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Letter gives details of potential legal claim

Regarding denial of rezoning for Clemmons apartment complex

By Jim Buice
For the Clemmons Courier

Just before the Clemmons Village Council rejected a proposed rezoning request for a multi-family apartment complex adjacent to the Kinnamon Village shopping center off U.S. 158 in its previous meeting, Mayor John Wait received what he called a lengthy demand letter from the petitioner’s attorney, stating that night “you either need to approve this, or you’re going to get sued.”

And as Monday night’s meeting opened at village hall, the one public comment came in an email from Brenda Smith, 259 Harper Road, Clemmons, who wanted to address “transparency in village council actions” and attached the letter referenced above and multiple pages of exhibits.

In the meeting on June 8, the council voted 4-1 against rezoning 6.86 acres from RS-15 & LO-S to RM-12-S (residential building/multifamily) for the Village of Kinnamon project that includes three large buildings with up to three stories, including 41,835 square-feet and 78 units (one, two and three bedrooms).

In her comments, Smith said that prior to the discussion and vote, the issue of transparency was raised by the mayor: “Mayor Wait provided — for the purpose of transparency — his interpretation and his opinions of a letter received by the Village of Clemmons regarding the case about to be decided. An interpretation and opinion are not fact. The facts of the letter are in the actual referenced document, which is attached and I request be read into the public record in order to provide the stated complete transparency (attachments are long and not expected to be read).

“I understand from a review of Robert’s Rules of Order that there is a process by which a council member (of the majority vote) can request that the decision on June 8, 2020, be reconsidered immediately. Such a vote could then be conducted based on the complete information available to the council, as all votes should be. I urge the council members subjected to influence by the mayor’s comments to step forward and do so for Case C-234.”

Wait said the letter “speaks for itself” and that he was glad that it is now part of the public record.

“As far as my comments compared to the letter, I will let the public determine whether my comments were out of line or not,” Wait said. “I’m pretty sure I was clear on this at the last meeting, but those were my comments. And I wasn’t speaking on behalf of council, and I didn’t know what council was going to do with that motion. It was purely to keep the public apprised of the context of that particular situation.”

The four-page letter from Fox Rothschild LLP Attorneys of Law from Greensboro — who represent property owner Allegro Investment Properties LLC — was signed by Thomas E. Terrell Jr. and Patrick M. Kane. It was sent to Wait (with Village Manager Scott Buffkin and attorney Elilot Fus being copied), who then shared it with council members prior to the June 8 meeting.

It started out with: “Denial of this rezoning under what is now a well-documented public record would be a violation of the Fair Housing Act and Title VI of the Civil Rights Act. It would also constitute the selective enforcement of the Village of Clemmons’ laws and thereby be a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, not to mention being arbitrary and a legally erroneous application of a comprehensive plan.”

It further states, with footnotes, that council members “stated their intent to deny the rezoning application because it is not 100% consistent with the guidelines of a subjective planning document that, by N.C. Statute, N.C. case law, and the terms of the comprehensive plan itself is a ‘guide.’ The Compass Plan is not an ordinance or law.

“The foundational point of Allegro’s potential legal claim(s) is that the Village of Clemmons routinely and habitually approves zoning cases that only conform to the ‘general intent’ of the plan or have articulated inconsistencies. Many of these inconsistencies are noted in staff reports and discussed in meetings.”

The letter states that the context for this potential rezoning denial also includes past claims of “unlawful discrimination and violations of the Fair Housing Act for this same project on the same site. That denial resulted in a settlement agreement with the N.C. Human Relations Commission and the Village’s payment of $150,000 in settlement in 2019, making the facially minor basis for denial this time all the more compellingly pretextual.”

Lengthy exhibits attached by the petitioner’s attorney included “examples of approved rezonings that were inconsistent with Compass Plan,” a copy of the conciliation agreement from the previous case, and “one of numerous federal cases where racial discrimination was found in the coded language of zoning comments.”

The letter concluded with “if it is necessary to seek legal redress, we would seek aggressively through litigation discovery to uncover all written communications among council members and between council members and citizens, including emails and texts, to determine if any council member entertained or gave any form of credence to the dog whistle claims mentioned. Those communications are public record by law.

“‘Ron Davis (developer) has previously informed you, but we repeat to you now, that this project has deadlines for local approval of July 13, 2020, in order to qualify for tax credits from the N.C. Housing Finance Agency. If delayed by the village council for any pretextual reason that causes Allegro to miss its opportunity to participate would add to the measures of damages that we would advise our client to seek in litigation. Those damages would include all costs and attorneys’ fees.

“It is appropriate for the village council to entertain a motion to approved this project this evening and vote accordingly.”

The item was not on the agenda for the business portion of Monday night’s meeting.

In other highlights from the meeting, which was the first “live” meeting in village hall after a couple of months of virtual meetings, the council:

• Approved a Zoning Map Amendment (Zoning Docket C-230) of Kazakos Brothers Clemmons LLC from LO-S to GB-S (General Business – Special) at 2225 Lewisville-Clemmons Road. AAA Storage Management plans mini-storage units on the 2.67-acre tract just north of Peace Haven Road. Doug Stimmel, representing the petitioner, said that “it will have an office building look without the people” and would be a “quiet neighbor.”

• Heard from Nasser Rahimzadeh on minutes from last week’s Planning Board meeting that included a public hearing for a single case, Zoning Docket C-236, for property owned by HRP Clemmons LLC from HB-S to HB-S (Highway Business – Special) at 2468 Market Center Drive. The property was recently subdivided from the old Kmart property, and the petitioner is proposing to build a Bojangles restaurant with drive-through service. The rezoning request passed unanimously. Later in the meeting, the council called for a public hearing for Zoning Docket C-236 at its next meeting on Monday, July 13.

• Approved a Capital Project Ordinance, CPO-LCR-2020-1, for Lewisville-Clemmons Road Connectivity.

• Agreed on getting an updated price quote on upgrades to the audio system in the council chambers of Village Hall.

• Appointed Brad Hunter, Tressa Krenzer and Carolyn Miller to the Planning Board; Robert Manak and Ronald Wertheim to the Zoning Board of Adjustment; Daniel Butner and Kevin Farmer to the Stormwater Advisory Board; and Keith Green to the Triad Municipal ABC Board.

• Heard in the marketing/communications report that there will be a medicine drop on Monday, July 20, from 9 a.m. to noon at the James Street Fire Station. It will be a drive-through service with everyone remaining in their vehicles having the opportunity to dispose of expired, unwanted or unused prescription drugs and over-the-counter medications.