Tuesday, August 16, 2022

Upcoming vote will decide if City Council can meet privately with The Avenue developer

When The Avenue project is resubmitted, City Council members will be forbidden from meeting privately with the developer. But a new land development code amendment could radically change that.

Technically, The Avenue mixed-use development was withdrawn last year, but the developer has been working to move the project forward. (Port City Daily photo / COURTESY CARROLL COMPANIES)
Technically, The Avenue mixed-use development was withdrawn last year, but the developer has been working to move the project forward. (Port City Daily photo / COURTESY CARROLL COMPANIES)

WILMINGTON – The controversial development known as The Avenue was withdrawn last year after traffic concerns stalled its progress through the city’s Planning Department. But that hasn’t stopped developer Roy Carroll from working to move the project forward.

In early October 2017, The Carroll Companies withdrew its official request to rezone a trailer park on Military Cutoff in order to build a 44-acre mixed-use development. The project caused concern for Wilmington’s planning staff because it threatened to further clog Military Cutoff, which is already significantly over capacity and rated “F” by the NCDOT.

However, several weeks later, attorney Michael Lee – who had taken over as a representative for the project – was meeting with city staff, showing a video of proposed roadway improvements.

More recently, it seems Roy Carroll – founder and CEO of The Carroll Companies – has tried the personal touch. In early February, Carroll and local developer Livian Jones invited members of City Council to one-on-one meetings about proposed traffic improvements, although The Carroll Companies has not officially re-submitted plans for The Avenue.

Meetings are allowed, for now

Because there no official plans on file, nothing prevents City Council members from meeting with Carroll – but that could change once plans are officially filed.

“We’re often asked to meet with developers – it’s part of our jobs, to be informed about new projects. As long as we’re not meeting with four of us (a quorum) … however, with a SUP (Special Use Permit) that’s not allowed,” Councilman Kevin O’Grady said.

O’Grady, who described the meeting with Carroll as a “routine update,” said that when The Avenue is officially re-submitted there could be considerable restrictions on such meetings.

Because part of the project plan for The Avenue calls for extending the height limits for five buildings to 75 feet, The Carroll Companies initially applied for a Special Use Permit. According to O’Grady, when a developer requests this kind of permit, City Council members are restricted from meeting with the developers, taking input from city staff, or even researching the project on their own.

“The ethics course was had last year, the restrictions were so tight we were told we shouldn’t even look at Google maps,” O’Grady said.

The idea, O’Grady said, is to limit City Council’s decision on a project to the sworn testimony given during a SUP public hearing.

“The SUP is a higher standard. It doesn’t allow us to follow political influences.”

— city CouncilMan Kevin O’Grady

“No strict limits on individual conversations”

Currently, an SUP is the only way Carroll’s project could go higher than 45 feet, a crucial part of The Avenue.

However, an amendment to the city’s land development code could change that. The proposed change – to City Code Chapter 18, Sections 18-204 UMX (urban mixed-use) – would allow developers to request a height increase through a development agreement with the city instead of a SUP.

So, what’s the difference between a SUP and a development agreement?

According to Assistant Planning Director Ron Satterfield, a SUP has restrictions on who can speak during a hearing; similar to a courtroom, only those with legal standing can give sworn testimony or present evidence. According to Satterfield, a development agreement is more transparent and “provided more flexibility for public input.”

“Wouldn’t it be nice if at least some of this process could be informal, not requiring witnesses under oath and subject to cross-examination, with no strict limits on individual conversations along the way?”

— Assistant Planning Director Ron Satterfield

In presenting the amendment to City Council, Satterfield quoted University of North Carolina School of Government Professor David Owens in his presentation. The quote addresses the restrictions placed on all stakeholders – including the public – when a developer pursues a SUP, and extolls the benefits of the flexibility and informality of a development agreement.

“Wouldn’t it be nice if local governments, developers, and neighbors could sit together, talk through controversial large development proposals, and work to reach consensus about what would be a good project for all concerned? Wouldn’t it be nice if at least some of this process could be informal, not requiring witnesses under oath and subject to cross-examination, with no strict limits on individual conversations along the way? And wouldn’t it be nice, should that lead to consensus, that an effective tool would be available to implement that agreement, something everyone could rely on over time? It would be nice and the tool does now exist in North Carolina,” Satterfield said, quoting Owens.

“That tool is a development agreement,” Satterfield added.

Concerns over development agreements

If the amendment were to pass, The Carroll Companies would likely pursue a development agreement, and City Council members would have no restrictions on meeting with developers.

“I am not aware of any conspiracies with regard to Mr. Carroll or this project.  I see no problem with him updating council on these key issues.”

— Councilman neil Anderson

O’Grady said he saw the advantages of that development agreements and pointed to several recent occasions where negotiations over projects were needlessly bogged down by the heightened scrutiny and formality of the SUP. However, O’Grady also expressed concern that a development agreement could allow a project to be developed “behind closed doors” – out of the public eye.

“When a development agreement reaches council, it’s already been negotiated. The first time the public hears about it, it’s already in some sense been decided. It’s made it all the way to its final version before people hear about it,” O’Grady said. “If you want to use development agreements to get around having the judicial qualifications, you ought to have a measure for public input.”

City Councilman Neil Anderson said he agreed with O’Grady’s call for more transparency in development agreements, but said he respected “the developer’s perspective” on the process. Anderson considered, for example, multiple developers competing along the same corridor.

“The developer does not want to fully disclose their plans publicly early on in the process. This is not to hide anything from the public, rather it is due to competition in the marketplace,” Anderson said, adding that developers might be courting similar tenants, or vying for limited allowable traffic flow.

Anderson said he saw no problem with Carroll’s private meetings with City Council.

“I was out of town on business and was unable to meet with Mr. Carroll when he was in town recently to brief council on his meetings with surrounding neighborhoods, connectivity around his proposed development, and infrastructure improvements along Military Cutoff,” Anderson said. “This development, especially the Westin Hotel, would be a huge amenity/attraction for our city should Mr. Carroll be able to work through the challenges involved with making this project work.  His neighbors, street/ped connectivity, and traffic improvements on Military Cutoff are the keys to whether this project ever happens.  I am less concerned with how much press a candidate for state office can generate for themself by being vocal about every challenging local issue.  I am not aware of any conspiracies with regard to Mr. Carroll or this project.  I see no problem with him updating council on these key issues.”

Anderson was referring to Harper Peterson, candidate for State Senate, who addressed council at its most recent meeting, voicing concerns that the Land Use Development amendment was “tailor-made” for The Avenue.

Peterson asked why the amendment wasn’t written to apply to all developments, instead of narrowly focusing on the height requirement, something which currently seems to apply only to The Avenue.

Peterson also asked council members if they were “negotiating presently with the applicant from The Avenue.” President Pro-Tem Margaret Haynes said that was not happening.

What might a development agreement include?

Haynes said Carroll’s presentation allayed many of her concerns about traffic.

“It’s a fabulous video – it moves north along Military Cutoff, and it’s in split screen, showing the way things are now and how they would be after the traffic improvements Mr. Carroll is willing to make,” Haynes said. “It’s a beautiful project, and (Carroll)’s been working hard, because accommodating the traffic is the only way this project is going forward.”

Haynes added that Carroll had also met with representatives from the Landfall development, who would be affected by the increased traffic flow. According to Haynes, traffic improvements could allow improved access to the Landfall development to mitigate the increased traffic along the current access points.

“He’s been able to get Landfall to be more accepting, and addressed some of their traffic concerns for Military Cutoff, in terms of providing (roadway) access so they don’t go out into it,” Haynes said.

Haynes said she believed Carroll would pursue a development agreement – though that won’t technically be possible unless the land development code amendment is passed. She said that agreement would hopefully include a legal provision tying certificate of occupancy or some other mechanism to Carroll’s proposed road improvements.

What’s next?

O’Grady was noncommittal about his thoughts on The Avenue, while was Haynes seemed in favor of it and Anderson said he would wait and see how Carroll remedied certain concerns including connectivity. Council members Charlie Rivenbark, Paul Lawler and Clifford Barnett did not respond to requests for comment about their meetings with Carroll. For now, it remains unclear how City Council stands on the project.

However, Roy Carroll, who did not comment on his recent meetings with City Council, said in a recent interview that he hopes to resubmit The Avenue sooner, rather than later. The future home of the project will have to be rezoned, which is a separate issue from the SUP or development agreement.

However, because much of The Carroll Companies plans for The Avenue, including the Westin Hotel, depend upon increasing the allowable height, the next phase of the project will depend on what happens with the land development code amendment. The city’s Planning Commission approved the amendment, but City Council postponed a final vote until its March 20 meeting.

According to spokeswoman Malissa Talbert, “Council directed us to look at the development agreement process and come up with some ideas for engaging the public sooner in the process. Staff is doing that now and will have some options for Council to consider at the March 20 meeting.”


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