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County weighs dispute over buffer

Residents, developer at odds

POSTED: November 28, 2012 12:32 a.m.
 

Residents of a south Forsyth subdivision have pleaded their case that a 15-foot difference in stream buffers for eight lots would negatively affect dozens of nearby and Keystone Lake-adjacent homes.

Forsyth County commissioners are mulling the arguments made by a homeowner in the partially developed Champions Run subdivision and developer Rocklyn Homes.

The case centers on whether a 35-foot or 50-foot stream buffer should be required for part of an upcoming development phase.

The commission heard from the parties during a Nov. 15 administrative hearing before postponing a decision to Dec. 20.

County Attorney Ken Jarrard explained at the hearing how the staff’s flags on the developer’s application ended up before the commission.

When Rocklyn applied for a land disturbance permit in July, the planning department denied the request for the subdivision plat since the 35-foot stream buffer marked on the plan didn’t comply with the current 50-foot requirement.

The buffer had been approved in 2004 with the 374-home Champions Run subdivision rezoning. Shortly afterward, the county increased the minimum stream buffer to 50 feet.

During a Sept. 4 meeting, the developer appealed the staff’s ruling to the county zoning board for a hearing, which required public notice of what had previously been a staff matter.

Just before the start of that hearing, however, the county agreed with the developer’s arguments and allowed the 35-foot buffer for the phases in question.

Residents who had come to speak on the issue no longer had a forum to do so, and appealed the matter to the county commission.

One of the homeowners’ associations, Grand Cascades, dropped its appeal, while the other, Keystone, was denied standing by the commission this month.

Carol Albert, who lives in another phase of Champions Run, was granted standing, and awaits the final call on buffer distance.

Jarrard explained the reasoning behind his recommendation prior to the zoning board’s decision.

Though the developer had missed the two-year “grace period” to apply for permits with the former buffer requirement, a zoning condition led him to recommend allowing the 35-foot buffer.

In the case of Champions Run, a condition stated that the provided site plan would be the “plan of record” with the zoning.

The county’s unified development code, Jarrard said, defines site plans as including buffers.

“The consequence is that that zoning condition meant that that zoning site plan became part of your zoning map,” he said. “[A previous commission] zoned the property and said this site plan controls the zoning.”

Jarrard added that the county’s unified development code does have some ambiguity when addressing site plans that could be interpreted in favor of enforcing the 50-foot regulation, though he believed the clause “unless otherwise specified” would point back to the board’s zoning condition.

Either way, he said, in zoning law “any ambiguity goes to the right of free use of land,” which he believed would be the outcome of a case in court.

“This was not an easy determination,” he said, “but I believe that it was the legally appropriate and cautious thing to do.”

Though that was his interpretation, Jarrard said the commission has an opportunity to overturn that call and decide in favor of the residents by enforcing a 50-foot buffer.

Albert appealed on behalf of Champions Run residents, who maintain the 35-foot buffer would cause more silt to enter the lake, for which their association would bear the costs of dredging if needed.

She also noted the Rocklyn bought the property from foreclosure, questioning whether those rights could be transferred.

“We implore you to uphold the current 50-foot buffer,” Albert said.

Stephanie Everett, an attorney representing Rocklyn, said the developer has spent millions of dollars based on previous assurances by the county, including granting of permits in other phases with the former buffer distance.

“We do believe an approval of this appeal will violate Rocklyn’s constitutional rights,” Everett said.

Commissioner Brian Tam, whose district includes the site, opted to postpone the decision after hearing the lengthy arguments.

The commission also asked for a review of the unified development code to remove the ambiguous language.

 

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