Wednesday, February 8, 2023

County Commissioners put brakes on 30-acre Ogden mixed-use project for 90 days

After a nearly two-hour discussion, and a failed motion to deny the project, County Commissioners along with the developer agreed to put the topic on hold for 90 days to gather more information.

The request for a special use permit has been tabled for 90 days for a mixed use development off Lendire Road in Ogden (Port City Daily/Michael Praats)
The request for a special use permit has been tabled for 90 days for a mixed-use development off Lendire Road in Ogden. (Port City Daily/Michael Praats)

NEW HANOVER COUNTY — Plans for a large mixed-use development in Ogden have been put on hold, but only temporarily.

The New Hanover County Board of Commissioners discussed a proposed special use permit for a 15-acre parcel located off Lendire Road for nearly two hours on Monday ultimately voting to table the topic for 90 days before taking a vote.

The project has been unpopular among residents in the Ogden area due to concerns of flooding, traffic, and overall infrastructure.

Despite the backlash to the development commissioners were reluctant to vote against the request for the special use permit. That is in part because of the nature of a special use permit hearing.

Related: Quasi-judicial, fully confusing: Understanding special-use permits in Wilmington

Special use permits are a tool used by the county (as well as municipalities) that allow projects that would normally not be permitted permission, but with specific conditions.

Special-use permit requests are considered quasi-judicial in nature, effectively turning the county commissioners’ meeting into a courtroom. Anyone wishing to speak in favor or against the request must be sworn in and can only speak on four different points:

  1. The use will not materially endanger the public health or safety if located where proposed and approved;
  2. The use meets all required conditions and specifications of the Zoning Ordinance;
  3. The use will not substantially injure the value of adjoining or abutting property, or that the use is a public necessity;
  4. The location and character of the use if developed according to the plan as submitted and approved will be in harmony with the area in which it is to be located and in general conformity with the County’s adopted plans for growth and development.

Furthermore, residents opposed to the project would have to provide specific evidence for their arguments, not just opine. This makes it significantly more difficult to argue against a special use permit.

Despite the significant opposition to the project from residents, many of the residents who spoke during the hearing were not asking for an outright prohibition of the project, instead, a delay until infrastructure could be improved.

Commissioner opinions

The project has been discussed at length during Planning Board meetings and reported on previously. It would consist of nearly 300 apartments along with office/retail space off Lendire Road.

Commissioner Rob Zapple voiced concern with the fact the project’s traffic impact analysis (TIA) did not take into account the closing of Torchwood Boulevard and the extension of Lendire Road.

Prior to the North Carolina Department of Transportation (NCDOT) closing Torchwood, Lendire Road ended abruptly. But with the closing of Torchwood for culvert construction and the installation of drainage lines, the NCDOT took over Lendire Road and extended it, creating a new cut-through from the residential areas to Market Street.

Zapple actually made a motion to deny the special use permit, however, he failed to gain a second to his motion. But Zapple’s failed motion to deny the project did not mean there was any support for it either.

Commissioner Jonathan Barfield asked the board after Zapple’s motion failed to gain support if anyone would like to make a motion to approve the request — nobody felt so inclined.

With a board at a standstill, Barfield asked for a motion to table the request until ‘infrastructure is in place,’ Zapple made that motion and Commissioner Julia Olson-Boseman seconded it, to the applause of residents in the crowd.

But that motion was short-lived.

Because of the nature of a special use permit being quasi-judicial the board’s decision is not always the final outcome. Often times, if a project is denied the applicant can then appeal it in court.

For example, in Carolina Beach, the granted of a conditional use permit to a developer to construct the Publix grocery store was appealed for two years by neighboring Harris Teeter. A state appeals court handed down its opinion siding with the town and Publix earlier this month.

Related: State appellate court rules in favor of Carolina Beach and Publix in two-year Harris Teeter debate

Commissioner Woody White questioned the motion to indefinitely table the project until the infrastructure was in place, asking County Attorney Wanda Copley her opinion of the motion and whether or not it could be appealed in court.

Copley did think it could be challenged and a court could require the board to make a decision to either approve or deny the request.

The board and the applicant went back and forth on the request to table the topic ultimately agreeing on three months or 90 days. The additional time will allow the developer, Tribute Properties, to bring forward any more information regarding the improvement of Lendire Road as well as addressing flooding concerns and stormwater utilities.


 

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