Allegro files lawsuit against Clemmons over rezoning denial
Published 11:21 am Tuesday, August 11, 2020
By Jim Buice
For the Clemmons Courier
Even before the Clemmons Village Council rejected a rezoning request for a multi-family apartment complex adjacent to the Kinnamon Village shopping center off U.S. 158 in June, Mayor John Wait received a letter from the petitioner’s attorney stating “you either need to approve this, or you’re going to get sued.”
And true to that vow, last Thursday the village received notice that a lawsuit had been filed in Forsyth County Superior Court by Allegro Investment Properties LLC with regard to denial of their rezoning request for the village at Kinnamon project.
“Major development on the legal side as council knows,” said Elliot Fus, the attorney who represents Clemmons, during the attorney’s report in Monday night’s meeting. “We put our insurer on notice of that suit, and I’m sure you’ll be hearing more about that in future meetings.”
In the complaint filed by Fox Rothschild LLP, the plantiff’s attorney, action was brought against the Village of Clemmons “for a declaratory judgment, injunctive relief, and damages based on the illegal, erroneous, and discriminatory denial of a zoning map amendment,” alleging the case is about Clemmons’ “rejection of an affordable housing development.”
Further, the lawsuit stated, “A previous denial by the village for an identical rezoning request for an affordable housing development on the same property resulted in a finding of discrimination by the N.C. Human Relations Commission and the village’s payment of $150,000 as settlement.”
After two May meetings that included a public hearing (May 11) and then tabling a vote (May 26), the council voted June 8 against rezoning 6.86 acres from RS-15 & LO-S to RM-12-S (residential building/multifamily) for the Village of Kinnamon project that includes three large buildings with up to three stories, including 41,835 square feet and 78 units (one, two and three bedrooms).
Councilwoman Michelle Barson made the motion to adopt the inconsistency statement provided by staff, which read as follows:
“The Clemmons Village Council finds the action to amend the village’s official zoning map regarding portions of tax parcels 5893-30-8703 and 5893-30-9990 from LO-S (Limited Office — Special) and RS-15 (Residential Single Family) to RM-12-S (Residential Multifamily — Special) to be inconsistent with the Village of Clemmons Community Compass (2040). The Clemmons Community Compass (2040) calls for Village-Scale Office and Retail use on the parcels of interest. The village’s RM-12-S zone does not meet Village-Scale Office and Retail as the use is not a commercial use and the proposed development is too high of a density for a village-scale development. The current zone of RS-15 and LO-S conform closer to Village-Scale Office and Retail, and will assist the parcels of interest reach its intended goal of development in step with Village-Scale Office and Retail, and to reject the rezoning request in docket C-234.”
The final vote against the rezoning was 4-1 in favor with councilwoman Mary Cameron casting the lone dissenting vote.
In the most recent communication prior to Monday night’s public revealing of the lawsuit, developer Ron Davis of Allegro Investment Properties sent an email with an attached document prior to the July 13 meeting stating he “would like to make a final formal request for a revote on Zoning Docket C-234, The Village at Kinnamon.”
In response, Wait said he and the council received the letter and wanted to make sure that it was clear that it was entered into the record and based on that request, there was no motion to add the item to the agenda.
Fus didn’t get into the details in his brief report Monday night of the 29-page lawsuit filed Aug. 6 and includes “Exhibit A,” which details the determination from N.C. Human Relations Commission regarding the previous lawsuit that was settled in January 2019.
In the introduction of the current complaint, it states that “although the village routinely approves zoning map amendments that are generally consistent with the broad guidelines and recommendations of its Comprehensive Plan, when Allegro Investment Properties LLC applied for affordable multi-family tax credit housing that was shown to be overwhelming consistent with the Comprehensive Plan, the village departed from its routine and denied Allegro’s application based on hyper-technical excuses of ‘incompatibility.’ ”
It further states that the denial was “pretextual and illegal” and “was motivated by numerous citizens’ written and public hearing comments that referred to potential crime, drugs, decline in property values, ‘those people,’ and other alleged problems that suggested the village should deny the rezoning because of the race and nationality of anticipated tenants,” and later recounted details of the “2015 rezoning denial and race discrimination settlement.”
It added six causes of action and concluded with Allegro requesting that this court enter a judgment, orders, impose any and all civil penalties, and award Allegro actual damage, punitive damages and cover costs and expenses as proven and allowed at trial.
When asked for comment on the lawsuit, Wait said, “I cannot comment on pending litigation at this time.”
In other business Monday night, it was announced that the proposed Clemmons Community Day 2.0, which was tentatively scheduled for Sept. 19 and was to include fireworks, has now been postponed.
Lisa Shortt, village clerk, referenced an email that was received regarding Clemmons Community Day, which was postponed this spring because of the coronavirus pandemic. A revised plan, including having fireworks at the Jerry Long YMCA that would have replaced the usual vendor-style event games, activities and food trucks, was revealed at the previous council meeting.
However, in email correspondence Monday to the village, Ditra Miller, CEO and executive director of the Lewisville-Clemmons Chamber of Commerce, stated: “Due to the further extension of Phase 2 (by the governor) and additional factors that could cause difficulty with social distancing measures, the board has decided to postpone Clemmons Community Day until 2021. Please know that we worked diligently to retool and recreate an event amid this challenging time to support our businesses and bring the community together.”
Also in Monday night’s meeting, the council heard from Allen Daniel during the public comments portion of the meeting regarding flooding of the low-lying lots in Clemmons West.
“This past storm came up four feet of water in less than a half an hour,” Daniel said. “We had four inches of rain, five inches of rain, some measured six. Since we’ve been in Clemmons West, it’s gotten worse. Why? Because of additional development upstream — not only upstream Middlebrook, but upstream Yadkin River. It’s gotten to the point where the Yadkin River has nowhere to go.”
Daniel said that although the problems are on private property, something needs to be done. He urged the village to cooperate with the county on dealing with these stormwater issues.
“If there are no other things that can be done, then I urge you to put a moratorium on development until you solve the problems that we have,” Daniel said.
Wait said he and other council members have received plenty of comments after the recent storm and that there are “plenty of follow-up conversations” to be had.