Thursday, March 13, 2008
Aldermen alter B4 zoning plan
By SUE WATSON
The Holly Springs Board of Aldermen, by a vote of 4-1, removed prohibition of new churches in B4 zoning after boardroom discussion before about 50 interested citizens.
The vote took place after aldermen voiced their opinions on the ordinance amendments under consideration. The amendments were a product of a planning study on future growth patterns, paid for by the city.
Alderman Garrie Colhoun initiated the discussion by asking board attorney Ki Jones if the proposed amendments to the zoning ordinances could be altered by withdrawing some elements.
Jones said the amendments could be voted on in toto or in part. He said churches are permitted in B4 zones by appeal to the board of aldermen, at present.
Mayor Andre’ DeBerry explained that the ordinance amendment gives the individual a right to appear before the board of aldermen to appeal a planning commission decision.
“It is not the job of this board to monitor the planning commission,” he said. “The planning commission asked for clarity and the board asked the planning commission to halt until the city had a chance to look at the total plan. The board of aldermen is not the zoning board, but oversees when some harm has been caused.”
“So the board reserves the right to grant variances at any time?” asked alderman Russell Johnson.
“Yes,” said DeBerry. “These ordinances were to make it more objective. It has been subjective, depending upon who is on the planning commission board.”
Alderman Nancy Hutchens pointed out that she does not remember seeing a church located off an exit ramp on I-55 from Memphis to the Gulf Coast.
“I think those areas are where you have high retail development, restaurants,” she said. “My concern was, yes, your group (Heritage Apostolic Church) wants a church there (Highway 7 South), but Frank Swords and Dr. Williams have already invested lots of money.”
She added that she thinks the law states that a church can waive requirements regarding how far a business that sells alcoholic beverages must distance itself from a church.
Jones said he thinks the law does allow a church to waive the legal requirement.
There is a good bit of distance between the two hotels that flank the church’s proposed site, said Don Hollingsworth.
“Lance (Forsdick) has another issue, if the property were sold,” he said.
Forsdick was invited by the mayor to speak to this issue. Forsdick is the developer of the Holly Springs Commons.
“From a development and planning standpoint, it’s not all about alcohol at all,” he said. “The point is restaurants like to be clustered together. If you drop a church in a B4 zone, it changes the face (appearance of the neighborhood). I’m talking as a planning mechanism.”
Johnson asked if a state law could be set aside by an agreement between two parties.
“What we are debating here is not distances but an amendment change at the request of this board by Bob Barker,” DeBerry said. “We’ve had unanimous votes on all these actions. The board contacted him to put together what the board wanted in its comprehensive plan. Then we opened (the amendments) to a public hearing.
Alderman-at-large Tim Liddy asked if there is a need for having a church waive a distance requirement.
Johnson said ordinances always allow a person to come before the board to ask for a variance.
“We always have a variance, or an exception to the rule,” he said, shaking his head.
“Yes,” said Jones.
Liddy pointed out that the city has an ordinance that prohibits a metal building from facing a public street.
“What if the city comes in and builds streets around it?” he asked. “Would the building owner have to change its facade, because of something the city did?
“I have more concern, not in the final use of a structure, but in B4, in my opinion, we should not allow any metal building.”
Planning commission director Felicia Autry noted that a question of permitting a church would not come before the board of aldermen unless the planning commission denied the permit.
Hutchens presented another scenario.
“What if someone wants to build (a church) behind KFC?” she asked. “You can’t say yes to one and no to another. That is what I have trouble with. I see no reason for it. I can’t go home at night and put my head on the pillow.”
Autry explained that the planning commission takes much more into consideration.
Hoyt Johnson interjected, “The Constitution forbids what y’all are doing.”
“It will be a classy building (the new church),” said Barry Thomas.
Liddy asked about Planned Urban Development.
“So a developer develops a PUD,” he said.
“A developer submits covenants,” said Autry. “The Swords and Williams PUD does not allow churches.”
Don Hollingsworth added, “A Planned Urban Development means you are doing your own deal equal or stronger than existing zoning (ordinances).”
Hutchens asked if restricting the location of a church is unlawful.
“A covenant in a subdivision says ‘we’re not allowing churches,’ ” she said.
“Most subdivision covenants say ‘single family dwellings,’ ” he said. “Covenants are with the landowner or developer. Then they could be appealed before the mayor and board.”
“The expressed intent of zoning is to restrict,” DeBerry said.
“All but agricultural (zones),” Hollingsworth said.
Liddy asked, “You are putting your trust in the planning commission to treat everyone the same under the guidelines you have to follow?”
“Yes, under the existing scenario,” said Hollingsworth.
Colhoun noted that currently B4 zoning permits anything upon appeal to the board.
“Even if this is adopted, you still have the appeal to the board,” Hutchens said.
“If you adopt this, it would not be an appeal before the board,” Autry said.
“We can vote on part (of this), right Ki?” asked Colhoun.
“You cannot add (to it) substantially,” Jones said.
Liddy made a motion to approve the zoning ordinances with exception to the language prohibiting churches in B4 zoning and Colhoun seconded.
“So each case comes before the board?” Colhoun asked.
“No,” said the mayor. “It goes to the planning commission and if it is accepted it is done.
“I think this board needs to be aware of the fact that we obtained a consultant for $2,935, came back in August the same year and the aldermen voted in favor and we came back January 2 and set a public hearing. My question is, What has happened between August 2007 and March 2008 that necessitates to change what we need in a B4 zone?”
Liddy summarized the actions.
“Number one, we had a public hearing to take public comment,” he said. “I feel we are responsible to the people. We are here to represent the opinions of our ward. I have a lot of personal concerns about affecting others’ property.
“We could also write a rule where a church can sign a waiver for alcohol. Number two, we haven’t talked about the financial (the Tax Increment Financing) angle. Number three, when federal law says we may be opening ourselves to a lawsuit, if we have strict guidelines, all we’re getting down to is (land) use.
“You have two hotels out there. I think if they follow all guidelines they should be allowed (to build a church).”
Johnson disagreed, saying the zoning ordinances have an appeal process built in and are merely used as a guide for the planning commission.
“What bugs me is where one person’s rights end, another person’s rights begin,” he said. “These are just guidelines and can be modified anytime with a variance.”
“So, to clarify, if this were adopted, there is an appeal to this board to grant a variance?” Hutchens asked. “Otherwise, we’re allowing them (the planning commission) to make the decisions. It would be just this body granting a variance.”
“Because the planning commission cannot grant a variance,” said Autry.
“This would allow (planning) the overall look of a B4,” said Hutchens. “When another person comes and asks for a variance, we at least can say, we already have one church. But we wouldn’t have the opportunity to say that (if the church restriction is left in the ordinance).”
The mayor then asked for a roll call on Liddy’s motion.
Liddy, Hayes and Colhoun voted aye, Johnson voted nay, and Hutchens remained silent (which is counted with the prevailing vote).
The motion passed to adopt the zoning amendments with the restriction on churches removed from the ordinances.
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