Wednesday, July 24, 2024

‘Check this epistle out:’ Councilman Rivenbark forwarded residents’ development concerns to business partner

Charlie Rivenbark made the motions to approve both requests by The Carroll Companies for The Avenue project, paving the way for the real estate firm he works for to sell or lease millions of dollars of commercial property. (Port City Daily photo | File)
A Wilmington City Council member has long dismissed concerns that his position at a prominent commercial real estate firm could pose a conflict of interest. Emails obtained by Port City Daily show he communicated with his business partner about a development change affecting the company. (Port City Daily photo | File)

WILMINGTON — A Wilmington City Council member has long dismissed concerns that his position at a prominent commercial real estate firm could pose a conflict of interest. Emails obtained by Port City Daily show he communicated with his business partner about a development change affecting the company.

READ MORE: Wilmington council to reconsider density allowances for legacy districts amid resistance

Last month, Wilmington City Council decided to delay final decision on a proposed zoning amendment after pushback from constituents. A public hearing on the proposal is on the agenda for the Tuesday council meeting, but city spokesperson Jerod Patterson said no action would be taken before a June 27 community meeting to address resident concerns.

Residents near the Autumn Hall development on Eastwood Road expressed concerns that the proposal — to revise the city’s land development code and remove density limits in legacy zoning districts, where Autumn Hall resides — would encourage overdevelopment, wetland degradation and increased flooding. 

In effect, the proposed LDC amendment would permit the legacy districts — or land zonings no longer used by the city — to use density bonuses. The bonus areas are involved in a points-based systems to increase density in exchange for environmentally efficient designs in watershed resource protection or conservation areas. Projects in all other districts are allowed to use them. 

As 1202 Eastwood Road is located in a legacy district, it would only be able to increase its project density if the amendment passes.

Council member Charlie Rivenbark is a senior vice president at Cape Fear Commercial. The firm’s development arm, Cape Fear Development, is behind the Autumn Hall project. It is a 236-acre mixed-use development on Eastwood Road anticipated to expand its commercial and residential space.

At the May 21 council meeting, Rivenbark dismissed residents’ concerns that his position with Cape Fear Commercial could pose a conflict of interest over the amendment decision. He said he didn’t “have anything to do with development or anything that Cape Fear Development does.”

Emails obtained by Port City Daily show Rivenbark forwarded at least eight resident comments about the amendment and Autumn Hall development to his business partner Mike Brown. Brown is a senior vice president at Cape Fear Commercial, a partner at Cape Fear Development, and the development manager for Autumn Hall. According to CFD’s site, Brown is “heavily involved in the project’s development through his role at both firms.”

In a May 20 email titled “Autumn Hall Rezoning,” resident Allison Denning said she was not opposed to further development of Autumn Hall, but requested to see development plans and an environmental study. She said storms have caused flooding and sewage overflow into nearby Bradley Creek.

“We have spent thousands on drainage to no avail as the creek is filled with sludge and debris,” she wrote. “We have requested assistance time and time again in the 32 years we have lived here, to no avail.”

Denning also requested Rivenbark recuse himself from voting on Autumn Hall-related issues due to his position at Cape Fear Commercial.

Rivenbark forwarded the message to Brown with a note: “Check this epistle out!!!!”

More specifically used to describe one of the letters adopted as books of the Bible’s  New Testament, an epistle is essentially a formal letter.

In another email, resident Howard Finger wrote to council expressing concerns that the Autumn Hall development could eliminate the Gary Shell Bike Trail. Rivenbark forwarded the email to Brown, writing: “This one beats all!!!!”

PCD reached out to Rivenbark to ask if he communicated with Cape Fear Commercial about other council matters that affect the company, if he forwarded emails to every developer about issues that could impact them, and if he thought it was appropriate to mock residents’ concerns in an email about a project managed by his business partner. The council member did not respond.

The North Carolina General Statute 160D-109(a) regarding conflicts of interest states: 

“A governing board member shall not vote on any zoning amendment if the landowner of a property subject to a rezoning petition or the applicant for a text amendment is a person with whom the member has a close familial, business, or other associational relationship.”

Rivenbark’s potential conflict of interest has been raised in the past. State Treasurer Dale Folwell cited Rivenbark’s position in his review of the city’s $70-million building purchase of the Thermo Fisher campus in June 2023. Cape Fear Commercial represented the seller.

Rivenbark said he would not financially benefit from the transaction and was advised by city staff not to recuse himself from the vote. However, Rivenbark recused himself from a later vote granting Cape Fear Commercial the leasing services contract for the city’s new building.

Council member Kevin Spears also brought up a potential conflict at an October 2022 meeting regarding Cape Fear Development’s 40-acre rezoning request to build 248 apartments on River Road. 

Attorney Sam Franck of Ward & Smith represented CFD and partner Mike Brown during the rezoning request to address stormwater and traffic concerns about the development.

Franck spoke at the May 21 hearing to support the legacy district amendment as a citizen but did not mention his ties to CFC or CFD. 

“As a citizen I’m absolutely in support of it,” he said. “I had the opportunity to review written comments submitted to the city leading up to this hearing that made significant references to some pending development proposal for the Autumn Hall development, apparently in connection with this proposed text amendment. I’m baffled by that. I don’t know what the connection would be.” 

Residents such as Kim Beller argue the amendment resulted from Cape Fear Commercial’s variance request to the city’s board of adjustments for the Autumn Hall area on 1202 Eastwood Road. 

Beller told Port City Daily in May that a city staff member informed her the Autumn Hall developers, after they continued their variance request to June 20, would not need to come back if council approved a proposed LDC amendment.

PCD asked Franck if a developer, council member, or staff member had informed him of the written comments and if he was providing legal representation for Autumn Hall developers or another firm that supported the amendment. The attorney did not respond by press.

City staff has maintained the legacy district amendment originated from staff’s desire to create equity between old and new districts — not via request from an outside party.  

To assuage community and council concerns, Associate Planner Brian Chambers reported the amendment would not expand development powers outside of what already exists in the code and defended staff’s stance that it would not increase flooding and runoff. 

“When we look at a rooftop that you can have one unit underneath that rooftop or you could have four units underneath that rooftop — we only care about the rooftop,” chief code enforcement officer Brian Renner explained. 

UNCW geologist Roger Shew demonstrated the issue was larger than the Autumn Hall development or the amendment itself. 

Shew argued the city’s density bonus point system was not the best method of handling development in vulnerable areas. He told PCD he met with community members about the issue and was preparing information for the June 27 community meeting planned with city staff. 

“We all understand development must occur,” Shew wrote in an email to PCD. “However, leaving sensitive, compound flood areas in their natural state will minimize flooding and ultimately decrease costs to the homeowners and to the city. Flooding is increasing w/ higher rainfall in the area but also with more rainy events as warm air holds more moisture. Designs for storms need to take this into consideration and one of the best ways to do that is to maintain more open space and buffers that allow for greater infiltration.”

He noted taller structures used in high density development may not directly increase buildings’ percentage of impervious coverage, but require more infrastructure and parking that can contribute to runoff. 

Because the Autumn Hall area is near the floodplain of Bradley Creek and Clear Run Creek, Shew explained, it is a compound flood zone requiring special consideration. He added residents have documentation of past flooding and advocated developers implement large buffer zones and minimize impervious surfaces.

UNCW biological oceanographer Larry Cahoon also shared concerns with PCD about development in the vicinity. He said filling wetlands in the area — a major claim residents lob against the Autumn Hall project — would require a permit from the U.S. Army Corps of Engineers, regardless of the amendment. However, he said residents’ increased stormwater concerns are legitimate. 

He argued density credits would “help a bit,” but are insufficient in addressing major rainfall, which occurs more often in coastal areas. He added drainage systems used to address stormwater, such as ponds, fail to retain runoff pollutants. Fecal coliform, for instance, has been found in high levels in the Bradley Creek watershed. 

“Bottom line is that the neighbors’ concerns are partially justified, but the details and fuzzy definitions here make it hard to sort out the proper remedies,” Cahoon said.

The city council was set to rehear the amendment Tuesday, though staff are requesting to continue the item to July, after it has a chance to gather more feedback from the community.


Tips or comments? Email journalist Peter Castagno at peter@localdailymedia.com.

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