BZA Hearing 11/28/2018

Friends, we had our hearing at the Board of Zoning Appeals yesterday with a large number of supporters present. Today we are preparing our next steps. We will keep you informed as our decision-making proceeds.

Below is a summary, from one observer’s view, of yesterday’s BZA proceedings:

Synopsis: BZA vice chairman, Bob Thompson, presided in the absence of the chairman and worked hard to let the facts be heard. To save time for a fuller hearing for us, he put all other appeals ahead of NCA’s. Unfortunately, other matters ran long and our hearing did not begin until late in the day.

Our counsel, Tom Hale made an excellent, succinct presentation of our case which,

1) he asserted that MPC did not follow its own procedures and did not adhere to the governing ordinances.

2) He argued that the now-proposed sewer treatment plant was not, as required by procedure and zoning law, a part of the original plan submitted to MPC, nor approved by the Knox County Health Department or reviewed by other relevant bodies, and that further, it is not a permitted use in PR zoning.

3) He made a powerful case, supported by video and a strong expert witness, Don Moore, (a very experienced forensic engineer), that the traffic study was inadequate for the situation and will not protect public safety – as MPC is bound to do. The two men presented an irrefutable case that the roads are already unsafe, not feasible to improve as needed and that increasing the volume of traffic 400% jeopardizes users, particularly children commuting to school.

4) Mr. Hale also argued that the board, as an appellate body is free to assert its own judgement and is not bound by MPC’s prior actions. He urged them to understand the law governing their actions and to take independent action.

Several board members asked important, relevant questions and it was clear they were both sympathetic and concerned, particularly about the safety question. They acknowledged the situation was unsafe and that adding volume would make it worse.

It was clear then that the developer and his team were unhappy with the direction. Arthur Seymour, their counsel, tried to salvage their arguments, focusing on the beauty of their plan and telling the board (paraphrased), “Who knows what might happen with the property if their plans are denied?”

In summary, our facts and presentation were strong and we were pleased with the direction of the hearing. However, MPC Director, Gerald Green emerged from the rear of the room unsummoned and interjected himself into the proceedings – several times, to defend MPC’s actions. Control and direction of the hearing then seemed to begin shifting.

Among recommendations of Mr. Green to the Board was a suggestion that some of the rules for MPC would be changing in the new year and the board need not specify actions that would be required of the developer, such as road improvements. At that point, Board legal counsel, Daniel Sanders cautioned the board members not to rely upon Mr. Green’s advice since there was no certainty of rule changes and they were only authorized to act under existing rules and law.

In effect, Mr. Green and county staffers (from engineering and codes departments), then crafted an argument in defense of MPC that – things have been done a certain way in the county for many years and therefore that constitutes permissible procedure, items not specified at one stage of the process simply “flow through” to the next, that staff would insure the developer adhered to agreements made.

MPC staffer Tom Brechko argued that the sewer treatment plant WAS a part of the plan submitted to the staff for review (although this was apparently unknown by other parties).

He was then asked by the Board to show the plat documenting that fact. After a delay a plat was produced (by Chris Ooten, CEO of Safe Harbor Development and current MPC member) which, from the perspective of the audience, appeared poorly reproduced and which was simply indecipherable by most viewers.

The plat seemed to raise much uncertainty among board members. Still, the staff asserted the plat had included the treatment plant and that staff had been aware of the sewer treatment plant all along, and that the order of events fell within their normal procedures.

When the staffers weighed in, the board was effectively forced to rely upon their assertions. That seemed to raise much uncertainty among the board and they asked their legal counsel for advice several times as they weighed their options. Mr. Hale stepped to the podium and reminded them of their ability to make a decision independent of MPC.

By then, the hour was quite late. One member of the board, Mr. Braden began to push hard for a vote. The acting chairman and another member asserted they were not satisfied and did not feel they had adequate facts for a good decision. One member asked for a continuance. Ultimately, Mr. Braden, a retired, long term Knox County employee and a forceful personality, prevailed, even with the chair continuing to express concern. Ultimately, Mr. Braden successfully forced the vote and was supported by enough other members that the those asking for more time lost. Mr. Braden then pushed for a final vote and NCA lost the appeal matter by a margin of one vote.