revenues from developers for schools despite the absence of express authority.

The Court of Appeals examined the zoning and land subdivision control enabling statutes. G.S. 153A-341 allows counties to use zoning “to facilitate the efficient and adequate provision of . . . schools . . . and other public requirements.” G.S. 153A-331 allows county subdivision ordinances to “provide for the orderly growth and development of the county . . . in a manner that will avoid congestion and overcrowding and will create conditions that substantially promote public health safety, and the general welfare.” The broad reach of this language made clear that the problem in the eyes of the court was not necessarily the purpose of APFO regulations; instead the difficulty apparently was the means employed by Union County in achieving these purposes. The court found no zoning or land subdivision authority to “impose fees or similar devices upon developers of new construction.” If the use of the VMF was a key tool implementing the ordinance, perhaps the outcome of the Union County case should come as no surprise.

How would a “pure” APFO ordinance fare that would link development approval to public facility adequacy but without a “mitigation” fee option? Discretionary standards involving public facility adequacy are sometimes used by North Carolina local government in ordinary land subdivision plat approvals and decisions involving special-use and conditional-use permits; financial mitigation measures are not involved. Perhaps an APFO system more clearly established to manage the pace of growth rather than to assign public facility costs to developers would have much better chance at passing the legal test.

What should give local government attorneys and planners pause, however, is the Spartan nature of the analysis of the Court of Appeals. The opinion includes little mention of the many North Carolina cases interpreting our zoning and land subdivision control authority. No mention is made of the case law from other states in which similar APFO provisions were upheld, a matter analyzed in amicus briefs. No reference is made to the difficult planning circumstances in which Union County has found itself during the last decade. There is no apparent recognition that inability to slow down the pace of development in rapid-growth counties to coincide with the pace of school construction may result in counties using other defensible measures to slow or halt residential development. There is little express guidance about what it would take to fashion a legally defensible alternative regulatory system.

There is another shoe that may drop that is not evident from a reading of the opinion. In the Durham County impact–fee case of 2006 the Court of Appeals ordered the illegally collected fees to be refunded, but found no authority to enable developers to collect interest on the amounts due. In 2007 the General Assembly enacted G.S. 160A-363(e) and G.S. 153A-324(b), both of which provide that if a development fee or tax, or even a monetary “contribution,” is found to be unauthorized, then the local government must return the collected taxes, fees, or contributions along with six percent (6%) annual interest. It appears that the legislation was adopted in anticipation of this very kind of Union County litigation.

On August 13, 2009, before the Union County decision was announced, a Cabarrus County superior court judge invalidated certain APFO provisions in Cabarrus County’s unified development ordinance on similar grounds. Cabarrus, Stanly, Lincoln, Franklin, and Currituck counties need to review their options and are trying to determine whether their APFO regulations can be reworked to conform with existing authority. The story also continues in Union County. The Union County Board of Commissioners voted on December 14, 2009, to petition the North Carolina Supreme Court to accept the case for discretionary review.

via Are Adequate-Public-Facility Ordinances Adequate? « Coates’ Canons.

 Posted by at 11:45 am