Zoning snafu means redo in Waynesville
The Town of Waynesville dropped the ball on a minor procedural change to how some zoning decisions are made, but at least taxpayers won’t be left holding the bag.
“I had never heard of it in my in-service training,” said Waynesville Town Manager Rob Hites. “Amie [Owens, assistant town manager] and I went to the manager’s meetings. We never heard of this statute. We didn’t catch it, our attorneys didn’t catch it. None of us, through our professional associations, caught it.”
Development Services Director Elizabeth Teague didn’t catch the legislative change either, but regardless of who is ultimately to blame the town will now undertake a total restart on five zoning actions that occurred after Session Law 2017-10 took effect on Oct. 1, 2017.
Those decisions, which include the controversial Plott Creek apartment complex, were compliant with the spirit of existing law as had been understood by the town at the time, but weren’t strictly in compliance with the new legislation.
“You [now] have to state in the motion the rationale for a zoning amendment,” Hites said. “That can be a text amendment, it can be a change in zone from one to another, it can be dimensional changes, like we just did to some mobile homes.”
Waynesville Mayor Gavin Brown always asks aldermen for their rationale before they vote — on every issue, not just zoning matters — but now, that rationale, for or against, must be included within the motion itself.
A special meeting called for Aug. 21 took 17 minutes to restart the entire process on approving four text amendments — relating to mobile home design standards, mobile homes on individual lots, monopole towers and the Plott Creek complex — as well as one map amendment rezoning two parcels on Broadview Road.
The gravamen of the five unanimous motions passed that day were “… due to the omission of an express reference to the board’s reasons that the board discussed in the motion to find the amendment was consistent with the land use plan …”
Without the restart, a suit could be filed against the town, and the only certain outcome of such a suit would be wasted time, and wasted money.
“A judge could say, ‘Look, I’ve read the record, you folks have done everything that the statute wanted you to, and I’m going to rule in your favor because you carried out the spirit of the law,’” Hites said. “But you could also have a judge or an appellate court say, ‘You know, I’m so sorry, you did everything you were supposed to do but the statute specifically says you didn’t,’ and we’re out $40,000 and a year.”
Public hearings have yet to be called for the text and map amendments, because all the usual paperwork and public notice requirements, including publication and signage, come first. And while that will involve some staff time as well as some money, it’s all far less than even one suit.
“What we did is legal until a judge overturns it and tells us to do something else. We don’t know whether a judge will or will not overturn it, but we believe it makes sense not to go through all that in case a judge will not side with us. This is just saving money and time,” he said. “Until that time, the former action is legal, because nobody said it’s not. So we’re not admitting in any way that anything we did was illegal, the only thing we believe is that it doesn’t follow the exact word-for-word language of that statute.”
How it happened
“All local governments have — or potentially should have — changed the way they make zoning decisions,” said Ken Bowers, director of planning for the City of Raleigh.
Bowers also serves as the president of the North Carolina Chapter of the American Planners Association, and said his Raleigh office wasn’t caught off-guard.
“To my knowledge, I and everyone else in the planning community found out after it was law,” he said. “There’s a large listserv for planners across the state. It was discussed there, and it was certainly a topic of conversation at the state planning conference in Greenville in early October. We do an update for members on past legislation, and usually partner with the UNC School of Government.”
The UNC School of Government publishes a comprehensive and influential blog called “Coates’ Cannons,” named after UNC Institute of Government founder Albert Coates; there, professors regularly explain and opine on a plethora of public interest and municipal topics, like zoning.
On June 20, 2017, Gladys Hall Coates Professor of Public Law and Government David W. Owens published a 1,700-word entry titled A Statutory Modification for Plan Consistency Statements that dealt specifically with the issue.
The North Carolina Home Builders Association published a similar piece on the proposed changes long before they became law.
Situations like this demonstrate the importance of professional associations and public interest advocacy groups in spreading the word and offering advice on such matters, and that’s especially so in this case.
The provision is tucked into a 44-page bill with nearly 50 separate and unrelated items of note, including minor changes to mortgage notice requirements, private drinking water well permit requirements, privacy policies at the state’s Wildlife Resources Commission, recycling programs in local schools, definitions of antique automobiles and even the regulation of certain reptiles.
Nevertheless, other Haywood County municipalities picked up on the change.
“As with most things in Maggie Valley, it was a total team effort,” said Maggie Valley Town Manager Nathan Clark, a former planner himself. “Our town attorney, town clerk and town planner all played a valuable role in ensuring our compliance. Their knowledge comes from interaction with UNC School of Government, North Carolina League of Municipalities and each individual’s professional organization.”
Canton’s Town Manager Jason Burrell said that the town hadn’t undertaken anything since Oct. 1 that would have been affected by the change in law, but if it had, it would have been ready.
That leaves only the Town of Waynesville, which has of late seen considerably more development and zoning action than Canton or Maggie Valley has, but doesn’t have the staff or resources of a city the size of Raleigh that could keep up with rapid-fire changes in law that affect many aspects of municipal government each year.