Raleigh's elected officials voted 6-1 earlier this month to allow a charter school to build inside a natural resource buffer designed to protect the water quality of Falls Lake. The decision marks the city's first-ever exemption to protections established in the 1980s to control stormwater flooding and protect the city's drinking source.
"This is not a good precedent," said Councilor Thomas Crowder, the only negative vote.
Natural resource buffers restrict development within 100 feet of dry channels and intermittent streams, which help prevent erosion and naturally filter dirt and pollutants—such as nitrogen—from water that eventually drains into Falls Lake. They provide an additional protection beyond the state's required 50-foot riparian buffers, which surround water sources within protected watershed areas.
Raleigh's city code allows such an exemption in cases where "strict adherence to the provisions of the chapter will result in unnecessary hardship or create practical difficulties." Yet, in more than 20 years, officials have never approved one.
In September 2008, Raleigh-based Ocean Development Group petitioned for the exemption to build a new site for Quest Academy, a charter school. Adhering to the city's buffers would cost more money and create more environmental disturbance than a plan that did not follow stormwater regulations, the developers argued.
"No government body is smart enough to develop ordinances that are going to be 100 percent the best thing for the environment, 100 percent of the time, on every single individual piece of property," said Robert Jackson, co-manager of Ocean Development Group.
According to minutes from a Dec. 10 Comprehensive Planning Committee meeting, school Principal Charles Watson—who did not return calls and e-mails—implied that a site plan adhering to the buffer requirements potentially endangered children because it called for a retention pond close to the school. He also argued that conforming to regulations would cost an additional $200,000 and "could be the end of the school," which is currently located on Strickland Road, less than a mile away from the proposed Six Forks Road site.
Yet Crowder questioned this logic, arguing that cost alone does not prove unnecessary hardship. The proposed site, which is roughly 4.3 acres, already contains two houses and would not be rendered useless without a variance. Ocean Development holds an option to purchase the land, though Jackson declined to disclose the terms of the deal.
The developers pitched a plan containing a variance to the Stormwater Management Advisory Committee and the Comprehensive Planning Committee. Both recommended a variance, though the CPC initially voted against it—as a reasonable alternative to a "non-variance plan," due to lower construction costs and less intensive grading. Despite these arguments, which were the basis of the boards' decisions, developers never presented a site plan that met watershed code, either at a public meeting or for review by staff in the public works and planning departments, according to officials.
"It was stated as such to City Council that we hadn't seen the alternate plan, and it was up to their discretion to direct the applicant to submit the alternate plan, but it wasn't done," said Ben Brown, the city's stormwater development supervisor.
Councilor Nancy McFarlane, who chairs the CPC, said the council had enough information.
"For the questions we needed to ask, for the purpose of establishing practical difficulty, we felt like we had the answers," she said.
Those answers included a set of nine stipulations, presented by the neighboring Wyndham Homeowners' Association, that Ocean Development agreed to—but only if the council granted the variance. The stipulations included more stringent monitoring during construction and a larger stormwater retention pond, which will manage water from adjacent properties in addition to the school's own property.
"It was my job to choose between A and B," said McFarlane. "The A plan was better for the environment, it was better for the Neuse River, the neighbors were happy—almost all the neighbors. Everybody is not going to be happy."
Yet Crowder characterized the choices Ocean Development provided as "trying to put a square peg in a round hole."
"When you're presented with an either/or scenario, saying that you either approve this or the worst case—there are other alternatives to addressing things," Crowder said, citing subterranean draining or low-density development that would not encroach on the buffer.
Upper Neuse Riverkeeper Alissa Bierma said while she would prefer no development, a retention pond, if built and maintained properly, has the potential to provide better water treatment and runoff control than the current natural resource buffer.
"If the school is going to go on that property, then in terms of being better for water quality, and I think in terms of meeting the intent of that ordinance, then the plan with the variance is the superior plan," she said.
Crowder said he has "severe reservations" with that assessment, citing the upkeep that will be necessary for the stormwater retention pond, which he said will cost taxpayers in the long run, and the precedent it will set for other developers to request variances on land that's protected by environmental regulations.
Once Ocean Development finalizes its purchase of the property, it will submit the school site plan to the inspections department to review the building's implementation, not the logic of building it. Because a school constitutes an approved use under the property's rural-residential zoning, it will not come before any further public review.
"Not only will they get this, but this sets precedent," said Tom Kittinger, a resident of the nearby Wyndham subdivision who dissented from the homeowners' association's approval. "We're afraid that it'll be a stack of dominos."