A public notice slated for publication in the Smithfield Times’ Nov. 13 print edition states Smithfield’s Town Council will hold a Dec. 3 public hearing on the 130-home Cottages at Battery housing development proposed for 14 acres off Battery Park Road.

On the surface, it’s nothing out of the ordinary. When developers apply for rezoning or special use permits – the latter, in this case, is what Suffolk-based Quality Homes Inc. is requesting – the application undergoes months of vetting by town staff and eventually advances to the Planning Commission, which under state law must hold a public hearing and then vote to advance the matter to the Town Council with either a recommendation for approval or denial.

Once that happens, the process repeats at the council, which is required to hold its own hearing ahead of taking a final vote.

What’s unusual about this particular notice is that the Times received it on Nov. 6, nearly a week before the Planning Commission’s scheduled Nov. 12 hearing, which ordinarily would have to occur before the matter’s advancement to Town Council could be advertised.

According to Town Manager Michael Stallings, the preemptive advertisement doesn’t mean the Planning Commission’s vote to advance the matter to Town Council is a foregone conclusion. In fact, the commissioners voted 5-1 on Nov. 12 to postpone their decision on the Cottages application.

“Any action by the Planning Commission would be at its discretion based on the discussion had at the meeting,” Stallings said.

Rather, the advance notice is the town’s way of coping with a change in state law that would otherwise force Quality Homes to wait until January for its application to appear before the Town Council.

State law has for decades required local governments to solicit public input ahead of approving a developer-requested rezoning or special use permit by advertising a hearing two successive weeks in advance of the scheduled date in a newspaper with general circulation in that locality.

A bill by state Sen. Christopher Head, R-Roanoke, which Gov. Glenn Youngkin signed into law on March 28, now explicitly requires that the second notice appear “no less than seven days before the date of the meeting referenced.” Prior to this year, according to Town Attorney Bill Riddick, the law had allowed the second of the weekly ads to be published six days in advance of the hearing, with the day of the hearing counting as the seventh.

The change poses a challenge for localities like Smithfield, whose newspaper of record publishes weekly on Wednesdays and whose Planning Commission meets on the second Tuesday of each month at 6:30 p.m., hours after the Times’ print edition goes to press.

Had the town waited until after the Nov. 12 Planning Commission meeting to advertise the Town Council hearing, the earliest the required notice could have been published would have been Nov. 20, which is only 13 days prior to the council’s Dec. 3 meeting and would have pushed the matter out more than a month to Jan. 7. Under state law, the council has up to a year to act on a Planning Commission recommendation.

“With the new advertising requirements, we will allow all applicants to have the option of preemptively advertising for both meetings if they so chose,” Stallings said.

Now that the Planning Commission has deferred voting on the Cottages application, the notice will be readvertised for January, Stallings said.

Had the commissioners taken a Nov. 12 vote, scheduling the required council hearing on Dec. 3 would have allowed the council’s sitting members to potentially vote on the Cottages before a slate of newcomers who won seats by campaigning against rapid growth and development take office in January.

At the council’s Nov. 6 meeting, supporters of three first-time candidates who won Town Council seats in the Nov. 5 election urged the body’s sitting members not to vote on any controversial matters until the newcomers take office.

Jim Collins and Raynard Gibbs, whom the council had appointed last December to two then-vacant seats, were the lowest vote-getters in a five-way race for three available four-year terms, and as such will leave office on or before Dec. 31. Mike Smith was the only incumbent reelected and Bill Harris, the third first-time candidate, won his unopposed race for the two-year remainder term Collins is currently filling.

Harris, under state law, could be sworn in and take office as early as the council’s November committee meetings pending the Isle of Wight County Electoral Board’s expected Nov. 12 certification of the election results. But Bebermeyer and Cutler will have to wait until Jan. 1 to assume their seats.

That leaves the council’s current members with just under 50 days to act, or not act, on pending matters.

“Last night, voters made their voices heard in our Town Council race, choosing to bring in  several new members who represent a different vision for our community’s future,” town resident Brandon Henderson told the sitting council members during the portion of the Nov. 6 meeting reserved for public comments. “Given this clear mandate I believe it’s only fair and reasonable that the council refrain from making any significant or consequential decisions until January when the new council members who reflect the will of the people are seated.”

Henderson specifically referenced the Cottages as well as the council’s proposed sale of the town-owned Smithfield Times office at 228 Main St. for 75% of its appraised value for conversion to a food, beverage and entertainment space, on which the council held an Oct. 2 public hearing but has yet to vote. He also referenced the yet-to-be-voted-on $6 million former Smithfield Foods Chairman Joseph Luter III offered in May for the beautification of town-owned right-of-way at Main Street’s intersection with Route 10, where Luter’s son is developing the 267-home Grange at 10Main, conditioned on the town matching the amount dollar for dollar and moving its farmers market to the Grange.

“With two of the current members set to leave office who were appointed rather than elected, pushing through these decisions now would ignore the voice of the people and fail to respect the mandate they’ve given,” Henderson argued.

“I respectfully request that you consider postponing any significant vote until the newly elected council starts its term in six weeks,” said Leah Walker, another resident who in a Sept. 6 letter to the editor of the Times backed Bebermeyer, Cutler, Harris and Smith.

Caroline Gatewood Battenfield and Ginny Soule also spoke during the public comment period to urge inaction until January.

Neither the commission nor the Town Council is required to vote on an application the same day as its public hearing. According to Riddick, the Planning Commission has up to 100 days under state law to advance an application to Town Council before it advances due to inaction with an automatic recommendation for approval. Once it reaches the council, the council has up to a year to act before the application is automatically approved due to inaction.

Editor’s note: This story was updated at 9:39 p.m. on Nov. 12 with the result of the Planning Commission public hearing on the Cottages scheduled for that day.