Last Wednesday, Sept. 2, Wake County Superior Court Judge Donald Stephens responded to the appeals about the Tryon subdivision rezoning by remanding it back to the town.
Tryon was planned for 404 homes on 131 acres along Copper Beech Lane south of Oak Grove Church Road. The planning board recommended the conditional use rezoning and the associated master plan in June 2014, the town board deferred action that month because the engineer was changing the master plan and approved both in July 2014 by a 4 to 1 vote with Commissioner Margaret Stinnett voting no because there was no assurance at the time that most of the subdivision would have sewer service.
Frank and Olga McCoy filed suit in Wake Superior Court on Sept. 15, 2014, and later added to the suit after the Wake Forest commissioners adopted the required Supplemental Decisions (consistency statements) for Tryon and other projects in November. The McCoys alleged that the commissioners took the action in a closed session and the town refuted that,
After the decision, Frank McCoy wrote in an email: “McCoy’s victory shows that a citizen who is concerned about rapacious development and loss of rural amenities east and north of Highway 98 can at least slow the beast.” And, “The McCoys are not sure of their next step, other than to savor the temporary victory. They ask that people show up to meetings and hearings and get involved. And keep a watchful eye over those who would shortcut due process. A concerned voice (and a savings account exhausted by legal fees) can make a difference.”
Judge Stephens made the ruling last week but, as of today, has not issued the written order. The town and the McCoy’s attorney, Nathaniel Parker, cannot act further until they have the order. A person familiar with the case said, though, the judge is not requiring the developer to submit a new request for rezoning and master plan approval, just that the town, if it chooses, can begin at the request and go through the steps of review, a public hearing and decisions by the planning and town boards.
Attorney Tobias Hampson with Wyrick Robbins Yates and Ponton, the town’s contracted law firm, said in an email, “The Court will be remanding the matter to the Board of Commissioners for purposes of allowing interested parties, if they wish, to submit additional information about the application. We are in the process of outlining how to implement the remand. Once we have more specifics and a timeline for further proceedings, I will be glad to share those with you.”
The McCoys pleaded that the town violated constitutional provisions including due process; exceeded the approval of the planning commission; was not supported by proper evidence and was arbitrary and capricious; and did not even follow its own rules in the Unified Development Ordinance.
Their brief says the problems began with the application for the rezoning that was paid with a $626 check from Greystone Development of NC LLC of Raleigh, a branch of a national firm, but a name which never surfaced to public attention until now. The town’s documents say the developer is Tryon WF LLC from Knightdale; although the corporation name was reserved Feb. 14, 2014, the corporation was never created until June 17, 2014, 14 days after the planning board recommended approval. The owners of a property for rezoning are supposed to be the applicants.
Greystone Development Group’s website says it is developing Kings Glen (which was approved in 2008 and has had a number of owner/developers) and its next-door neighbor Tryon in Wake Forest. Charles Walker III was the spokesman for Tryon but carefully only said he was representing the developer or the partnership during interviews and the June 3, 2014, hearing. The McCoys say Walker told them he was a principal in Entitlement Preservation Group, which had been dissolved two years earlier, but not that he was a senior vice president at Greystone.
Another part of the McCoy’s case is that the town took an illegal step when it approved removing a portion of the subdivision, about 8 acres, from the Smith Creek Reservoir Watershed and allowing the developer to grade the area to allow all runoff flow into the Austin Creek watershed. The state has to approve any changes in watershed lines.
Also, the McCoy’s brief says the town illegally delegated authority to the town engineer to determine and certify that the grading indeed had changed the flow of runoff from the protected watershed to the next door creek.
Finally they claim there was a third problem with the change in the watershed boundaries. Any changes in those boundaries, which are part of the town’s zoning map, must be made only after public notices and a legislative hearing, The change was never mentioned in the only public notice about the overall rezoning.
Judge Stephen’s order may address only a few points of the McCoy’s pleading or several.
