NEW HANOVER COUNTY — The developers behind the 1,800-unit Hilton Bluffs development were able to resolve one of two appeals holding back the project Monday, though inadvertently stalled the other for an additional two months.
Appeals were filed earlier this spring to the New Hanover County Board of Adjustment regarding the county’s technical review committee’s decision to conditionally allow Copper Builders to proceed with the first phase of its subdivision.
The company’s goal is to build Hilton Bluffs’ 1,800 homes on 600 acres of a 4,000-acre tract known as Sledge Forest. This plan was pared down from the originally proposed 4,000 homes on 4,000 acres; now, Copper Builders has agreed to transfer 3,200 acres to the Coastal Land Trust for preservation, contingent on the county’s approval of its current plans.
READ MORE: 3K acres of Sledge Forest could be preserved, contingent on Hilton Bluffs development
Two appeals were filed in the wake of the TRC approval: one by Wooden Shoe and Marathon Colony residents, represented by attorney Grady Richardson, arguing against the proposed roadway access points through the two neighborhoods. The other appeal was filed by the Southern Environmental Law Center and is more focused on the ecological impact to Castle Hayne residents.
However, Copper Builders’ attorney Sam Franck proposed a settlement Sunday night, pertaining only to Richardson’s clients.
The board of adjustment allowed both parties to review the agreement for two hours Monday morning before commencing the hearing and unanimously approving the consent order presented. The board was also advised on the agreement and the hearings by outside counsel — Colin Tarrant, also a former New Hanover County Planning Board member.
In the order, Copper Builders agreed not to make roadway connections to any lots in the Wooden Shoe or Marathon Colony neighborhoods. Thus, the two proposed connections — one on Dekker Road and another with Tall Oaks Drive — will be removed from current site plans.
In exchange, Richardson’s clients agreed to drop their appeal before the board of adjustment; in effect, a separate lawsuit will also be withdrawn. The suit was filed in April by a group of Wooden Shoe and Marathon Colony residents against Copper Builders and some of their neighbors, due to the roadway connections allegedly breaking neighborhood covenants.
As first reported by Port City Daily last week, the proposed access points into the Wooden Shoe and Marathon Colony neighborhoods would use two residential lots. The lawsuit alleges by granting Copper Builders two easements, the property owners of the lots would be in violation of the neighborhoods’ restrictive covenants that require all lots to be used for residential purposes and prohibits “noxious or offensive trade or activity.”
Richardson called the settlement “positive” to Port City Daily and provided a statement:
“My clients’ TRC appeal and their lawsuit was never about trying to block Copper Builders from developing its property,” he wrote in an email. “My clients’ efforts were solely to protect their subdivisions’ boundaries and the sanctum of their way of life. This settlement fully preserves the integrity of my clients’ subdivision boundaries from any access of any kind from this proposed development and any intrusion into their subdivisions. The agreement also fully restores my clients to the position they were in before ever having to contact me to advocate for and to defend their property rights.”
Port City Daily asked Franck if Copper Builders would need to look elsewhere for roadway access points now that the Wooden Shoe and Marathon Colony connections were off the table.
“The details of our revised plan or revisions to our plan are not resolved yet,” he said.
The unknown details of the new plan remain the basis of the Southern Environmental Law Center’s request for a continuance in its appeal.
“If they’re going to submit a different plan for this very same development, how can you all hear an appeal that deals with the plan that they say they shall revise?” SELC attorney Susan Keelin told the board of adjustment.
The SELC’s appeal focuses on the ecological impacts on the Castle Hayne residents SELC is representing, rather than traffic and quality-of-life impacts of Richardson’s clients.
The appeal particularly takes issue with how the county calculated the “density bonuses” awarded to the project because Copper Builders is basing its plan on the full 1,800-acre tract — 1,200 of which is unbuildable wetlands. By counting wetlands as part of the buildable base, the SELC argues the county effectively allowed more homes to be approved on a smaller amount of developable land than the ordinance permits.
Under the new plan the overall density of the project could change if some homes are taken away to make room for new roadway access points. Thus, the plans discussed during any appeal hearing would be inaccurate.
The presence of the consent order created a conundrum for the board of adjustment. Technically, the plan and appeal before the board was valid and the BOA had the right to proceed on it. However, practically, if the plan was modified, it could change the arguments the SELC planned to make in the appeal.
Still, Copper Builders objected to a continuance; attorney Clint Cogburn, Franck’s colleague at Ward & Smith, pointed out the appeal hearing has been set for months and his team was ready to proceed.
“We believe that this is an attempt to continue to delay, to drag on this matter without any real legitimate basis,” he said. “From our perspective, they either need to withdraw or dismiss their appeal or proceed to the merits [of this case].”
Keelin countered: “We’re not trying to push it out — we’re trying to have an opportunity to know what we’re talking about.”
Deputy County Attorney Karen Richards was asked to weigh in on the matter as the county’s representative. Richards agreed with Keelin’s argument and added that hearing the appeal on Monday knowing a new plan is forthcoming could cause repetitiveness and conflicting outcomes.
Essentially, if the SELC or Copper Builders doesn’t like the outcome of the BOA hearing, either would have the right to appeal the county’s decision to New Hanover County Superior Court. Thus, one set of site plans could be heard in Superior Court, even as another set is submitted at the county-level. This would create two different cases for the same issue and could result in conflicting results.
In another scenario, the BOA could make a decision on the current appeal, but a new set of BOA members could make a conflicting decision on the new plans, should they also trigger an appeal. The BOA has a set number of board members, but alternates fill in for absences.
The board of adjustment also asked Richards if Copper Builders would need to restart the TRC process with a new plan or amend its current one.
“Any modifications that they’ve proposed and agreed to is a major modification that triggers a new TRC,” Richards said.
Copper Builders will submit updated site plans; the next submission deadline is Aug. 3 to be added to the TRC’s next meeting agenda for Sept. 2. Based on the TRC’s decision on the new plan, the SELC could file a new appeal.
However, Richardson confirmed his clients would not be able to appeal the new plan so long as it complies with the terms of the settlement agreement.
Much of the board’s discussion centered on how long to continue. It was originally suggested the appeal be heard before Dec. 8, but then the board determined it was possible the developer could submit new plans on a shorter timeline. If not, the SELC could request another continuance at the Sept. 22 meeting.
Until new plans are filed, the current appeal is set to be heard at the board of adjustment’s Sept 22 meeting. The board voted 4-1 vote, with Chair Caleb Rash dissenting, to allow the continuance.
“I understand the practical argument of wanting to continue because why review a plan once and then review it again differently? We kind of wasted our time the first go around,” Rash said. “But at the same time, there is, until this board overturns it, there is a pending, valid approval at the TRC.”
After the continuance vote, the board took up the stay on permitting. In April, the adjustment board granted a pause on permits involving land disturbance until a decision on the appeals were made. The board did not extend the stay, which means Copper Builders could technically submit permitting applications based on the TRC’s approval, though with an inaccurate site plan. Keelin said she did not think an extension of the stay would be necessary.
“They’re not going to follow the plan that has been conditionally approved; therefore, we don’t need to stay,” Keelin said. “We’re not worried about that.”
As of Monday, no local permits have been issued and the county has not received any permits from outside agencies.
[Ed. Note: This article has been updated to reflect Colin Tarrant is a former planning board member and the chair of the board is Caleb Rash. PCD regrets the error.]
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