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Property owners seek court appeal of N.C. 33 rezoning

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Land where the proposed neighborhood will be build off of NC-33 on April 20, 2018. (Molly Mathis/The Daily Reflector)

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By Ginger Livingston
The Daily Reflector

Thursday, July 12, 2018

More than a dozen homeowners are appealing a rezoning decision by the Pitt County Board of Commissioners that they said improperly allows suburban development in a rural setting.

The appeal was filed on July 5 on behalf of seven couples — two individuals and the respective homeowners associations of Beech Cove, Holly Ridge and Moss Bend subdivisions, each located about four miles east of Greenville on N.C. 33 East.

The appeal names Pitt County, Bill Clark Homes and property owner Umberto Fontana as defendants.

The property owners are protesting the development of Luke’s Landing, a 66.8-acre development located on 67.5 acres of land owned by Fontana. Bill Clark Homes wants to build a 145-lot development on the land.

The homeowners oppose the project because they believe the density of homes will create flooding problems and increase traffic congestion and the frequency of traffic accidents along N.C. 33.

They also believe the development’s density is not in keeping with the surrounding neighborhoods, which were developed under rural residential zoning standards and which, for the most part, feature larger lots.

Pitt County County Attorney Janis Gallagher “respectfully declined” to comment on the filing.

The county has the option of either answering the complaint or filing its own motion. Typically, a response is made within 30 days of the defendants being served the suit although a judge may grant an extension.

No court dates have been set at this time and no judge has been assigned to the case.

The Pitt County Board of Commissioners on May 7 voted 5-2 to rezone the property suburban residential, a designation that allows denser home development in rural areas if it is served by a municipal sewer service.

Commissioners Ann Floyd Huggins, Jimmy Garris, Glen Webb, Mark Owens Jr., Beth Ward and Mary Perkins-Williams voted for the rezoning request; Commissioners Tom Coulson and Charles Farley voted against the request and Commissioner Melvin McLawhorn was absent.

The vote came two weeks after more than 100 people attended a public hearing on the rezoning request with the majority against the project.

Since then, the county planning board — which in a split vote recommended denying the request — has given preliminary plat approval to the project which allows the developer to begin the review process.

The process consists of county permitting and engineering staff — along with representatives from various state and possibly federal agencies — reviewing the project and setting conditions and requirements for further development.

County staff then can give final plat approval, which allows the developers to start infrastructure construction, such as building roads, installing stormwater control devices and other requirements.

The county’s 2030 Comprehensive Land Use Plan states that suburban residential development is suitable for the area. This is the first time a developer sought the change.

The suit makes seven claims for relief, among them that the decision constituted illegal spot zoning, it did not comply with state statutes regulating planning and development, it did not comply with the county’s own zoning ordinance and it violated state and federal laws governing due process and equal protection.

The suit claims the commissioners’ decision allowed for spot zoning without establishing a reasonable basis for the change.

The suit states that surrounding properties are in rural residential and rural agricultural zoning and the suburban residential zoning allows for uses prohibited in those zones. It also notes that no other area in unincorporated Pitt County is zoned suburban residential.

The suit claims the land had no special features, compared to other properties, that justified the different zoning.

The suit states the board did not comply with state statutes for planning and regulation of development, listing multiple reasons including claims that the rezoning did not promote public health, safety and general welfare of the people, did not consider the character of the surrounding area and did not give an adequate description of why the change was consistent with the county comprehensive land-use plan.

The suit also claims the county did not consider if the entire range of uses allowed in suburban residential were suitable for the area and that the property should not have been treated differently than surrounding property.

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