Rezoning Request Divides JCC Supes, Staff

By Desiree Parker Tuesday, July 13, 2010

At their Tuesday meeting James City County supervisors will be considering a rezoning application for a Colonial Heritage development, Deer Lake, which staff doesn’t support for a variety of reasons, and at least one supervisor already doesn’t like.

In 2001, supervisors approved plans for Colonial Heritage, a 2,000unit, gated and age-restricted community along Richmond Road. In 2004, owners the Lennar Corporation applied to rezone a portion of the property and also applied for a special use permit to put a 50-lot rural cluster outside the primary service area (PSA) – the boundary line where the county services like water and sewer “end” - on 221 acres of that property.  The current application is for a special use permit application and a Master Plan amendment along with another rezoning of 66 acres to mixed-use for the 50-lot cluster, with 90 acres set aside for conservation.

During the recent Comprehensive Plan update, a land use application change was submitted in order to get the PSA extended to cover the new Colonial Heritage areas. At the time, supervisors did not approve the request, leaving the Deer Lake parcel of Colonial Heritage as rural lands and outside the PSA.

The applicant offered several new proffers to sweeten the deal for the county, including the addition of the 90 acres of conservation space, adherence to a watershed plan for Yarmouth Creek, neighborhood recreation facilities and adherence to Parks and Recreation proffer guidelines, cash contributions, privately-maintained streets with maintenance fund, extra buffers and easements, and green building construction for all proposed 50 units, along with several others.

In May, planning commissioners voted 4-2 to recommend approval of the plan, but staff did not agree. According to the staff report, they consider the application to be contrary to the land use policies in the Comprehensive Plan, and they also feel that the PSA is a growth management tool and shouldn’t be compromised. They also point out the county proffers policy is violated because the applicant isn’t offering cash for schools.

The environment is also a concern for county staff. “While the proposed 90-acre conservation open space area provides a substantial contiguous amount of land for conservation, on balance, this feature with other aspects of the proposed design show no distinct environmental benefit compared to the rural cluster,” staff writes.

The 66 acres of land in question would have a density of 4.6 units per developable acre, which is much higher than what’s outlined in the Comprehensive Plan. Without the rezoning, many of the proposed units can’t be created.

Powhatan District Supervisor Jim Icenhour has come out swinging against the application ahead of the meeting, sending out an email to James City County Democrats that shares his thoughts on the issue.

“In approving the Comprehensive Plan last November, the Board of Supervisors reaffirmed the integrity of the PSA – with this parcel of rural land intentionally left outside the PSA,” he writes. He notes staff comments, and continues: “Strictly on the basis of the facts, this application should be denied as recommended by staff, but several disturbing factors complicate the matter.

“First, by a vote of 4 to 2 the Planning Commission recommended approval. Second, Lennar Corporation and its legal representatives know how to count to three - they would not be bringing this application forward if they did not believe they already have three affirmative votes in the bag. Third, since January 2008 the Board of Supervisors in deeply split votes has approved every residential rezoning request it has voted on – not one unit has been denied.

“Fourth, given the recent Courthouse Commons approval, the Board majority has demonstrated a strong tendency to ignore input from both staff and citizens.”

Another “highly irregular” aspect of the case has to do with a proffer of a conservation easement on another already-approved development on Jamestown Road, Powhatan Terrace, “which Lennar bought to use as a bargaining chip,” Icenhour says.

“Preventing suburban type development inside the PSA in exchange for allowing suburban type development on rural lands outside the PSA makes absolutely no sense,” he says, “but I don’t think Lennar would have made this proffer without an indication from some Board members that it would be acceptable. This proffer is bad public policy and has the appearance of vote buying on the part of the applicant.”

He argues that approving the application that was specifically denied during the comprehensive plan process will be “essentially repudiating” that process.

"We will no longer be able to effectively control growth because we will have opened up all rural lands for intense development with taxpayer subsidized utilities,” Icenhour writes.

“You have one opportunity to speak your mind on this application and that is this Tuesday night.  Wednesday morning may be too late.”

Chairman Jim Kennedy says he received a copy of Icenhour’s email Sunday. “I’m very troubled by this,” he says. “It has greatly upset me.”

Icenhour’s “baseless attack” on Republican board members, accusing them of selling votes, is one part of the email that offends Kennedy. Icenhour’s allegation that developers have paid for his votes “is categorically, across the board not true,” Kennedy says. He calls for Icenhour to prove his serious allegations of illegal action before publicly sharing them.

He feels that there are several contradictions in Icenhour’s email. Icenhour accuses Republicans of deciding which way they’ll vote before the meeting, yet “he’s done exactly what he’s alleging of others,” Kennedy says, by opposing the plan days before the hearing has begun.
Icenhour also cites lack of staff support for the case, though Kennedy points out Icenhour has disregarded staff opinion several times in the past, including at the last meeting in which supervisors considered a cell tower access road, and also with a recent decision on the Food Lion and CVS approved in Norge. In both cases, Kennedy points out, Icenhour also chose to vote contrary to staff opinion.

As for always voting together as a Republican block on issues, Kennedy says he often doesn’t vote with his fellow Republicans, but that Icenhour and John McGlennon, a fellow Democrat, have voted in opposition to one another twice in two years.

Kennedy also says that Icenhour has written similar emails in the past sharing his thoughts on political issues without ever calling Republican supervisors to discuss his concerns. “It’s odd about that,” Kennedy says. “In talking to my fellow Republicans about [this case], one is clearly a ‘no’ and one is on the fence… I don’t know where he’s coming across that it’s a done deal.”

As for the “highly irregular” proffers Icenhour questions regarding the case, Kennedy says that’s just the way the proffers system works – applicants need to figure out ways to offer deals that will gain approval of an application. He would prefer a different method be used, but the unusual proffer “was something the applicant felt they needed to gain approval.

“He is putting politics before policy,” Kennedy says. “We should ask these questions from the dais.”

The James City County Citizens’ Coalition also hopes the supervisors won’t approve the applications for many of the same reasons staff has stated, according to a statement released prior to the meeting. The J4Cs also cite the plan’s likely negative effects on the Powhatan Creek Watershed, a questionable fiscal impact, and issues with the county’s mixed use ordinance on top of concerns over violation of the school proffers and changing the PSA.