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Judge Murphy remands curb‑cut and setback waivers for Everton project; Planning Commission schedules March review
Summary
The planning commission discussed a court order from Judge Murphy that remanded two votes from a preliminary Everton site‑plan approval — a curb‑cut waiver and a setback determination — back to the commission for clarification or written findings. The panel voted to place the two items on the March agenda for further consideration.
Kent County Planning Commission members on Feb. 6 reviewed a court remand concerning the Everton industrial preliminary site plan and voted to place the curb‑cut waiver and the Chesterville Bridge Road setback waiver on the commission’s March agenda for additional review.
Planning staff explained that last summer the Planning Commission granted preliminary approval for the Everton site plan; that decision was appealed and heard in December. County counsel said the court — Judge Murphy — found the petitioners’ appeal premature because the matter in December had been a preliminary rather than a final approval. Judge Murphy agreed preliminary site‑plan approvals generally are not final and thus are not ordinarily ripe for appeal.
However, the court identified two recorded votes taken at the December hearing — one granting a 3,000‑foot distance waiver related to curb cuts and another setting a specific setback from Chesterville Bridge Road — and observed that those votes might have functioned as final actions. The court ordered the Planning Commission to clarify whether those two waivers were final decisions or advisory guidance and, if they were final, to issue additional written findings explaining the basis for the approvals.
County staff advised the commission that clarifying the record could take the form of stating that the curb‑cut and setback votes were advisory and would be reconsidered at final site‑plan review, or, if the commission stands by the waivers as final, to place specific reasons and findings on the record and in writing so the court record would show the basis for the approvals. Staff recommended the commission review the December hearing transcript and minutes before making any written findings.
Commissioners and staff agreed the matter merited careful review because whatever the commission decides could generate litigation. A motion was made to place the curb‑cut waiver and the setback waiver back on the commission’s March agenda for further action; the motion was seconded and approved by voice vote. The commission asked staff to provide the December meeting transcripts and minutes and to assemble the record ahead of the March hearing.
The March agenda will include a dedicated item to either (1) state that the two decisions were advisory and will be finalized at the time of final site‑plan approval, with reasons for that preliminary guidance, or (2) adopt written findings that support the prior grant of the curb‑cut and setback waivers. Staff said transcripts and printed minutes are available and will be provided to commissioners; the Everton application will return for final site‑plan review after the litigation is resolved.
