BRUNSWICK COUNTY — A Wilmington developer is taking Brunswick County and its planning board to court over a project that was denied to move forward in July.
READ MORE: Who should have development approval power in Brunswick? Staff assessing commissioner authority
Coastal Cornerstone Development, LLC requested approval of the planned development Sailor’s Haven, on 117.3 acres of land — owned by Diane Blackman and Wayne Chykirda. Zoned R-7500 medium density and Commercial Low Density zoning, it would feature 299 single-family units on land located off N.C. Highway 904 — Seaside Road SW near Sunset Beach.
But the planning board took issue with the single entrance and exit, as well as drainage of water from ditches onto nearby homes, and thus unanimously denied it.
“The Planning Board’s decision cited concerns of stormwater drainage in the proximity to the proposed homes in the PD as basis for the denial but did not provide a specific violation under the [unified development ordinance] 41,” the lawsuit claims.
The lawsuit detailed the developer’s application not only met the measures of the county’s UDO but also included exceptional design elements “to further mitigate any stormwater concerns.”
For instance, the developers were going to build stormwater ponds to a 100-year event and include additional buffering between wetlands and lots, with all lots to be located outside of a flood plain.
More recreational and open spaces were going to be included than what’s regulated by the county’s UDO, and additional buffers also were going to be installed between the Wyndfall subdivision and the new development.
Also, the density proposed was less than what is been currently allowed. R-7500 welcomes 5.8 units per acre, while CLD is 13.6. The planned development was going to consist of an overall density of 2.5 units per acre.
After analysis by the technical review committee, the planning staff at the county level recommended approval to the planning board. Comments from the county technical review committee did indicate the “site is located in Carolina Bay, which may present some drainage issues.” It noted the fix would come with a properly devised stormwater system correcting problems with poor drainage soils.
All development projects also have to follow state stormwater standards by law.
However, the complaint said the PD review was actually a quasi-judicial process and the board and public commenters failed to follow its procedures. Like a court hearing, there is sworn-in testimony during a quasi-judicial process, with only facts and evidence to be considered by the board. The complaint maintains the developer submitted “material evidence to support the PD, including testimony evidence by licensed professionals.”
According to the lawsuit, the planning board didn’t depend on factual, competent or substantive proof to deny the application. Rather, it executed its decision erroneously and unconstitutionally overstepped statutory authority.
“The denial of Coastal’s Application is arbitrary and capricious,” the lawsuit notes, adding the plan will “promote the efficient use of land by clustering houses and structures in a manner that will reduce the amount of infrastructure, including paved surfaces and utility easements, necessary for development.”
At the planning board meeting on Sept. 8, assistant county attorney Ryan King informed the board members of the lawsuit. King explained the developer sued the county and the board to “preserve their appeal rights” in order to have the board’s decision overturned.
Amy Schaeffer with Lee Kaess filed the complaint on Aug. 14, within the 30-day timeline allowed for developers to appeal decisions.
King said he could make a motion to dismiss it, but a court would have to order it.
The court can affirm the decision, reverse it, or remand it to the board for correction or other proceedings, even ordering the permit to be issued if the decision was not supported by substantial evidence.
King added the developer could also resubmit the application to the county rather than go through the courts. He informed the planning board at its meeting that the developer has been in contact with Marc Pages, deputy planning director of Brunswick County.
The lawsuit asks the Brunswick County Superior Court to reverse the decision and allow the applicant’s project to move forward, in accordance with Brunswick County’s UDO and applicable regulations. It also is asking the county to cover all of its lawyer fees and award any damages for the violations of their constitutional rights.
Port City Daily reached out to the planning board, the county and commissioners for a comment. Only the county responded by press: “Brunswick County is evaluating the appeal and has no further comment at this time.”
The county has asked for an extension through Oct. 18 to prepare its response, which was granted.
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