Swansboro, NC. Wal-Mart Developer Uses Lawsuit To Bring Town Into Submission
Last week, Sprawl-Busters received a letter from frustrated residents of a small town in North Carolina that was trying to zone out big box stores, but got tangled in the threat of a developer’s lawsuit that scared them into submission.
“We are resident of a small coastal town in NC called Swansboro,” the letter began, “official population 2,993 but fewer who are full-time residents. We are essentially a tourist town as the gateway to the lower Outerbanks otherwise known as The Crystal Coast.”
“We are currently facing plans by Walmart to bring a supercenter to town. For many reasons, this has been challenged for two years and, as a small town, it's been very draining both emotionally and fiscally. The zoning was changed to support commercial as two separate plots. Once changed the owner combined them in sort of a bait and switch scenario.”
“What makes this plan especially troublesome is that the proposed site is adjacent to the high school and elementary school with the middle school across the street. To say many in the town are upset would be an understatement.”
“Last week the Planning Board and Town Commissioners were forced to accept the submitted plans or face a multi-million dollar lawsuit that we cannot afford. It was at this meeting that the public first saw the designs and traffic study done by a firm hired by the developer and Walmart. What we saw was alarming.”
“From a signal control perspective. the study has some significant flaws that may present a very dangerous situation for the town. Our town has one way in and one way out via a very narrow four-lane road. There is no room to expand it as it already was and the roadside businesses are right at the edge now.”
“The traffic volume counts were performed on the wrong day, the wrong times, and wrong season - A Tuesday, April 2014 that did not include the full commuting window, school hours nor the intensive tourist travel of the summer season weekends. The report states that the supercenter would not have a significant impact on the town and DOT in Raleigh appears to have accepted the report without visiting the site.”
But traffic is only one of the key issues in Swansboro. In May of 2014, the town posted a notice of plans to enact a moratorium on buildings larger than 40,000 s.f. That notice was posted two days before the Walmart developer filed his plans for a superstore. Several days after the plans were filed, the town did pass a size cap moratorium.
Such moratoriums are a common planning tool that town boards use to plan for an orderly built environment. They must be for a time-certain, like six months or a year---but they can lead to a permanent size cap, just as most ordinances limit the height of buildings.
The developer filed a lawsuit last June, which triggered a number of meetings---some public, some not. In fact some members of the town’s Board of Commissioners met in groups of two with the developer to avoid the state’s Open Meeting law. The Mayor, Scott Chadwick, thought the town’s moratorium was properly filed and done, but some Commissioners were concerned that that expense of fighting the Walmart developer’s lawsuit could cost at least $400,000 in legal fees—even if the town won. Someone told the town they could lose as much as $5 million if they lost the litigation.
The town’s planning board voted 2-2 on the project in May—and a tie vote meant the board was not recommending the project. But the Board of Commissioner’s voted in late May 4-1 to approve a 158,000 s.f. superstore and a gas station, and the developer’s lawsuit dissolved into the night, having served its purpose.
Mayor Chadwick tried to defend the end-run around the Open Meeting law by saying the small group meetings were allowed by law and were not an attempt to be covert but to discuss legal matters without giving advantage to the developer Swansboro Investors LLC.
But townspeople knew better. Two members of the Planning Board quit over how this huge project was handled.
“This is the largest commercial project in the history of the town with serious potential effects on traffic, crime control, stormwater runoff and other quality of life issues,” said the Vice Chairman of the Planning Board, who quit. “If ever a project demanded a thoughtful, deliberative planning process involving the town’s citizen advisers, this one was it.”
What you can do: There is a saying here at Sprawl-Busters that “what you can’t get by regulation, get by litigation.”
A developer with deep pockets can just bully a small town with the threat of an expensive lawsuit---win or lose. In this case, a moratorium is legal, and in most states, if a notice is filed of a zoning change before a developer has his final building permit in hand, he is subject to the ordinance that subsequently passes—even if he has already filed his initial plan.
Readers are urged to email Swansboro Mayor Scott Chadwick at firstname.lastname@example.org with the following message:
“Dear Mayor Chadwick,
”Walmart and its developer knew clearly that the residents of tiny Swansboro did not want a huge superstore in their town. This one is about 3 times the size of a football field for a population of less than 3,000 people. Despite this, they chose to bully the town with a lawsuit.
Sam Walton wrote that ‘if a town, for whatever reason, doesn’t want us to go in there, we’re not going to go in and raise a fuss.” Sam Walton is long gone—but pushy developers live on.
The residents of Swansboro who rightfully opposed this project, need a good land use attorney now to challenge the vote of the Commissioners, in clear violation of your moratorium. But they need to act fast, and they need to have abutters file an appeal within 30 days of the decision.”
This is exactly what the developer did when they realized the town might vote them out. Citizens can use the same tactic.