Whites Creek lost a battle but not yet the war

You can bet that these 43 lots are only Phase I.

Community opponents of Ole South development's plan to sprawl 43 suburban-style homes across previously tree-canopied rural properties held a brave stand at yesterday's Planning Commission public hearing, but they had the weight of law and zoning against them. As an outsider-looking-in with a little experience with planning process, it struck me as a long shot to stop Ole South from building a cluster subdivision approved by the Planning Department without any requirement to rezone.

And Ole South did not even bother to have one of their owners speak at the public hearing. Tom White, real estate lawyer and lobbyist, took care of the developers presentation and rebuttal (and Mr. White reserved his right vocally to end the public hearing with a rebuttal several times during his presentation). For their part, dozens and dozens of community opponents rose to speak against the subdivision to a commission that has been described to me as "the most developer-friendly commission in Nashville history".

Commission Chairman James McLean dished a not-so-veiled warning to opponents that he would stop the public hearing if speakers started repeating themselves because the commissioners wanted to get home at a reasonable hour. As if regular folks out in the gallery had not taken time out of their busy schedules, away from their families to sit for hours through other planning business that did not involve them in order to have their 2 minutes to speak their minds at what was ultimately the end of the meeting. As if commissioners have more important things to do than to hear the expressed interests of a Whites Creek community that is watching their character change without much control--beyond the hearing--over it. Given that most commission business involves relatively uncontroversial, unemotional work on planning, I thought Mr. McLean (who is himself a developer) showed little patience, humility or humor with that warning. Who isn't busy in their own personal lives nowadays, Mr. Chairman?

But the opponents stood out by emphasizing plural concerns, admitting and shortening their comments when they sensed that they were repeating what had already been said. The difference in the public presentations for and against could not be more stark. The emphasis from supporters of Ole South was strictly on the legal side of the argument: the company had complied with what zoning requires and they had toed the line Metro planners and CM Walter Hunt set for them, so at bare minimum they deserved to build their cluster lots. Their basic message was that they achieved the lowest common denominators developers have to, and they saw no need to strive for anything higher than their bottom line.

For their part, the opponents of Ole South appealed to a wide range of arguments to make the basic case that they expect development (no one whom I heard expressed NIMBYism), but they wanted something higher than what developers were offering. They appealed to their history, to consistency with the village-like character of Whites Creek, to the idea of quality in building materials, to the common sense notion of fairness that they ought to have the same planning opportunities as other communities, to environmental protection, to a unique and attractive culture comparable with few other places (Bells Bend, Leipers Fork were mentioned), to tourism, to the culture of land and green space and to their diverse community. Their appeals were thick and rich compared to the rather cold, calculated and cynical statements by an attorney who seemed to me ready to pull a trigger on a lawsuit if Ole South did not get commission approval.

Keep in mind that Tom White is the same lawyer who told the Tennessean that the suburban sprawl plan had plenty of community support for passage. The turnout of opponents at the public hearing proved that false. Tom White is also same lawyer who argued at last week's Whites Creek community meeting that he believed commission support for the plan was "highly likely".

This particular statement from the Old South side proved to be true, but not before questions were raised, mostly by commissioner Stewart Clifton, who acknowledged CM Hunt's interest in approving the plan while also asserting his interest in making sure that Ole South was consistent with the properties on the same side of the streets it would sit on. CM Hunt seemed to want to refer the commission to a completely different development rather than consider the streetside consistency. Mr. Clifton wanted to defer until he could get some answers from planning on whether creating 43 plots was consistent with the adjacent properties. Chairman McLean denied Mr. Clifton a vote on a deferral, called for a vote on CM Hunt's motion to approve the Ole South plan (amended to prohibit duplexes) and the commission voted 4-2 to approve.

It is worth noting that Mr. Clifton pointed out that 3 commissioners who "should be" voting on the Ole South bid were not present. One of those was Andree LeQuire, who had sent a request announced to the commission for a deferral of Old South's plan because she wanted more information about the water and sewer infrastructure Ole South was planning. Chairman McLean waved all of that off before holding the vote to approve.

But there is another significant, but understated fallout from this hearing. During Mr. Clifton's questions, Planning Director Rick Bernhardt noted that the commission had asked for urban character infill regulations but had not requested rural character infill regulations from planners. It was acknowledged that Ole South's approval hinged on old, outdated zoning regs and that there was a lack of infill regs for agricultural communities. After the vote, Mr. Bernhardt asked the commission whether they wanted Planning to pursue those regulations and I did not hear much of a response. Might this be where a concerned Whites Creek community can wage their next battle for growth consistent their community character? They lost this battle, but there still seems to me a war to wage in defense of their way of life. Ole South's holdings in Whites Creek are much larger and perhaps Metro Planning needs more prompting for infill regulations before the developers completely suburbanize backcountry.

In the end, this proposal was CM Walter Hunt's to lose. As ugly as the Whites Creek community meeting was, as impressive as the turnout to the public hearing was, CM Hunt seemed to have Metro planners (in fairness, Planning's hands seemed tied) and commission votes on his side. He did not need to do much compromising with constituents to get approval. Having a land holdings lawyer pounding away on what was legal from the podium is also effective leverage, given that Metro is likely not looking to get caught up in one more lawsuit. While CM Hunt promised to have a historical survey of the properties conducted (no traffic study has been done), I was disappointed myself that he did not at least extend an offer to opponents to start working to revise their outdated community plan, which is a reasonable request regardless of Ole South.

Moreover, take a look at how CM Hunt's campaign for office has been the beneficiary of donors with direct interests in land development, construction, new housing starts and housing market. Follow the money form some of the donors I culled from his campaign finance records since 2011:

• Robert Colson, real estate broker and property auctioneer ($100)
• Tom Cone, Sr., owner of Cone Oil convenience stores ($1,000)
• Roy Dale, engineer to developers ($250)
• Howard Eley, Jr., highways and ramps contractor ($250)
• Joe Hall, lobbyist for cable telecommunications assc. ($200)
• Ronald Ligon, Realtor ($500) and Susan Ligon ($500)
• Alexander Marks, developer ($250)
• William Massey, Jr., electrical contractor ($100)
• Jim McLean, developer and Planning Commission Chair ($100)
• Gregory Richardson, developer ($500)
• John Ring, developer ($500)
• Glen Wallis, Realtor ($100)
• L.H. Hardaway, Jr. construction company owner ($100)
• William Freeman, real estate investment company owner ($100)
• James Smith, developer ($250)
• Bernard Werthan, developer ($100)
• Feller Brown, realty and auction company owner ($100)
• Odell Binkley, waste management ($100)
• H.G. Hill Realty, PAC ($100)
• Tennessee Realtors, PAC ($250)
• Precision Plumbing, Whites Creek ($1,000)

That kind of money is more incentive to shepherd subdivision plans through rather than incorporate community concerns if one is not required to. This list is something for the rest of us to keep in mind should CM Hunt run for at-Large council in the future. He may be our council member someday.

But there is also something else to keep in mind as far as I am concerned. One of the supporters of Ole South said during last night's public hearing, "Whatever Walter Hunt wants, Walter Hunt should get." That prospect itself is troubling given campaign finance, because it won't be just what Walter Hunt wants. It will also be what his most influential campaign donors want.

And those of us without the money (or the community organization) to keep up with his donors will likely be left behind.