SNOW HILL — In a split decision that mirrored the outcome of a related Planning Commission meeting earlier this summer, the Worcester County Commissioners voted 4-3 in favor of approving a controversial Ocean Pines property re-zoning this week.
“In my mind, I think the best thing happened for the county,” said Commission President Bud Church of the vote to change a roughly 31-acre parcel of land in Ocean Pines from A-1 agricultural to C-2 commercial zoning.
The property, located off Route 589, is owned by Jack Burbage through Burbage/Melson Inc. It has been zoned A-1 for decades, a designation that the county re-affirmed in the latest Comprehensive Plan in 2009. Recently however, Burbage has moved to have the property re-zoned to allow commercial development, specifically a proposed medical campus.
Attorney Hugh Cropper, who represented Burbage/Melson during a public hearing Monday, argued that the commission had made a mistake with the 2009 zoning and that there had been a substantial change in the neighborhood due to the inclusion of slot machines at Ocean Downs race track in 2011 as well as the proposed construction of a 60-unit residential subdivision near the 30.90 acres in question as justification for re-zoning.
“We believe that it’s not appropriate for agriculture and we don’t believe it’s appropriate for residential,” he said of the lot, pushing for a commercial zoning instead.
After two meetings and hours of testimony, Burbage’s application received a favorable recommendation from the Planning Commission earlier this summer, in the first of two contentious 4-3 votes.
The debate over the controversial property resumed this week and, as evidenced by the second 4-3 vote, not all of Church’s colleagues agreed with him on the re-zoning change.
“It was absolute, total bull—-,” said Commissioner Virgil Shockley after the decision.
Shockley, who voted in favor of maintaining the property’s original A-1 designation, was adamant that no legal justification was given for re-zoning the parcel.
“The law is what the law says … there was no finding of fact presented today,” he argued.
As noted by Shockley and confirmed by County Attorney Sonny Bloxom, the only two defensible reasons for the County Commission to ever step in and re-zone a property are the ones that Cropper built his case around: either a mistake was made with the original designation or a “substantial” change to the neighborhood has occurred. However, in Shockley’s opinion, neither point was established during the three-and-a-half hours of testimony and public comments.
“If I was one of the [residents] who was opposed to this, I’d be looking in the Yellow Pages for a lawyer,” he said.
Commissioner Judy Boggs, who represents the Ocean Pines district, was likewise dissatisfied with the reasoning behind the re-zoning.
“I just saw a lot of smoke and mirrors,” she said.
Cropper’s first argument, that there was a mistake with the original zoning, didn’t hold much traction with either the Planning Commission or, most recently, the County Commission.
“There wasn’t a mistake,” said Commission Louise Gulyas, who joined Shockley and Boggs in voting against the re-zoning.
Shockley stated that the commission in 2009, of which he was a part, “knew exactly what we were doing, there was no mistake” when they re-affirmed Burbage’s parcel as A-1.
The second argument made by Cropper that there has been a substantial change in the neighborhood was the one that eventually swayed the majority of both Planning and County Commissioners. Boggs, Shockley and Gulyas, however, maintained that Cropper presented no evidence that a change has occurred in the neighborhood to the point where zoning needs to be adjusted.
“There’s not a change in the neighborhood, yet,” said Gulyas.
Cropper’s case hinged on showing that the recent inclusion of slots at the nearby Ocean Downs extended commercial development in the surrounding areas and the construction of a residential sub-division cumulatively justified upgrading the Burbage property from agricultural to commercial.
Though whether or not a neighborhood has changed is, to a degree, subjective, Shockley contested that as far as legality goes, a racetrack gaining slot machines and a residential community like Ocean Pines spawning a subdivision hardly qualified as change.
“How can you have a change in the neighborhood if, by right, you can do this [within the current zoning]?” he asked. “All of these properties had the correct zoning.”
When questioned, Bloxom did agree that while slots at Ocean Downs may not have been specifically expected, they were covered under the established zoning and therefore hardly a change.
“It’s already allowed in the zoning you all approved in 2009,” he told the commission.
During the meeting Cropper did point out, however, that the new subdivision was not covered under the prior zoning and special approval had to be sought.
“Those are not planned for approval,” he said of the subdivision lots.
But when asked by Shockley, Director of Development, Review and Permits Ed Tudor said that the subdivision is seen by his office as a “natural expansion” of Ocean Pines and thus not a change.
Because it was a public hearing, both sides of the aisle had several witnesses for or against a re-zoning present. Supporting the change was Atlantic General Hospital (AGH), and AGH President Michael Franklin confirmed hopes to take advantage of the proposed medical complex that might be built on the Burbage property.
AGH Vice President of Public Relations Toni Keiser explained that the property is ideally located for a much needed medical complex that could host a variety of offices, especially in children’s healthcare.
“This would allow us to bring in additional pediatric services and medical services directly into the communities,” she said.
In response to a list that includes Berlin, Ocean Pies, Snow Hill, West Ocean City and surrounding areas, Keiser said, “It really is in the center of all of those areas you just mentioned.”
Though unwilling to comment directly on the re-zoning, County Director of Economic Development Bill Badger did say that by re-zoning the property the county would likely see an economic boost and some job creation.
“Any project like this is a welcome addition,” he said.
As part of his case, Cropper also presented a traffic study projecting that congestion on Route 589 would not be unduly burdened by the addition of a commercial complex on the Burbage property. Finally, he brought forth several residents of Ocean Pines including Marvin Steen, Margaret Bunting, and professional surveyor Frank Lynch, all of whom live in close proximity to the property and all of whom agreed that a C-2 designation would be a better fit than an A-1.
As far as Ocean Pines residents however, the turn out in opposition to the re-zoning was much greater than the support, with most agreeing that a commercial development would hurt the character of the neighborhood, as well as generate unwanted traffic, no matter what the traffic study Cropper cited said.
Roughly a dozen residents spoke out against allowing a commercial designation on the property. Resident Carol Schauer said that she “strongly opposed” the alteration.
“We do not need any more commercial development on Route 589,” she said, noting that there are a number of established vacancies near the Burbage property where AGH could look into new medical offices, including an unrelated medical complex located a mile and a half north.
Resident Jeanne Lynch, a former County Commissioner as well as a member of the Planning Commission who was not on the body when it came up with the favorable recommendation for re-zoning, brought up the connection, by way of AGH, that links Burbage, Franklin and Church, and asked that Church recuse himself from the vote.
For the record, Burbage is chair of the AGH Board of Directors while Church serves on the AGH Foundation, the fundraising branch of the hospital. The two entities have little contact and in Bloxom’s legal opinion, there was no need for Church to recuse himself, which he did not. It should also be noted that Gulyas serves on the foundation, though she “hasn’t attended a meeting in almost a year.”
After hearing the testimony, Boggs made a motion that the application for re-zoning be denied since Cropper failed to prove there had been a mistake or change to the neighborhood. Boggs’ motion died, 3-4.
A countermotion was then offered by Commissioner Madison Bunting that the application be approved, with the condition that access to the property not go through King Richard Road. It passed 4-3 with Boggs, Gulyas and Shockley opposed.