Developing friction: Marvin wrestles with commercial development after company questions fairness

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MARVIN – A developer’s public records request has led to tensions between some village officials after the company questioned the fairness of the village’s planning process.

Developer Raley-Miller Properties requested emails, audios and other documents from the village shortly before withdrawing in November its application seeking the annexation and zoning of property at the northeast corner of Rea and Tom Short roads, where it planned to build a grocery store, a movie theater, and buildings for retail, offices and restaurants. Raley-Miller partner Ken Orndorff marked up the documents, disputing some points and questioning behaviors, and returned them to the village, and they were distributed to council members.

That led Mayor Pro Tem Christina Frazzini, who supported the development, to place the public records request on the Feb. 10 agenda as an informational update for a Village Council’s meeting to make sure it was part of the record. The council voted to move the item to its agenda for a March 21 retreat at Firethorne Country Club.

Planning Board Chairwoman Mary Shkut, whose actions were called into question by Orndorff, later filed her own public records request for Frazzini’s emails.

Frazzini said she received notice last week that Shkut had retained an attorney and is requesting her emails from Nov. 2, 2013 – before she even took office – until Feb. 2, 2015. Asked about the request, Shkut said in a written response to The Mecklenburg Times: “My apologies, however I do not feel inclined to discuss this at this time.”

In response to several other questions, Shkut wrote: “The Marvin Council has requested full disclosure of all emails and documents, with the intent to evaluate assertions and relevant supporting documentation, in its proper context. It is only fair that all supporting documents and emails, which might refute more specific claims, be provided to the Council before being released to the media.”

Village Mayor Joe Pollino Jr. did not respond to a phone call and email seeking comment.

Frazzini has been the only town official to publicly raise questions about how the town handled the annexation and zoning process, which she believes is why her emails are being sought.

“I firmly believe that this project was a great project,” said Frazzini. “There’s a way to say, ‘These are our standards and ordinances; can you work with us?’ Then there’s making (developers) feel like they’re trying to do something wrong.”

The packet of emails Orndorff returned to the council, which were obtained from the village by The Mecklenburg Times, indicate that Shkut spent a lot of time and effort looking at details of the proposal, including measuring an area of the property slated to be a parking lot and offering to count the seats in a comparable theater in order to refute Raley-Miller’s parking space numbers. She also repeatedly questioned stormwater engineering assessments and the accuracy of traffic impact studies, according to the emails.

Her thoroughness prompted an email exchange between two Planning Board members lamenting the time the process was taking and the amount of detail being discussed.

“Mary also has the best of intentions although her desire to drill down may be OK for Residential ordinances – it is not working with Commercial,” wrote Richard Holzberg III to Cheryl Herberg on Oct. 13. “From my perspective, we are drilling down too deep into minutiae …”

Doubts raised early

Raley-Miller first raised concerns about the fairness of the village’s planning process last summer, shortly after submitting the request that the town annex the 28 acres the company bought in 2008. Raley-Miller planned to build a 14-screen movie theater, office space, retail, restaurants and a prototypical Harris Teeter that would be larger than traditional stores and have gas pumps. The Harris Teeter concept was something the company’s new owner, Kroger, wanted to introduce in the region, Orndorff said.

The land was appropriately zoned for commercial development in Union County, but the county does not permit the sale of alcohol – by the drink, bottle or can – in its unincorporated limits, something the company wanted for its restaurant and grocery store tenants. The company was seeking a village conditional district zoning in Marvin.

A June 8 letter from Raley-Miller’s attorney to the Village Council stated that Shkut’s “conduct is outside the normal bounds for how planning board officials are expected to conduct themselves in the public interest” and asked that the council ask her to recuse herself from the process, which the council declined to do.

Village Attorney Kevin Bringewatt responded with a letter saying that he discussed the concerns raised with Shkut, the village’s staff and the council, and that the council would not ask her to recuse herself.

“There are no legal issues here – this is a legislative rezoning decision and planning board simply will be making a recommendation,” he wrote. “If your folks believe there is inaccurate information presented by Mary or anyone else, then I would simply ask that your folks simply point it out and correct it. … As you might expect, Mary does not feel like this is really a fair criticism of her.”

The attorney pointed out that commercial projects “are not commonplace for Marvin so understandably (to me at least) there are likely to be a lot of questions, information and discussion.”

In her response, Shkut wrote: “As is the case with any development review, all Planning Board members asked questions, reviewed information and engaged in discussion about the proposal. Records exist which can refute assertions made by the applicant.”

Orndorff said that he requested the documents and returned them with notations to alert the village to what he believes was an unfair process.

“I’m moving on,” said Orndorff. “We consider ourselves finished with this chapter. We just wanted to put it out there for their residents and council, that maybe they should look at their policies and procedures so that the next applicant will have a less obstacle-filled path.”

Orndorff said that since the property is already zoned for commercial development in Union County, his company will consider development possibilities that don’t include alcohol sales.

Frazzini asked that a discussion of the public records request be placed on the Village Council’s meeting agenda because she wanted residents to know what had taken place.

“The findings from it were very disturbing to me,” she said. “I thought it was very important in the spirit of being honest and open and transparent in government, and putting this out there as part of the public record,” she said. “One of my responsibilities as an elected official is to keep residents informed and reassure them that we have a government process in place that can be trusted.”

No commercial development

Marvin doesn’t have any commercial development; it is a residential town where the median value of an owner-occupied home was $569,100 in 2013 and the median household income was $162,917, compared with the state’s $46,334, according to the Census Bureau.

The population increased 6.6 percent between 2010 and 2013, to 5,931. Some neighborhoods have been added to the village through voluntary annexation; others have made it clear they don’t want to be annexed, resulting in the village being only a few hundred feet wide along the thin stretch that connects its northern and southern ends, and sections of it along Waxhaw-Marvin road only touch at the corners.

Area residents successfully fought off a Walmart that was proposed for the Raley-Miller property in 2004. A 250,000-square-foot mixed use project proposed for Providence and New Town roads by Lat Purser and Associates Inc. nearly 10 years ago never got off the ground.

Recently, Regency Centers of Jacksonville, Florida, submitted a rezoning request for that land. It has named the 39-acre multiuse development Marvin Gardens, and hopes to include a 55,000-square-foot Publix grocery store, 25,000 square feet of shops, four outparcels and up to 35 homes to be built by Saussy Burbank. The land is zoned mixed-use conditional district that would allow up to 260,000 square feet of commercial space to individual conditional use district, which would include about 105,000 square feet of commercial space and 105,000 square feet of residential.

The first public involvement meeting has been tentatively scheduled for March 23.

At a December meeting, during preliminary discussions with Regency representatives, Village Council members emphasized that they want commercial development to fit into their vision – primarily equestrian – for Marvin: “We’re not the typical community,” Councilman Lanny Openshaw told them. “For better or worse, we’re different.”

Orndorff says his experience seems to bear that out.

“I’ve never seen a process quite like this one,” he said. “And I’m not sure why. Part of what we finally came to realize is that they wanted to control so many aspects of our project – the parking, the green space, the stormwater, access points – all the way down to the hours of operation of businesses.”

Fulfilling the vision

Orndorff said his company had talked to the village for a long time before submitting its application about what sort of development would be acceptable on the land, which sits across the street from another Raley-Miller project, also in Union County, that includes a Kohl’s department store.

“We had spoken with the staff and various council members about various development types,” he said. “In early 2014, we started to get serious with this concept,” one he thought the village was generally on board with.

On March 26, 2014, after months of preliminary talks with village officials, Raley-Miller submitted a formal application.

The village’s land-use plan generally calls for “limited commercial development,” but includes the Raley-Miller corner among the parcels where commercial development would be permitted.

The village’s goals, according to its land-use plan, is “to become a uniquely identifiable low-density small town that will primarily consist of a mix of attractive residential neighborhoods that are interspersed with larger-sized areas of preserved open space and environmentally sensitive lands that reflects the Village’s rural character and heritage.”

Through the summer and into fall, Raley-Miller and Marvin officials went back and forth over the details of the plan – the number of screens in the theater, the number of parking spaces, the classification of various buildings regarding traffic impact analyses, the type and size of the grocery store, the landscaping and setbacks, stormwater drainage, the types of businesses that would be permitted in offices, even the times that the movies would be shown, according to the emails.

On Oct. 21, the Planning Board recommended that the Village Council not approve the project. Shortly thereafter, Raley-Miller withdrew the application.

What Orndorff wonders is why it took the village so long to tell him that what he had in mind didn’t fit its vision.

Had he agreed to change the plans to accommodate all of the concerns raised, he said, “I don’t feel we could have been (financially) successful.”

“I met with (Shkut) and other staff members and council members at various stages before we formally made application,” he said. “I thought we were headed down the right path. I thought it was consistent with their plan, that it took into account residents’ concerns. It was just frustrating that we thought we were on the right path and apparently we weren’t.”

In her written response, Shkut said, “It is impossible for the Planning Board to issue support for a proposal which has not been formally submitted to the Village.”

She also provided the board’s Oct. 21 motion finding the plan consistent with some of the village’s land-use plan, but “predominantly inconsistent” in other ways, including that the size of the movie theater and grocery store made it a regional center as opposed to “community-oriented;” the buffers along roads and subdivision borders were insufficient; it didn’t comply with the tree preservation ordinance; and it didn’t provide enough open space.

Orndorff declined to say how much money the company spent on the process, but it included $13,600 for the application fee in addition to the costs of architectural plans, engineering drawings and a traffic study.

Between submitting the application and the Planning Board’s decision Oct. 21, Orndorff said his company responded to the concerns raised by the village’s staff, planning board and council. At times, he indicated that the project would not be viable were he to make requested changes.

“We told them what the needs were, what we needed to make this plan work,” he said. “We told them that back in May or June. Nobody said, ‘Well, maybe we should stop now.’”

Reporter Roberta Fuchs contributed to this report

Developer returns emails with questions and comments

After obtaining village emails through a public records request, Raley Miller Properties partner Ken Orndorff returned some of them with comments highlighting what he believed to be inaccuracies and indications of an unfair process.

• On Aug. 6, Planning Board Chairwoman Mary Shkut sent an email to town administrator and senior planner Lisa Thompson, as well as planning board member Trey Baker and village Councilman Brian Beaty, asking that when a contract was finalized for a new consulting traffic engineer, Shkut “immediately” be given the consultant’s contact information or that a meeting be set up so that she and Baker could voice the planning board’s concerns with Raley Miller’s traffic study before the consultant had a chance to analyze it. In his response to the town, Orndorff wrote: “Why do PB members feel the need to meet with engineer before the (traffic impact) analysis if not to influence the engineer? PB chair and Baker are not qualified to participate in TIA reviews.” In a written response to The Mecklenburg Times, Shkut wrote, “Records exist which refute these assertions. However, the Marvin Council has requested full disclosure of all emails and documents, with the intent to evaluate assertions and relevant supporting documentation, in its proper context. It is only fair that all supporting documents and emails, which might refute more specific claims, be provided to the Council before being released to the media.”
• On Aug. 19, Raley Miller’s traffic engineer, Jonathan Guy of Kimley-Horn, was given eight hours to review the village consultant’s assessment and be prepared to respond to concerns raised, according to Orndorff’s comments on the emails. Guy raised concerns with the planning staff that Shkut had mischaracterized the status of information sharing: “Unfortunately, it has been conveyed to members of the planning board that (village consultant Dave Naylor and Guy) spoke this past weekend as indicated in Mrs. Shkut’s email below,” he wrote to Thompson and former planner and zoning administrator Donna Cook, who in February resigned to take a position in Indian Trail. “I am concerned by this communication as it sets up a false expectation regarding what has actually occurred. Yes, we have spoken and I am now in possession of a copy of Mr. Naylor’s analysis (thanks to Ken), but 8 hours before the planning board meeting, which leaves very little time to digest Mr. Naylor’s analysis let alone formulate a response to these items. Even by Mr. Naylor’s own admission in the email (attached) and via phone he apologized for just now getting up with me. He also indicated on our call that it would have been more productive to have reviewed these items in person rather than in a public forum such as the planning board. I could not agree more.” In her response, Shkut said an initial village traffic report that recommended against approving the site and the TIA was provided to Raley Miller on April 28, and that additional information was requested from Raley Miller’s engineer on May 20. “Mr. Orndorff and his traffic consultant had over three months to respond to the Village engineer’s reports and reply to requests for additional information,” she wrote. She said that because the village’s questions were not answered, the village asked its own engineer to conduct an independent review. “Only then did Mr. Orndorff and his traffic engineer exhibit interest in providing the Planning Board … with the information they had requested.”
• On Sept. 20, Shkut notified the Planning Board members and Councilman Beaty that she had measured, re-measured and “triple-checked” her measurements and that the “parking spaces and aisles consistently fell below commonly accepted measurements required per our ordinance and per NCDOT and Char-Meck practices.” In his response to the village, Orndorff wrote, “Unfortunately, this is untrue. It was apparent, when reviewing PB chairs measurement techniques, that she isn’t measuring them as a planning professional (architect or engineer) would measure them. Shows lack of experience in this field. All parking spaces and drive aisles exceeded Charlotte-Mecklenburg minimum standards.” In her response, Shkut wrote, “Records exist which entirely refute this assertion.”
• In a Sept. 23 email to Naylor, Shkut challenges the traffic impact analysis and the methodology used to arrive at conclusions, telling him she disagreed with his report, found “it difficult to understand” why he chose one methodology over another, and ended by saying: “But, ultimately, given that there is so much disagreement with regard to the appropriate (Institute of Transportation Engineers) land use designation, I would elect we turn to the ITE Trip General Guide and Handbook once again. The ITE Trip Generation Handbook and Guide repeatedly state an independent, ‘local study’ should be conducted when an appropriate ITE use cannot be identified. With this in mind, perhaps it would be more appropriate to recommend a local study.” Orndorff, in his comments, claims that the N.C. DOT, Naylor and Kimley Horn all agreed that the appropriate guidelines had been used. “PB chair isn’t qualified to refute the information,” he wrote. In her response, Shkut wrote, “Records will show the applicant did not provide consistent information about his plans to the Village and to all agents charged with evaluating his plans.”
• In an Oct. 3 email, Shkut writes to undisclosed recipients presumed to be the Planning Board, saying that Raley Miller would be given a list of conditions to review before an Oct. 16 meeting: “This will give RM two weeks to consider each of the items.” Orndorff said the list was received Oct. 16, the day of the meeting. However, Shkut said that the board had not added any new conditions since an Oct. 7 meeting, during which Orndorff walked out in frustration before it ended. She points to minutes of the Oct. 7 Planning Board meeting, minutes before Orndorff left, in which he said: “Just in the interest of saving the Planning Board a lot of time, myself a lot of time, the residents a lot of time, I haven’t heard a condition, in its entirety, that I would agree to. So I would propose that someone make a motion to either recommend approval, or recommend denial and be done. I can’t live with the conditions. I have heard bits and pieces I can work with but what you’re saying is you don’t want the product, so just vote on the product. I can work with some pieces of some of them, but there are just too many that this project is not viable, at all.”
• In that same email, Shkut said that in a meeting Oct. 2, a DOT representative said they would require a new traffic impact analysis from Raley Miller. Responded Orndorff, “This is a false and willfully misleading statement provided to ‘all’ following the meeting with NCDOT where they indicated that a new TIA would NOT be required and that they concurred with the ITE code usage.” Shkut wrote that “records exist which refute this assertion.”
• On Oct. 15, the day before the meeting, Shkut wrote: “It’s really important that we all review this ahead of the meeting and that I try to gather majority favor of an end product so we can dispel any myths that we aren’t a ‘well-oiled machine’,” something that Orndorff questioned in his response to the village: “The only reason to ‘gather majority’ would be to try and ensure the majority vote satisfied PB chair,” he wrote. In her response, Shkut said the comments were taken out of context and “spun” by Orndorff. “Members of a public body are subject to open meeting laws and are free to vote on any matter being considered by the Board in whichever direction they choose. All final recommendations and decisions and votes of the Marvin Planning Board always occur in public, open meetings in conjunction with State Statutes.”