Solomon Development follow-up statement on recent settlement with Town of Lewisville

Published 12:10 am Thursday, March 23, 2023

By Jim Buice

It was revealed in the January council meeting that the town had reached a settlement agreement with Solomon Development LLC for $1,975,000 regarding an apartment building project behind Shallowford Square that was previously turned down by the town council.
A voluntary mediated settlement conference was held Dec. 20, 2022, in town hall between the two parties, where a tentative settlement agreement was reached, and the council then unanimously approved it in a special called meeting on Dec. 29, 2022.
That led to unanimous council approval, which was also recommended by staff, in the Jan. 12 town council meeting of a resolution to move forward with the execution of the finalized agreement between the Town of Lewisville and Solomon Development, LLC.
Ayers reported in last Thursday night’s meeting that the finalized settlement agreement and release was signed on Feb. 27 with the town officially paying Solomon Development $1,959,372.20, which included the transfer of the land — the property at 200 North St. and the property at 145 Belnette Dr. (which fronts the Great Wagon Road) — to the town.
“In summary,” Ayers said, “the dispute has been settled, mutual releases have been provided and the properties in question have been acquired by the town.”
Mayor Mike Horn said, “As I understand it, in that settlement it not only resolved the dispute with the town and the Planning Board but also the potential lawsuits against several council members individually.”
Ayers confirmed, “Yes sir, that’s correct.”

Attorney Scott Horn with Allman Spry Davis Leggett & Crumpler, P.A., provided the following statement on behalf of Solomon Development regarding the recent Settlement Agreement between Solomon Development and The Town of Lewisville.

The following statement is made on behalf of Solomon Development, LLC, regarding the recent Settlement Agreement between Solomon Development and The Town of Lewisville

Solomon Development, LLC, and The Town of Lewisville completed the sale of the land owned by Solomon adjacent to Shallowford Square in Lewisville on February 27, 2023, in accordance with the settlement between the two parties which was announced through a prepared statement read by Lewisville Mayor Mike Horn at the Lewisville Town Council meeting held on January 12, 2023. The members of the Town Council who were present at that meeting unanimously voted to approve the settlement. While Solomon has no desire to publicly rehash the dispute, the statement read by the Mayor regarding the settlement omitted important facts which are necessary to have a full understanding of the issues surrounding the controversy.

Solomon Development is a small family business owned by long-time Lewisville residents Jeff and Julie Zenger. Solomon acquired the land bordering Shallowford Square in 2004. At the time of acquisition, the property’s zoning classification was already in place to permit development of a mixed-use or multi-family project. The prior owner of the property had in fact already obtained Town approval of a site plan for the construction of a multi-family building on the site; however, Solomon elected not to proceed with developing the property at that time, and for many subsequent years, because Mr. Zenger was serving during the same period on the Lewisville Planning Board and as an elected member of the Town Council.

Demographic information collected in a 2019 survey conducted by the Town indicated that as much as 70% of the adult population in Lewisville was over the age of 50. In late 2019 and early 2020, after Mr. Zenger had concluded his service to the Town, Solomon began preparing plans to develop a luxury apartment building on the property, catering primarily to older seniors who wanted to remain as residents of Lewisville and live in the downtown area within walking distance of shops, restaurants, grocery stores, pharmacies, and medical providers. The project would also be designed to help advance the stated goals of the Town with respect to development of the particular area of Lewisville near Shallowford Square, which (according to the Town’s Unified Development Ordinance, or “UDO”) was to have “a broad array of uses . . . in a pattern which integrates shops, restaurants, services, work places, civic, educational, and religious facilities, single family housing, and higher density housing.”

Solomon worked closely with Town planning staff to produce a site plan and building design for the development of the property which would comply with the requirements of the UDO. In fact, the planned exterior building design was inspired by the Langenour House, a downtown Lewisville historic landmark. As previously mentioned, there was no question as to whether or not an apartment building could be developed at all on the property, because the zoning which allowed for multi-family use had been in place for almost two decades. In many North Carolina towns and cities, neither the elected governing body nor any type of politically appointed board or commission is charged with reviewing and approving technical compliance with a development
ordinance. Such review and approval (or denial) in those cases is generally left to the municipality’s professional planners and inspectors who are charged with making sure the development ordinances are properly complied with.

However, Lewisville’s UDO does require site plans on all projects to be reviewed by the Lewisville Planning Board, with a final review and approval (or denial) by the Town Council. Chapter B, Article II, 2-1.6(H), General Regulations, Section 3(d), of the UDO states in part: “For proposals requiring simply site plan review but not rezoning or zoning map amendment, . . . the Elected Body shall approve any plans that meet all the requirements of this Downtown Overlay District and the UDO . . . and deny any such requests that do not meet the requirements. The Planning Board and the Elected Body may exercise their full authority when considering requests for rezonings or map amendments.”

Note the first sentence states the Town Council (as the “Elected Body”) “shall approve any plans that meet all the requirements” of the UDO, while the second sentence states that the Town Council “may exercise their full authority when considering. . . rezonings or map amendments.” To put it another way, when reading both sentences together, the Town Council has very little discretionary authority to deny approval of a project on property that is already zoned for the particular use and meets the requirements of the UDO.

Town planning staff determined the first site plan proposed by Solomon complied with the UDO.

However, before the site plan was presented to the Planning Board for formal review, a member of the Planning Board publicly commented about the project on social media and engaged with a small group of Lewisville residents who began a public campaign against the project. At the first presentation of the project to the Planning Board, the Planning Board improperly allowed public comments before taking up the review. The Planning Board recommended against approval of the project without providing Solomon with any clear and objective guidance as to what changes needed to be made for the project to meet the parameters of the UDO.

When the first plan was put on the agenda for Town Council review in September 2020, the Council understood it would not be appropriate to entertain public comments for the review because public opinion is not relevant to whether a site plan complies with the Town ordinance. It would have been the equivalent of asking for public comments regarding whether a resident’s
house should be painted green or yellow. Despite that realization, Council decided to rearrange the meeting agenda and hold the general public comment portion of the meeting before taking up consideration of Solomon’s plan. The Council did not approve the plan, relying ostensibly on the Planning Board’s reasons for recommending denial.

Thereafter, Solomon requested specific guidance from the Council as to what changes were necessary for the project to comply with the UDO. Council deferred the questions to the Planning Board. Again, there was no definitive response to Solomon’s requests for guidance. In fact, certain members of the Planning Board made it clear to Solomon that they were opposed to the project no matter how the plans may have been modified.

Solomon was left with no choice in attempting to move forward but to revise the site plan again, resolving the only objective ambiguity in the UDO that was mentioned by the Planning Board and the Town Council; that being that the building height could not exceed “21⁄2 stories, with a maximum height of 48 feet.” The UDO does not (or did not at the time) define the height of a “story” or provide any other indication as to how the height of a building could be measured in terms of the number of stories. It is interesting to note that the Lewisville Town Hall building (which is also located on Shallowford Square almost directly opposite the Solomon property) is a 3-story building which not quite 48 feet tall. Solomon’s original plan was for a 4-story building, with elevator service to each floor, that still met the 48-foot height limitation. Regardless, Solomon’s revised site plan reflected a 2-story building that would be 45 feet tall.

Solomon’s architect and the Town’s planning staff determined that the revised site plan complied with the UDO requirements, and in a split vote the Planning Board also recommended approval of the revised site plan. The plan was then scheduled to be reviewed by the Council at its March 2021 meeting. Prior to that meeting, the Council requested Solomon to postpone the review so that the Council could have time to explore some alternative proposals for Solomon’s project. Solomon agreed to the delay and offered several suggestions, but unknown to Solomon at the time, there were members of the Council who were opposed to the project no matter how strictly it could comply with the UDO. The Council disapproved the second site plan in May 2021.
Solomon had spent thousands of dollars and complied with every request made by the Planning Board and Town Council over more than a year and a half, while the Zenger family had to deal with an unwarranted public spectacle, only to be denied the right to develop the property in a manner that was clearly allowed under the Town UDO.

Through a series of public information requests later in 2021, Solomon discovered numerous communications between members of the Planning Board, Town Council, and even certain town residents who were coordinating efforts to thwart the development. The communications tended to indicate some members of the Council may have been working in concert to defeat Solomon’s
project based on personal opinions and improper political motives, instead of what should have been a simple, objective review of the proposal under the Town’s established development requirements.

Solomon presented counsel for the Town with portions of the private communications which would provide a very real and supportable case against the Town and individual members of the Town Council and Planning Board for what appeared to be egregious and flagrant violations of Solomon’s constitutional due process and private property rights. Attorneys for Solomon and the Town engaged in numerous discussions for several months thereafter. Notwithstanding what was said in the Town’s January 12th prepared statement, Solomon did not formally notify the Town of an intention to sue, but merely provided the Town with the evidence which supported the claims Solomon could make and the real damages Solomon incurred as a result of acts by a few members of the Town Council and Planning Board, if Solomon was forced into filing a lawsuit. All Solomon ever asked of the Town Council was to be treated fairly and impartially in accordance with the Town’s legal obligations.

Solomon would not have been pushed into pursuing any claims against the Town had the members of the Planning Board and Town Council acted in accordance with their duties and obligations as both appointed and elected public officials. During some of the public meetings, unfounded accusations were made against the Town planning staff and other Town employees, none of which were true. Solomon wants to emphasize that the Town planning staff and other employees were, and always have been fair, professional, and respectful; performing their jobs with the utmost integrity.

While it is true, as the Mayor said when reading the Town’s prepared statement regarding the settlement, that “neither the Town or any Town official has agreed that any mistakes were made”, their lack of agreement does not change the fact that mistakes were made. As taxpaying citizens of Lewisville, Mr. and Mrs. Zenger would greatly prefer for Solomon to have developed a beautiful project for Lewisville seniors to live in on Shallowford Square, rather than the current empty lot which sits devoid of beneficial use, and each and every Lewisville taxpayer is paying a price for the decisions made by a very few.