Walton North Carolina LLC’s lawsuit against the city of Concord will likely continue in court following the city’s denial Sept. 8 of the homebuilder’s revised plans for a 276-acre subdivision.
“We were disappointed and surprised, and we’re hoping to move forward,” said Emily Powell, Walton planning and development manager in the company’s Charlotte office, who declined to say what the company’s next step will be. “Our goal is to move forward with a single-family community.”
The parties had entered mandatory mediation after Walton filed the lawsuit earlier this year.
Walton claims in its lawsuit that it has the common law vested right to develop the property; that the city breached its contractual development agreement with the company; that the city’s decision to deny its rezoning request was arbitrary and capricious; that the company was denied due process; and that it is entitled to compensation for its legal fees.
The council voted unanimously Sept. 8 that the Ridges at Concord project was not consistent with the city’s land-use plan and to reject Walton’s rezoning request.
City Council members cited public opposition to the development and increased traffic on Odell School Road, between Poplar Tent Road and Davidson Highway.
The company was seeking a rezoning of 275.6 acres of vacant land to residential compact, conditional district, from residential low density with a clustering option, because that zoning classification no longer exists.
Since the application was first denied in December and after the parties entered mediation, Walton reduced the number of lots from 550 to 510 and increased minimum lot widths by 4 feet.
Walton bought the land on Odell School between Poplar Tent Road and Davidson Highway in March 2012 for $1.7 million, according to Cabarrus County land records. The company is a subsidiary of Walton International Group Inc., a privately owned real estate investment and development group based in Calgary, Alberta, Canada, that is also the developer of Bonterra Village in Indian Trail.
The land had been voluntarily annexed in September 2005, and residential low-density zoning was applied in November 2005. In 2006, Magland Development applied for a rezoning to conditional use medium density for 684 homes, which was denied in February 2006. The company resubmitted its plans for 563 homes under the residential low-density zoning clustering provision that allowed smaller lots, and the preliminary plat was approved by the Planning and Zoning Commission in April 2006. Magland never began construction.
Walton’s lawsuit claims that during the time it believed it had vested rights to develop the property, the company spent an additional $530,000 on the acquisition of rights of way, surveying, engineering drawings, development plans and legal fees associated with submitting a plat.
Walton argues in its complaint that although the city told the company in December 2012 that the Magland plat would expire in December 2013, “There was no indication in the … letter that the expiration of such approval would in any way impact Walton’s right to pursue development of the property in conformity with the approved plat.”
The company also says it was unaware that the cluster provisions had been deleted from the residential low-density zoning until after it submitted preliminary site plans in November 2014, when the company was told it would need to seek a rezoning.
“If the development had moved forward prior to preliminary plat expiration, the clustering option would have been grandfathered for this development,” said the city’s Public Affairs and Projects Manager Peter Franzese, in an email. “However, since the process started over with a new preliminary plat and the option is no longer available, a rezoning is required for the number of lots requested.”
Walton also argues that the city had approved a development agreement in October 2014 with knowledge of its development plans but without indicating that a rezoning would be required.
At the time, rather take legal action, Walton said in its complaint, it submitted a rezoning request in March 2015 that was denied by the Planning Commission. A second request to rezone the property, this time to residential compact, conditional district, was approved in September 2015 by the Planning Commission, along with a site plan and preliminary plat. The city’s planning staff also recommended approval.
However, neighbors of the property appealed, and the City Council held a public hearing in November 2015. It held a subsequent public hearing Dec. 2 to address stormwater concerns, then denied Walton’s request.
In addition to its claims that it has a vested right to develop, that the city breached the development agreement and that the decision to deny rezoning was arbitrary and capricious, Walton says it was denied due process because speakers at the stormwater hearing were permitted to bring up other objections at the second hearing and that Walton was not given “an opportunity to address or rebut such testimony.”
Both the city and Walton declined to say what their next step in the lawsuit will be.