Landowner’s Rights Versus Subdivision Developer Highlighted In Rezoning Case

Jimmy Whitley (standing) appeared before Johnston County Commissioners Monday night asking for a special use permit to allow for a sand mine operation on 60 acres of land in the Brogden Community adjacent to the Charlestowne subdivision. Commissioner Chad Stewart looks on. Photo

Should a landowner be able to use his land as he wishes or should an adjacent landowner and subdivision developers concerns trump his rights?

The issue played out during a three hour public hearing Monday night before Johnston County Commissioners.

Jimmy and Sylvia Whitley requested in April permission to rezone 60 acres of land out two tracts of land totaling 92.2 acres on Grabtown Road off Brogden Road, east of Smithfield for a sand mining operation.  Mr. Whitley said after Hurricane Matthew in 2016 he began contracting with the NC Department of Transportation to repair storm damaged roadways. He was able to take dirt from the Brogden community land he owns to help fill in areas that had washed away.

Whitley said the sand was not for sale publicly and he only had 4 trucks in use from 6:30am until 5:00pm weekdays with no work on weekends.

Whitley told commissioners he only planned to mine 7 to 8 acres of the site.

Terry Parker of Four Oaks owns the adjacent property and has developed the first of three phases of the Charlestowne subdivision.  Parker testified Monday night no one wants to buy a home next to a sand mine and the rezoning would damage his property and land values.  A land appraiser from Clinton also testified it would devalue the existing subdivision and adjoining property.  The appraiser, Alan McCullen, expressed concern about noise, truck traffic and safety.

Michael Worley of Smithfield, a general contractor, testified he was beginning work on 23 new homes in Phase 2 of Charlestowne and he had paid Parker $2,500 for the rights to Phase 3 of the subdivision which adjoins the Whitley property.

Like Parker the landowner, Worley also testified no one would want to buy a home next to a sand mine. Worley said he would void his option on Phase 3 if the sand mine was approved.

Johnston County Planning Director Berry Gray said plans for Phase 3 had not been submitted to Johnston County for review. However, Lew Starling, an attorney for Parker, called upon surveyor Linwood Byrd as a witness who presented maps of Phase 1 and 2 of Charlestowne subdivision showing where water lines had been stubbed out for the yet to be built third phase.

During a public comments section, several neighbors testified for both Whitley and Parker, including Amy Robbins Rogers who said she was not siding with either party but said she had no problems with the existing sand mine operation or noise level.  However, another neighbor Tara Fields said she was concerned about increased traffic coming out of the sand mine and damage to the secondary roads in the area from heavy trucks.

Nelda Creech said the sand mine could not create any more traffic than the Charlestowne subdivision was already creating.

Following three hours of testimony, in a 4-to-2 vote, commissioners approved a special use permit allowing the mine to operate but placed several conditions on the Whitley’s. The sand mine will be limited to 50 trucks per day and a 4 year time limit.   Also, a vegetative buffer including trees must be planted along a pathway closest to the subdivision.

Commissioner Chairman Jeff Carver and Vice Chairman Ted Godwin were the two board members who voted against the special use permit.