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Rodney Graham is a Davidson resident and owner of John Marshall Custom Homes. The views expressed are his own, and not necessarily those of this website.

In defending the exemption to the affordable housing requirements for a 17-acre parcel off Pine Road (See “Town gives details of exemption deal,” June 6), Mayor Kincaid states that citizens should not necessarily be concerned about whether the town got a good deal, but whether the town got a “reasonable deal.” I would like to look more closely at this deal - which occurred completely outside of the public process I believe is required by the town’s own ordinance - and let the reader decide whether we got a “reasonable deal.”

I do not fault the property owner, Lawrence Kimbrough. Mr. Kimbrough simply sought to better his position on his development, and felt that he was offering something of value to the town in exchange for the exemption.

I believe what Mr. Kimbrough requested amounts to a variance to the zoning requirement, which clearly prescribes that in the Village Infill planning area all developments of eight or more parcels must have 12 1/2 percent of their affordable units considered affordable. The ordinance offers no “payment in lieu of” option in the Village Infill planning area, and it further states that this requirement may not be evaded by phasing a subdivision so that every phase has 7 or fewer lots.

The ordinance does allow such payments for subdivisions of 7 or fewer lots (Mr. Kimbrough’s proposed development has more than 35 lots), and for subdivisions in the Rural Planning area. The board is citing these provisions of the zoning ordinance to have us believe that the exemption they granted Mr. Kimbrough was perfectly in line with the law.

Davidson’s zoning ordinance (see section 19.0, Administration) clearly lays out the procedure to follow when a private citizen requests a variance from a zoning ordinance. There is to be public notification, and the Board of Adjustment is to be convened to adjudicate the petitioner’s request. Typically, the citizen has to shown a significant hardship that was not of their own making in order for the variance to be granted. The ordinance further states that profit motive is not a basis for receiving a variance.

The crux of my criticism of this exemption is that the town did not follow the above procedure, which I believe is so clearly applicable to Mr. Kimbrough’s request. Either the town board and their attorney are not familiar with their own zoning ordinance, or they knew that if the law were followed that Mr. Kimbrough’s request would be rightly denied.

So, instead of following the very public procedure, this deal was done out of the public view, and saw the light of day only briefly when it was approved at the Dec. 14, 2004 board meeting. By the board’s own admission, Mr. Kimbrough’s request could not have been granted under normal zoning processes, so they created a special exemption just for him.

The mayor and the board want us to believe that this was a good deal because the properties given to the town by Mr. Kimbrough are of great value, and enabled the completion of the greenway. I believe once you do the research and realize that the properties are of little value, this argument falls apart.

As part of the original agreement, Mr. Kimbrough gave, or will give, 3 parcels of land to the town. By Mr. Kimbrough’s own admission, some of this land was property he was already thinking of giving away, which gives you some indication of its worth.

The first parcel of property was a 1-acre sliver of land that begins at the end of Patrick Stough Lane, and terminates at Patrick Johnston near the beginning of the new Davidson Wood subdivision. This parcel was part of the Cabin Creek common area. It is wooded and parallels a sewer line. In other words, it is not developable property. The value of a 1-acre sliver of land running through the woods along a sewer line is not that great.

Furthermore, this 1 acre parcel of land only serves to provide a connection to the greenway from the Cabin Creek neighborhood. It is clearly not essential to completing the greenway itself.

The second parcel that was given to the town was a 1.6 acre property at the end of South Street. This was part of a 3.9 acre parcel that Mr. Kimbrough - based on his comments on this website - was already planning to give to The Pines. That 3.9 acres in turn was part of the original 136 acre parcel which was sold for $45,000 an acre to the developers of the nearby Antiquity Cornelius project. What the town apparently wants you to believe is that absent the affordable housing exemption they would have had to pay market price for this parcel, and that market price would have been at least $45,000 per acre. Again, under scrutiny this argument falls apart.

Had this small parcel of land been as valuable as the rest of the property sold to Antiquity, one would logically assume that the Antiquity developer would have bought it. I think I am correct is assuming that the reason they did not include it in the deal is because much of this parcel lies in a floodplain, and is dissected by the creek. It is not developable property. Being next to the old sewer pump station doesn’t increase its value either.

Mayor Kincaid argues that this exemption avoided a potential legal conflict. Let’s follow that argument and assume that in order to get the easement through the 1.6 acre parcel the town and county would have had to use their power of eminent domain to take the property, and compensate Mr. Kimbrough.

The majority of the existing greenway runs through the Westmoreland Farms property. By my estimate, this is about a 7,000 foot section of greenway. In order to get the easement to construct the greenway through this property, the town of Davidson paid $78,000, or about $11 a foot.

The greenway now runs about 430 feet through the 1.6 acre parcel given to the town by Mr. Kimbrough. Using the $11 a foot figure from above, I think it is fair to say that the town of Davidson would have had to compensate Mr. Kimbrough around $5,000 for the easement through his property - maybe $10,000 at most - had they elected to purchase the property rather than give him the affordable housing exemption.

I can’t presently explain the third parcel of land. Per the agreement shown on this website, Mr. Kimbrough is to give the town of sliver of this third parcel upon completion of the development of his 17-acre parcel.

So, to sum up this deal:

1. It happened outside of public scrutiny and outside of the procedures clearly outlined in section 19.0 of the town’s zoning ordinance.

2. The town gave up an opportunity to have four or five affordable housing units in an area of town that frankly has zero affordable housing. Not only was this an opportunity to have affordable housing, it was an opportunity to have the economic diversity that the town claims to desire.

3. The residents of Cabin Creek got land for a connector to the greenway.

4. The town now owns about 1.6 acres of property which lies mostly in floodplains and sewer easements and is also large inaccessible. Oh, and there is a greenway running through the middle of it. Apparently someone will come along and pay a lot of money for this property which the town can then use to purchase affordable housing.

5. Had to town elected to pursue the greenway easement through legal means, they probably could have bought it for under $10,000, or about $2,500 per affordable housing unit that was sacrificed.

So, do you think this was a “reasonable deal?”

(In fairness to the town government, before submitting this commentary, I posed all of the above arguments and more to them via e-mail and asked them to convince me that this deal was actually a good one. I got no acknowledgement or response. I will also state that while I think this particular deal was a very bad one, most of the time our town government does a very good job, including in the affordable housing arena.)

Filed under: Davidson opinions, Davidson town board, Planning & Development