<p>City of Union Planning & Zoning Commission</p><p>500 E. Locust Street </p><p>Union, MO 63084</p><p> </p><p>City of Union Board of Aldermen</p><p>500 East Locust Street</p><p>Union, MO 63084</p><p> </p><p>Re:<strong><em>Proposed Rezoning in Birch Creek Subdivision</em></strong></p><p>GJTBS File No. SL9992-0034</p><p> </p><p>Dear Members of the Union Planning and Zoning Commission and Board of Alderman,</p><p> </p><p>I am writing on behalf of approximately 50 homeowners in the Birch Creek Subdivision in regard to a new developer's plan to radically alter the scope, use, intensity, density, lot configuration of said subdivision and thus detrimentally impact my client's property values and enjoyment, not to mention erase their good faith expectations based on formal agreements from over ten years ago. Indeed, Mr. Bequette's planned alteration is the subject of pending litigation in Franklin County Circuit Court based on Bequette Construction's self-serving plans to ignore existing private agreements and unilaterally degrade the quality of construction, neighborhood aesthetics and harmony for alleged profitability. Of course, this short-sighted development scheme comes at the cost of the existing homeowners who already invested their hard-earned savings in "dream homes" which stabilized the tax base of an otherwise unproductive plot of land removed from Union's main development.</p><p> </p><p>Now, not only has Bequette Construction eschewed the Covenants which bound the homeowners for over a decade in Birch Creek and served as the foundation for all reasonable expectations for future development, but it seeks to further erode my clients' quality of life and property values by doubling the number of lots in the very center of the subdivision by halving them to approximately 15,000 square feet. Not only is this planned alteration a "slap in the face" of those who invested their time, energy and savings into making Birch Creek what it is - a beautiful place to live within Union - but it also violates existing City zoning code ordinances, both procedural and substantive. As a member of a planning commission myself, and after consulting with several planning experts, it is clear from a review of the Union planning code that the suggested alterations planned by Bequette Construction should meet with disapproval by these bodies. We strongly urge the Planning and Zoning Commission and Board of Alderman to soundly reject this dangerous exploitation and "zero sum game".</p><p> </p><p>My clients only recently learned of the planned sub dividing of central lots (now approximately sixteen 30,000 square foot undeveloped parcels). So, we are quickly seeking the testimony of a MAI certified appraiser who will undoubtedly testify that the end result of any planned re-zoning and subsequent construction of 1400 square foot homes immediately adjacent to existing homes will negatively impact those existing homes (some valued in the seven figures) to such a large degree that the zoning scheme will certainly qualify as achieving a "disparate impact" on my clients as opposed to other members of the Union citizenry. And what benefit will this increase in intensity, use, density, traffic, noise, dangerous sight lines, congested parking, diminished aesthetics, and other impacts have on the community? The answer is simple: none. Tax revenue will not increase from the increase in small, modest housing which reportedly may be subsidized by federal entities like HUD. In fact, the decrease in appraised value of the existing homes will more than cancel any slight increases based on simply selling more units. </p><p> </p><p>The City Code section 405.600(6) asks these bodies to consider the various characteristics of the existing development in comparison to the planned changes. After contemplating the existing Planned Unit Development (currently zoned for R-1 residential) there can be no reasonable doubt that Bequette Construction's planned zoning alteration will severely and negatively impact the existing zoning characteristics and thus deem the planned changes "major modifications" per Section 405.617. Apart from the financial hardship occasioned by the inconsistent development, by doubling the lot intensity of Birch Creek, every negative consequence of that increased intensity doubles as well. Traffic, noise, street use and additional cut ins, emergency vehicle access, differing types of units, reduced sight lines, parking and congestion will all create deleterious situations to the existing usage, enjoyment, safety and infrastructure taxation. Further, § 405.595(B)(10) requires that Bequette Construction incorporate the substance of the Covenants into the PUD and the PUD so submitted does not even reference the recorded Birch Creek Covenants.</p><p> </p><p>Of course, we understand that these bodies are within their rights to consider factors outside of the existing residents' vantage point, but, taken as a whole, Bequette Construction’s overarching development plans are problematic on a variety of legal levels, both civilly, administratively and procedurally. Although the City of Union is not bound by the private covenants which govern the Birch Creek development, the pending litigation points out how Bequette Construction, as the new developer and owner of many lots, has violated substantial elements of those covenants as a matter of contract law and tortious interference with my clients' good faith expectations of fair dealing when they bargained with the original developer. Indeed the Supreme Court of Missouri has recognized that such flagrant violations of the lot owners good faith expectations is actionable and prohibited under the types of circumstances we see here. Bequette Construction has taken no steps to independently evaluate the impact of his planned development to the existing owners, including maintaining the "harmony" of design and building materials, style, configuration and aesthetics as called for by the covenants. In fact, the new construction currently at issue fails to meet with the basic requirements of the covenants and other violations show how this one-sided behavior impacts the residents.</p><p> </p><p>Beyond my clients' civil claims against Bequette Construction, procedurally this after-the-fact extreme rezoning is highly irregular and procedurally deficient. Birch Creek, as a PUD, should not be considered a candidate for rezoning based on the clear provisions of the City Code. Bequette Construction seeks to re-plat two existing, final plats that were adopted by these bodies in 2004 and 2006. The code only contemplates a 2 year period of time for potential re-zoning and even then only during the "area plan" stage or the "final site plan" stage. These windows for review obviously closed many years ago. My clients could not possibly have foreseen the ability to retroactively double the lot number - a major modification - this late into their investment.</p><p> </p><p>The proposed new lots do not conform with the R-1 zoning standards as they contain too few square feet and are configured in such a way as to not accommodate the necessary building lines, setbacks and other R-1 requirements. In fact, the lot width of the proposed lots shorts more than fifteen feet below the standard 90 feet width at building line. The procedural deficiencies and substantive zoning failings, coupled with the obvious and significant hardship to existing owners should merit a denial of Bequette Construction's planned re-zoning. </p><p> </p><p>My clients have joined in signing an objection letter to the proposed changes per R.O. 2012 § 405.860(B); Ord. No. 3200 § 1, 2-12-2007 and we simply hope that the Boards consider their fellow citizens' strong opposition and common sense in denying the proposed alterations to Birch Creek as proposed.</p><p>Sincerely,</p><p> </p><p> </p><p> </p><p>Scott B. Mueller</p><p> </p><p>SBM:ras</p>
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