Attorney Questions ‘Due Process’
BLYTHEWOOD – The six- month verbal tussle between Town Council and Cobblestone Park developer D.R. Horton over the proposed rezoning of the neighborhood progressed to higher decibels at Monday evening’s Council meeting, D.R. Horton’s attorney, Kyle Dillard, told the Council, “I do have serious questions about due process and issues implicated by Council in proceeding to a vote (tonight).”
Dillard was referring to comments made by D.R. Horton engineer Tom Margle, who said earlier that the developer had been denied a request to be on the agenda for Council’s Jan. 15, 2015, work session where he felt communication could have been better and earlier facilitated prior to the Public Hearing, which was held Monday evening.
Councilman Bob Massa responded that “the agenda must be issued 24 hours prior to the meeting and the Town did not get D.R. Horton’s message that it wanted to be included until after the 24-hour period had begun. So because we don’t want to run afoul of the state law (making changes to the agenda), Council and the Mayor decided not to add you to the agenda.”
But later in the meeting, Councilman Bob Mangone said that, “Council was polled as to whether or not we would add D.R. Horton to the agenda because we have the right to add items to the agenda now. (The S.C. Supreme Court struck down the agenda requirement last June). But we felt that because of the sensitivity to the issue, that if we were to add that to the agenda of a work session that was held during the daytime, that would not be sufficient opportunity to give input. That is my understanding as to why you were not added to the agenda,” Mangone said.
Dillard said he also had concerns about why more Council members who live in Cobblestone were not required by the State Ethics Commission to recuse themselves from voting on the issue. Mayor J. Michael Ross and councilmen Tom Utroska and Mangone, three of the five-member Council, live in Cobblestone Park. Only the Mayor was advised by the Ethics Commission to recuse himself because he owns a lot in the section of the neighborhood D.R. Horton is proposing to be rezoned.
“Given my understanding of the interest that these residents (members of the Council) have and my understanding of the spirit of the statute, further consideration should be given to that issue,” Dillard continued. “A vote tonight would (have the) taint of a denial of due process. I remind Council that for zoning ordinances like any restrictions upon freeze of land or disfavor of law must be construed narrowly. Listening to the comments tonight, the only ones that have been made that are pertinent relate to density, which is being reduced (by the proposed ordinance), which is generally favored and to traffic, which is being reduced, which is generally favored.”
Dillard warned that there had been no comments made that would give Council a valid reason to vote against the proposed amendment.
Town Administrator Gary Parker interrupted Dillard to say, “There is no vote. This is first reading.”
Dillard said he was under the impression there would be a vote on the issue at the meeting. The agenda, in fact, listed “Consideration of Cobblestone PDD Amendment” as an action (vote) item. Dillard continued, saying, “All considerations vital to the question of zoning that have been raised at this hearing weigh completely in favor of accepting the proposed amendment.”
Two residents of Cobblestone Park, George Logan and Ed Skeffington, spoke to the issue of several lots near the neighborhood’s gated entrance that D.R. Horton proposed to zone R-4 to accommodate five model homes in place of the old tennis courts.
“We are dead set against model homes (in an area) where we all disburse during the day,” Logan said, lamenting that more residents had not attended the meeting. Logan also said he understood from an earlier neighborhood meeting with D.R. Horton representatives that the company said the proposed models in the R-4 section would not be built. He said he felt the implication was “never.”
Ross Oakley, an engineer with Thomas & Hutton, representing the developer, said the point made at the meeting “was to hold off on model homes for five to 10 years and then see if they are needed.”
Margle told the group, “Let me be clear that we are eliminating model homes from the R-4 area.”
Margle said that without the proposed rezoning, he didn’t know “how long D.R. Horton can continue to fund the deficit of the Home Owners Association with the clubs, common areas, open space and private roads. It’s a very large ticket.”
At one point, Parker spoke up to tell the speakers and Council that there would be discussion time during the meeting when he thought some of the questions and concerns regarding the zoning issue could be cleared up.
The sticking point with residents of Cobblestone was clearly two-fold: the R-4 zoning that would allow the developer to, at any time, build model homes in that area; and what they feared would be increased traffic resulting from additional homes built in the neighborhood, even though Michael Criss, Town Planner, explained that the new zoning proposed by D.R. Horton represented 506 fewer total dwelling units (1,666 to 1,160) in Cobblestone Park than are allowed under the current zoning. Oakley said that reduction in dwelling units would equate to 100 fewer vehicle trips per day.
In the end, Council members generally expressed opposition to the R-4 zoning. Massa and Mangone both said they would not favor a vote for the proposal unless D.R. Horton eliminated the R-4 zoning altogether. Councilman Eddie Baughman said he thought that if the R-4 zoning and model homes near the gated entrance were eliminated everyone would feel better about the proposed rezoning.
Utroska continued to hammer the traffic issue, saying he had in his possession a traffic study taken at Blythewood Road in the vicinity of Cobblestone Park that showed an increase from 7,000 vehicles per day (sometime in 2013) to 12,000 vehicles per day in October 2014. When asked by Margle to name who had conducted the study, Utroska would not reveal that information. When pressed further by Markle, Utroska agreed to share the study with him privately.
Council voted to defer the vote and send the matter back to the Planning Commission for further review. The Planning Commission had previously recommended it to Council for passage.
The proposed amendment is now on the agenda for discussion at the next Planning Commission meeting set for Monday, Feb., 2, at The Manor.
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