Special use permit defeated on 3-2 vote
Graham’s city council spent a contentious two hours Tuesday night hearing a developer’s request for one change in plans that had been approved in 2021 for a new subdivision off Rogers Road.
The original plans, as submitted and approved in 2021, showed three connections to existing streets in an adjacent subdivision – Palmer Drive, Hanson Lane, and Little Creek Drive.
Graham’s and most cities’ philosophy is to have developers “stub out” street connections that will ultimately be used by future developers who undertake a subdivision on adjacent property who will open up the stubs to provide “connectivity” to existing roadways.
The developer, Windsor Homes of Greensboro, wanted permission to close one of its three previously-planned connections – to Hanson Lane – arguing that the steep grade would be unsafe.
The developer’s attorney, Amanda Hodierne, got support for that position from Graham’s city engineer, Josh Johnson, and the city’s public works director, Burke Robertson, both of whom said they, too, had concluded that the grade for the contemplated connection to Hanson Lane was too steep.
Johnson explained that Graham seeks to have grades of 8 percent or less, but the Hanson Lane grade would be more than 10 percent. Robertson said that trash or other utility trucks might not be able to stop when going downhill, especially in certain weather conditions such as snow or ice.
Special requirements for special use permits
The “special use permit” sought by Windsor is a procedure with very much tighter standards than for most typical rezoning requests heard by the city council.
First, all special use permits require a “quasi-judicial” public hearing, which requires that both the developer’s witnesses and others must be sworn in. The city council acts as a judge and jury, assessing the credibility and testimony of the witnesses.
Normally, opponents, such as nearby residents, are allowed to speak, although their testimony is often disregarded – in Graham and elsewhere – if it is regarded as being merely “opinion,” rather than fact-based.
In this particular case, however, Graham city attorney Bryan Coleman ruled that any opposing witnesses must be able to meet an even higher standard – i.e., to show “particular damages” that would affect them adversely, more than the general public at large.
Two residents who sought to speak against the developer’s special use proposal – Peter Murphy and Charlie Smith – were ruled ineligible to speak by Coleman.
The residents often tried to keep talking as Coleman said they must stop, and Hodierne repeatedly voiced objections to their continuing to talk.
Coleman had explained that the city council could determine that a particular witness could be allowed to speak if the council ruled that they had such a “particular interest.”
Mayor Jennifer Talley made a motion to allow Murphy, and later Smith, to speak, but her motions were defeated on two separate 3-2 votes.
On each, she and councilman Joey Parsons were outvoted, twice, by mayor pro tem Ricky Hall and council members Bobby Chin and Bonnie Whitaker, who said each resident did not meet a definition that they would be eligible, ruling instead that they did not have “particular damages.”
One resident stormed out of the council chambers before the council could vote on his eligibility, and murmurs, catcalls, and vocal objections throughout the crowd in attendance made clear residents were irritated that “their side” opposing the project could not be heard.
Hodierne presented expert witnesses, including the two city employees who had attended several technical review committee (TRC) meetings that considered Windsor’s proposed revisions.
While some of the company’s changes had been approved at the staff level, the one issue for the council’s consideration, she emphasized repeatedly, was the proposed closing of Hanson Lane.
She presented a traffic engineer who had done the original 2021 traffic study of the proposed impact. There are 109 single-family homes; the number of townhouses was reduced, from 70 to 68, by the elimination of the Hanson Lane connection.
The traffic engineer insisted that the closing of the one connection “does not change the traffic analysis” from 2021, which had been accepted by the city council.
One issue became increasingly clear. Talley, then a regular council member in 2021, had been the sole opponent of the original project, arguing as she had on several occasions over the past several years that Graham should not approve residential subdivision projects that she deemed “too dense,” and in particular “more dense” than then-existing nearby or adjacent neighborhoods.
She had often been supported by councilman, now mayor pro tem, Ricky Hall, but in 2021 Hall had voted in favor of the Windsor development.
On several occasions, Talley attempted to reintroduce some of those earlier objections, that the roads in the planned development are too narrow, that on-street parking should not be allowed, and that there were not enough designated parking spaces for residents’ cars.
[Story continues below photos.]
PATCHING WILDWOOD LANE FROM CONSTRUCTION TRAFFIC DAMAGE
One issue that has arisen about this same development several months ago was damage done to Graham city streets, specifically Wildwood Lane, allegedly from construction traffic going into the Windsor development. Here are photos a few of more than a half dozen patches made by the city, which Windsor agreed to pay for.
Each time, Hodierne would attempt to redirect the conversation and focus to what she kept insisting was the “one issue” for the council to determine – i.e., the proposed closing of Hanson Lane.
She insisted that the special use permit being requested was “very limited” in order to allow the “surgical removal” of that one connection.
After about two hours, when the council had finished hearing from Hodierne and her witnesses, and finished ruling out of order the other residents who had attempted to speak, the council turned to the actual consideration of the special use permit.
Chin insisted that the council should not “second guess” the previous council that had approved the original project, saying the current council “can’t undo” the earlier parameters of the subdivision.
The tide began to turn when council member Whitaker, who was not on the council at the time, referred to the fact that “she hated that it had been approved,” referring to it as a “monstrosity.”
Whitaker also noted that the developer “didn’t offer anything in return” for the proposed change.
Parsons said the council was in “quite a pickle,” saying that the overall request was like “trying to fit a square peg in a round hole.” But Parsons acknowledged that the planned Hanson Lane connection just “can’t be built.” At the same time, he said that the likely consequence would be increased traffic on Palmer Drive.
Ultimately, Talley made a motion not to approve the requested special use permit. Her motion prevailed when Parsons and Whitaker voted with her; Hall and Chin voted against.
