Waynesville officials ignore board term limits

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Waynesville officials ignore board term limits

The Town of Waynesville is currently seeking applicants for the Zoning Board of Adjustment. File photo

Two members of Waynesville’s Zoning Board of Adjustment were improperly appointed by Town Council in violation of the town’s own term limits policy, a Smoky Mountain News investigation has found.

Created in 1958, the ZBA is a quasi-judicial board that hears appeals and variance requests related to land development standards. It meets monthly if needed and consists of five members and three alternates who serve three-year terms.

There are nine such town boards, covering everything from parks to planning to public art, with some dormant or only sporadically active but others quite busy.

According to the Town of Waynesville Board/Commission Manual, on July 12, 2018, the then-Board of Aldermen — now called Town Council — limited its various advisory board and commission members to three consecutive terms.

However, commission-specific information included in the manual for nearly all states, “The Board of Aldermen approved the extension of the terms of the Boards and Commissions to three (3) three-year terms, retroactive to 2013.”

That means anyone serving in 2013 or after would be subject to the three-term rule. This minor yet significant adjustment to the three-term rule, perhaps relevant at the time, is becoming less so as time goes by, but it still exists and was apparently overlooked in two cases — ZBA members Henry Kidder and Joshua Morgan, who serves as chair.

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Morgan has been under fire since a recent judicial order found him responsible for the “improper use of governmental authority” in withholding public records at Shining Rock Classical Academy, where since 2018 he has served as head of school.

Some have called for Morgan’s removal from the ZBA on that basis alone, but council members who responded to an SMN inquiry offered varying degrees of defense for Morgan.

The incidents, dating back to 2019, were covered heavily at the time by SMN.

Council member Anthony Sutton said he wasn’t aware of the allegations made against Morgan during Morgan’s 2022 reappointment and noted that on the ZBA, Morgan has no authority over public records fulfillment like he does at SRCA.

“I will continue to monitor the situation closely and will take appropriate action, when necessary, up to and including asking for his resignation,” Sutton said.

Jon Feichter, another member of Council, said he didn’t recall seeing that coverage at the time make the connection from Morgan the school principal to Morgan the ZBA applicant.

“As for his continued service on the Zoning Board of Adjustment, adherence to public records laws is non-negotiable. By that standard, what happened at Shining Rock was clearly wrong. I believe the actions taken there — by Josh Morgan and others — amounted to what the court described as ‘an improper use of governmental authority that restricted access to public records and information,’” said Feichter. “However, to my knowledge he has served honorably on the ZBA for many years, and as long as that continues, he has my support.”

But Chuck Dickson, a Council member and former town attorney himself, provided the strongest defense of Morgan, saying that although the allegations the court later found to be true were publicly known before Morgan’s third and fourth term reappointments, absent a judicial order they meant little to him. Dickson also said that he was not of the opinion that Morgan is “morally or ethically unfit to serve because of his erroneous interpretation of the public records statutes.”

Morgan’s interpretation of public records laws may have been erroneous, but according to the court ruling, he had acted with specific intent when he and others “ … implemented Shining Rock’s formalized public records response protocol and applied it to Fitzgibbon’s public records requests with the intended purpose of stopping or inhibiting Fitzgibbon’s submission of public records requests to Shining Rock.”

First appointed to the ZBA on July 12, 2016, Morgan was subsequently reappointed on June 25, 2019, and then on July 26, 2022. That should have been his last term, set to expire on June 30, 2025, however a last-minute addition to the consent agenda on June 10, 2025, listed Morgan as an applicant to the ZBA.

Morgan dated his ZBA reappointment application March 4, 2025, in clear violation of the town’s policy manual that sets the legal guardrails for the board he chairs.

The consent agenda passed unanimously without discussion, giving Morgan a fourth three-year term through June 30, 2028.

Council Members have the authority to override the three-term limit “when they deem the circumstances of an individual’s service to the community to be of such notable importance as to warrant a continuation of service,” but that’s not what happened with Morgan.

When someone’s service to the community is of such notable importance, any council member may nominate the individual to another term and “state that they believe special circumstance to warrant a continuation of service.”

As Morgan’s fourth appointment to the ZBA on June 10 was part of the consent agenda and was passed without any discussion whatsoever, no member of council stated any reason why Morgan’s service was of “such notable importance” as to warrant a continuation of that service for a fourth term, nor is any such statement included in the advisory board reappointment packet.

A similar situation appears to have taken place with Henry Kidder, who was first appointed to the ZBA on June 23, 2015, according to meeting minutes.

SMN was unable to locate any published minutes denoting Kidder’s reappointment to a second term, which would have occurred sometime near the middle of 2018; however, a ZBA agenda from Sept. 4, 2018, records his elevation to chair upon the resignation of Neal Ensley, who had served on the board since 2002.

A July 27, 2021, Board of Alderman agenda lists Kidder as one of more than two dozen people seeking appointment to one of the town’s various advisory boards, and indicates a motion passed reappointing Kidder to the ZBA with a term ending June 30, 2024.

That should have been it for Kidder; however, video from the June 11, 2024, Town Council agenda shows Council approving a motion reappointing several members to the Planning Board, the ABC Board, the Waynesville Housing Authority and the ZBA.

No names were mentioned by council or in supporting documents, and minutes from 2024 are not published in the town’s publicly available document repositories, but the reappointments apparently included Kidder, as he’s noted in ZBA meeting agendas and minutes well after his third term expired on June 30, 2024 — starting with the July 2, 2024, ZBA meeting and continuing through the most recent May 6, 2025, meeting.

The required statement explaining why Kidder’s service was “of such notable importance as to warrant a continuation of service” was not included with any meeting materials, nor was such a statement uttered by any member of Council during the meeting.

As it turns out, Kidder’s service may not have been notable enough to warrant such a statement.

During a Feb. 6, 2024, meeting of the ZBA, Kidder was the lone holdout on a relatively straightforward request to subdivide a single lot so developers could build an affordably priced long-term rental duplex. In a region with a longstanding, well-documented affordable housing crisis, Kidder had apparently been unaware of the problem throughout nearly a decade of service on the ZBA.

“What is the affordable housing shortage?” Kidder asked during the meeting.

“Have you read the papers lately?” then-Chair George Escaravage shot back.

Later, Kidder revealed that he was also unaware of the existence of the town’s comprehensive land use plan, which guides nearly all land use and development within the town. Per statute, as a condition of being allowed to adopt and enforce zoning regulations, local governments must “maintain a comprehensive plan or land-use plan.”

The most recent plan was adopted during Kidder’s second term on the ZBA, after more than two years of heavy media coverage, public hearings and input from community members. On Sept. 8, 2020, the new plan replaced a longstanding predecessor plan that had been implemented well before Kidder’s first term.

“That’s not a law, that’s a plan, right?” Kidder continued. “So we shouldn’t consider that. We should only consider the [town’s land development standards].”

Despite the improper appointments, it’s possible Kidder and Morgan remain on the ZBA indefinitely. In accordance with General Statute 160A-62, “All city officers, whether elected or appointed, shall continue to hold office until their successors are chosen and qualified.”

The town’s policy manual, however, conflicts with that statute in that it proscribes procedures for “when a vacancy occurs on a board or commission due to a resignation or the end of a three (3) year term” — specifically including in the definition of “vacancy” both resignations and the end of a three-year term.

When a vacancy does occur, “the Town Clerk’s office should be notified by the chair of that board or commission as soon as possible,” according to the manual. It’s not known if the chair of the ZBA, Morgan, complied with this provision by informing the clerk that a vacancy existed due to his third term ending on June 30.

The next meeting of the ZBA is scheduled for Tuesday, Aug. 5. An agenda has not been published as of press time on Tuesday, July 29, but there have been no public calls for the resignations of Kidder and Morgan from town officials, and the town has given no indication the meeting won’t proceed as normal — with Kidder and Morgan continuing to serve beyond the limits imposed in town policy.

Generally, Council can remove members from boards at will, except for the ZBA, meaning the only remedy to the situation short of resignations or the nomination of new members would be to initiate removal “for cause,” which would involve a public hearing where those causes are outlined and an opportunity for the board member in question to be heard.

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