Strip mall decision in officials' hands

With developer Kevin Thornsbury listening in the background, Rhett Wilson voices her opposition to the proposed rezoning of 1.7 acres bordering Monterey and Highland County on U.S. 250. Thornsbury wants the property rezoned for business so he can build a commercial rental space without the excessive oversight and regulation he says he would be subjected to if he had to build under a conditional use permit in a residential zone. Wilson says the property should remain residential because homes surround the lot on three sides. (Recorder photo by James Jacenich) MONTEREY — Making room for business isn't coming easily for county leaders.

After multiple rounds of debate and a public hearing on a request to rezone property on the Monterey border, no decision was made last Thursday.

Highland planners met with the Monterey Town Council and Highland County Board of Supervisors to consider rezoning a 1.66- acre lot belonging to Hildi McLean on the border between Monterey and Highland County on U.S. 250. Kevin Thornsbury would buy the property if it were zoned for business, and construct a shell building to lease space. He applied to have it rezoned from residential to business use.

After extensive discussion, planners did not recommend the town or county approve the request.

Half of the property is in the county, half in town, so both town and county officials have to approve of the rezoning if it's granted.

The debate raised a lot of questions about how to apply zoning regulations and the long outdated comprehensive plan. Planners felt they could more easily consider Thornsbury's proposal through issuing conditional use permits for the businesses in the building, and wanted a clear plan from Thornsbury about what he intended to do. County attorney Melissa Dowd argued it was a rezoning request, so no detailed plans were required. Supervisors were eager to encourage growth in that area, and disagreed with the planners' focus on protecting the residential zone, and those who live there.

Making matters more complicated was the fact that each governing body had members with potential conflicts of interest (see related story).

'All this boils down to

jobs,' developer says

The 1.7-acre lot in question is situated between land owned on each side — by councilmen Francis Fenn and Tony Stinnett.

Thornsbury made several proffers — adding five additional feet to the 10-foot setback required from adjoining landowners, complying with erosion and sedimentation and storm water regulations, placing trash in a containment area, no more than one per building, buying additional fire hydrants, installing lower level or subdued lighting, and using shielded lighting at rear entrances.

He argued rezoning must meet at least one of four conditions according to the zoning ordinance — public necessity, convenience, general welfare or good zoning practice. He said his project would meet at least one, if not all, by providing jobs, encouraging youth to stay in the county, and diversifying the tax base.

"All this boils down to jobs," he said.

Dowd said councilmen and supervisors had three other criteria to consider because Thornsbury made proffers. The rezoning must give rise to the need for the conditions; the conditions proffered must relate to the rezoning; and the developer can't contribute money to the county or town in exchange for approval, she explained.

As far as the location of the project, Thornsbury noted the county's land use plan encourages compact development and that development should occur near existing communities.

Planner Jim Cobb pointed out Thornsbury's proposal has changed since initially presented in June. Thornsbury downsized his project from 8,000 square feet to a 4,000- foot structure that could be expanded.

"We can't continue until we have a site plan," said Cobb.

"It's a rezoning for a use, not for a specific project," said Dowd. "If it was for a specific project, you'd have to have precise dimensions of that. This is not an application for a permitted use. It doesn't matter what is going on the property. This is not a conditional zoning. It is not for a specific use."

Supervisor Jerry Rexrode agreed. "He is asking for an unconditional rezoning."

"The land doesn't hold any value as R-3," said Thornsbury. "B-2 regulations are very clear what can or can't happen. I've got enough regulations to work within to do this and do it the right way," he asserted. "That and what I've proffered are enough. There is (also) a natural guideline we follow in Highland County." He said the hours and size of any business are naturally limited by the low population.

"What he does with it after the fact is strictly beside the point," added Sherry Sullenberger, who represented the property's owner. "It's simply moving a piece of property from one designation to another."

"Rezoning doesn't have much to do with the actual use of the property," Dowd told planners. "Permitted uses become something different … The plat of the two lots is your site plan, because it is not a conditional use permit."

"There are no buildings, no nothing, just a rezoning," said supervisor Jerry Rexrode.

"I work with this constantly," added supervisor Robin Sullenberger. "It is a simple thing. Zone business to carry out a business investment — that's an entrepreneurial venture that should be given strong consideration and it should go through the process. This specific site is equally suitable for residential or business use in the future. It's a mixed bag down there — business all around, residences all around. You could make a case either way."

"I've got industrial zoning behind this property," said Thornsbury. "We've got a hodgepodge in this area."

Councilman Francis Fenn, who lives in a home next to the lot proposed for rezoning, had a different opinion. "My personal feeling is that while he is asking for rezoning, it should not be rezoned," he said. "It should be a conditional use permit, for the simple reason, on both sides there is residential property, across the street is residential, therefore it should not be rezoned B-2. If you rezone, you can't control what goes in on it. I'm not going to oppose it (the business project) because I see Kevin's yard at his home is very neatly kept. Whatever Kevin builds will be done in good taste. Because I'm involved in it, I will probably abstain."

He added that a 15-foot setback from his property line was not enough room for a fire truck to access the building in the event of a fire.

Thornsbury said he would install a sprinkler system to protect his investment even though it's not required in buildings under 12,000 square feet.

Thornsbury said a privacy fence, something Fenn wants, was covered under B-2, but he would not proffer it. Thornsbury is not obligated to make proffers to obtain rezoning or to build on the site.

"I'm not against the business," said Jim Thompson, who lives across the street from the lot. However, he added, "It's getting crowded down there. It will be hard to take away once it is in. I'm not fully for it or against it. I think it needs to be looked at for a long time."

It's a rezoning, not a

building issue, agent says

"We are getting hung up on what happens after the fact," said Sherry Sullenberger. "He is simply moving the property (from one use to another). Waiting to know all the facts is bad zoning. You get to decide whether you approve of the project or not — that's not the point. Is it a good piece of property to be changed from residential to business (is the point)."

Rhett Wilson of McDowell said she wasn't against Thornsbury starting a business, but she was against rezoning. "Rezoning to business is giving away incentives," she said. "It is financially encouraging it to happen. It makes it easier for property owners to get business in. That is giving up the future decision- making these bodies could have. It is giving up a level of oversight you need not do."

Addressing the requirements for rezoning, she said there was no "public necessity" because it would not benefit lifesaving or other public services. It was not "public convenience" because "it might hurt someone's livelihood (at one of Monterey's family run businesses)," she said. As for general welfare, "It may bring some jobs, but that could occur somewhere else in the county. Rezoning doesn't make these things happen. It could happen in other areas by use of other buildings. It would hurt existing businesses here in Highland County.

"R means residential," she continued. "What was proposed before was a place to take care of the elderly or sick," she said.

The land was previously rezoned to accommodate Highland Medical Center, but the center was built on U.S. 220 instead.

"Business is about profit and stores, setting up business for profit," Wilson continued. "It is not good zoning practice — spot zoning is not good zoning practice. You have residential on three sides. Seventy-five percent of the residents there are going to get harmed by lights and traffic. Local business will lose out to places not owned locally, but owned by corporate groups far away."

Sherry Sullenberger said, "I'm an adjoining landowner across the road. My property goes behind the Thompson house to Myers- Moon Road. I have no problem with what Mrs. McLean is asking to do — rezone for business … Where is the additional business zoning? Where do you go if you want increased commerce and more services? I have over 15 rental properties in Monterey, but I'm not going to let that stand in the way of (rezoning)."

She said there was no need for more residential property because existing residential property was available but not selling. She said wherever commercial development occurred it would run into neighboring residential uses. "I believe the highest use for the property across the street is for business," she said. "There are some things that I think are good for this community."

She said the county needed a drug store so people wouldn't have to drive to the Valley to buy medication, for example. "This community deserves the same services as anywhere in Virginia at a competitive rate," she said. "That's what this is about."

Monterey resident Jay Garber agreed. "We need business growth and I'm in favor of it," he said.

Crystal Gum said, "I am the youth of Highland County and I think it would be great for the community."

"I'm in favor of it, too," said Roger Simmons. "There aren't a lot of job opportuni- ties. In the future, it will provide opportunities for young people to stay here."

Mountain Hideaway Restaurant owner Tommy Hevener said, "We have a lot of concerns. What Sherry Sullenberger says is wonderful and fine. I did hear drug store, florist, and Subway (at the first meeting). It wasn't rumor. I heard it myself."

Sherry Sullenberger had said reports of a drug store or florist leasing space in the building were unfounded.

"It could impact a lot of small businesses," Hevener added. "It could devastate small business. It would have a very negative impact to duplicate business that is already here. We have a decreasing population. Existing businesses are struggling. I think that (rezoning) would be poor judgment."

County officials should be under no obligation to rezone the property just because Thornsbury wants to buy the property, he added.

Robin Sullenberger disagreed. "I talked to a gentleman yesterday who was considering an investment in Highland County," he said. "His impression was we are not going to make any improvements in Highland County. He is not going to invest. This is not about this specific project. We are losing school children. We don't have jobs. Anything that comes up is opposed."

Mayor Janice Warner said the town sewer system was able to handle any increase in use from the project. She said the sewer plant is permitted to handle 120,000 gallons of sewage a day, but averages between 25,000-40,000 gallons a day. "Any growth that comes before this body, we are able to take care of as far as water and sewer capabilities," she said.

Cobb in favor of

development, but with

constraints

"I hear what the county attorney is saying," Cobb said at the end of the public hearing. "I'm not opposed to a shopping center. What I'm opposed to is rezoning to get a shopping center. He can do that under R-3 and we have some control, especially if he decides to sell, we still have control."

Should Thornsbury erect a building and develop with conditional use permits instead, planners would retain authority over the kinds of businesses by applying conditions individually, something Thornsbury believes would hamper his project.

Further, Cobb noted, a commercial operation in an R-3 residential district must not "affect the health or safety of residents in the neighborhood," he said. "We are protecting the adjoining residents."

"I don't think everything can be permitted as a conditional use," said Rexrode. "It excludes a lot of things. I don't think you can take an R-3 district and put anything in it. It doesn't fit the intent for an R-3 use. R-3 is not for places concentrated with traffic."

Dowd agreed. " You can't put just anything." She added that Thornsbury's project, as presented, meets the criteria for a conditional use in R-3 and a permitted use in B-2.

But Thornsbury doesn't want the restrictions that go with R-3 zoning. "That's the main reason I want it rezoned," Thornsbury said. "I have a plan. I'm building an empty space. It's going to be a business."

Cobb said he couldn't make a decision until he knew what was going to be built. He said Thornsbury's plans were not specific enough and had changed during the review process.

Dowd disagreed, saying planners could make a decision based on what the zoning ordinance allows in a B-2 district.

"I don't agree that anything that is permitted will meet this criteria (of protecting adjoining residential use)," said Cobb.

Planner Sue Cornelius also doubted she had enough information to decide, but for a different reason. "There's no plan for the community," she said, referring to Highland's comprehensive plan, which has been stuck under supervisors' review for more than a year. "It should be in the comprehensive plan; it's not for us to decide. This won't be the last time someone will come to ask for rezoning."

Dowd disagreed on that point, too, noting the current 1998 plan and the current draft of a new plan earmark business and growth areas in McDowell, Monterey and Blue Grass

The existing business zone runs along U.S. 250, and includes part of Water Street.

Councilman Sam Shell noted there were more Monterey homes for sale than businesses.

Sherry Sullenberger asserted that businesses were in residences because there were no places available for business.

Warner said one reason to rezone was that McLean couldn't sell the property as residential. After three years on the market, she has had no offers, Warner said.

But Fenn said he talked to people who were interested in the property who felt the price was too high.

Sherry Sullenberger said, "That is simply untrue."

Warner noted the existing Monterey business zone is mixeduse, with businesses and residences side by side.

Sherry Sullenberger said the zoning map for the county, initiated around 1979, is "terribly outdated." She said the McLean lot should be rezoned to fit the needs of the present, not the past.

Dowd pointed out, however, that the lot was rezoned only 10 years ago.

Planners leave decision in

hands of county, town

Cobb made a motion that planners forward the rezoning request to the town and supervisors recommending disapproval, and that they waive the $100 fee for a conditional use permit and the one year moratorium on subsequent requests to encourage Thornsbury to reintroduce his project as a conditional use in an R-3 zone.

Stinnett abstained; planners Cornelius, Doug Gutshall and Cobb voted in favor, while planner Harry Sponaugle dissented.

Town council voted to wait until its Sept. 10 meeting to decide. That would give council time to review the zoning ordinance and would give Ronald Wimer, who was absent, an opportunity to vote on the request.

Stinnett, Shell and Fenn voted to wait; councilman Don Dowdy and Warner voted against the motion.

Supervisors, on a motion presented by Rexrode that they exercise their right to take up to 90 days to decide, voted not to postpone the decision, too.

"You have to have growth or your taxes are going to go up," said Rexrode. "Monterey is unique. There's no place to expand. You have to have expansion. But it is not easy to make a decision."

"The planning commission wants to take control of everything that is built here," said Sullenberger.

This week, Sullenberger said he agreed with Cornelius' point about the lack of a current comprehensive plan for planners to work with. "Other than busy schedules, there is not a good excuse" for how long it's taken supervisors to act on the draft plan, he said. "And I share the blame for that. It is incumbent on the board to complete the plan, present it to the community, and move forward. Sue's comments were right on target. It's difficult to have expectations (of the planners) and not give them an easy path to make decisions, if you don't have a plan … Zoning and growth areas need to be clear and straightforward."