Monday, November 4, 2024

No-go on development moratorium in Brunswick County, officials cite legal concerns

Though a development moratorium has been floated in recent months by both a county leader and resident input, Monday night it failed to move forward. (Courtesy Port City Daily)

BRUNSWICK COUNTY — Though a development moratorium has been floated in recent months by both a county leader and resident input, Monday night it failed to move forward.

READ MORE: ‘Grab of power by Brunswick County’: Southport leaders scoff at new EMS agreement

ALSO: Brunswick County commissioner proposes development moratorium

Chair Randy Thompson raised a motion Monday’s Brunswick County commissioner meeting for staff to prepare information for an imminent 120-day development moratorium due to issues including strained water and wastewater capacity, flooding and stormwater management, and the adequacy of the county’s emergency services. 

He raised a similar motion last month after Tropical Storm Debbie and Potential Tropical Cyclone 8 caused severe infrastructure damage and more than 900,000 gallons of wastewater discharges in the county.

Thompson’s move has come after many residents in Brunswick County have raised concerns that fast-paced development has outstripped infrastructure needs. 

However, after Thompson’s motion — which was not seconded — county leaders expressed concern the action would make the county vulnerable to expensive litigation.

Commissioner Pat Sykes said she was in favor of a “short break” but concerned about potential second-hand consequences.

“When it affects all businesses and everything else that could hurt just as bad,” Sykes said.

A development moratorium would affect builders and developers but also impact a range of other industries, from electricians to plumbers.

Thompson raised a second motion requesting staff present the board with a development moratorium to vote on in the near future. Sykes seconded and said she’d be interested in what staff brings forward, but commissioners Mike Forte, Frank Williams, and Marty Cooke voted against it due to making the county vulnerable to lawsuits.

St. James mayor Jean Toner expressed disappointment in commissioners’ decision.

“I’m sure you can get various legal opinions,” she said. “But others have done it and it’s for public safety. We certainly have flooding issues and we have significant issues with the provision of fire services in the county.”

The General Assembly amended statutes in 2005 to set specific rules regarding local governments’ authorization of development moratorium in G.S. 160D-107.

Though UNC professor of public law and government Adam Lovelady told Port City Daily he could not weigh in on Brunswick’s decision, he referred to a blog post he wrote about the statute to answer questions about the legality of development moratoria in North Carolina.

Lovelady’s blog noted the general statute gives residential development protection from moratoria used to amend plans or regulations. However, he wrote the statute still seems to give discretion to local governments to establish moratoria if a community lacks water and sewer capacity to support new growth.

“There’s lots of communities across the state facing similar challenges and considering moratoria,” Lovelady said. “Some in the western part of the state are considering them because of storm impacts.”

Belmont, a small suburban city in Gaston County, established a 2.5 year moratorium on residential development in its South Point area due to sewer capacity concerns earlier this month. 

Brunswick faced a short-term development pause in June 2019 after the Department of Environmental Quality issued a three-month sewer line moratorium at Brunswick’s northern wastewater treatment plant. DEQ issued a violation to the plant for operating at 110% of state-permitted capacity — it was only permitted to treat 2.475 million gallons a day of wastewater at the time. To facilitate infrastructure demands posed by Brunswick’s rapid population growth, the county’s wastewater master plan aims to quadruple that figure to a capacity of 8.725 million gallons a day by 2025.

Brunswick spokesperson Meagan Kascsak disputed arguments that discharges caused by Tropical Storm Debbie in August were related to capacity. She added several capital projects planned are underway to expand capacity at five wastewater plants by a total of 11 million gallons per day. 

“With the amount of rainfall this area received during the storm, it likely would have caused issues for any wastewater plant regardless of its capacity,” she told Port City Daily in August. “Brunswick County Public Utilities staff actively monitored the influent flows at all our wastewater treatment pump stations and treatment facilities during and after the storm to minimize sanitary sewer overflows.” 

Brunswick County attorney Bryan Batton attached Lovelady’s blog post in a synopsis of the law provided to commissioners. He argued commercial and industrial moratoria are legal, but residential moratoria are only theoretically allowed to address “imminent” health and safety issues. 

The statute Lovelady cited regarding residential moratoria, G.S. 160D-107(a), states moratoria must be “reasonable” in length but does not specify they must be justified by an imminent threat.

Development moratoria require public notice and legislative hearing, with the exception of “cases of imminent and substantial threat to public health or safety,” according to the general statute. A range of projects are exempt from moratoria, including those with a valid building permit unless there is an imminent health and safety risk.

County manager Steve Stone said Monday he does not believe Brunswick’s current issues meet the narrow definition of “imminent.” He instead recommended the county continue to evaluate the feasibility of a moratorium and amend stormwater rules to require systems to handle 100-year storm events; a motion for staff to craft a stormwater text amendment unanimously passed.

The statute requires local governments to determine the length a moratorium must be to address specific concerns, alternatives considered and why they would not work, and specific development approvals subject to the moratorium. The statute also provides expedited judicial review to individuals aggrieved by the moratorium

“Use of temporary development moratoria is not rare in North Carolina, but they have not been adopted routinely,” retired UNC professor David Owens wrote in a 2023 blog post. “Nearly 20 percent of the state’s cities and counties responding to a 2008 School of Government survey reported adoption of a moratorium in the previous three years.”

Brunswick Conservation Partnership founder Christie Marek requested a moratorium at the August planning board meeting. She told Port City Daily Wednesday she believes Brunswick County staff misinterpreted legal stipulations for moratoria.

“They are our commissioners,” she said. “They shouldn’t come to a meeting asking ‘can we?’ They should find out before the meeting and do their own research. I have even sent them the state guidelines and general statute.”

Marek cited wastewater discharges in the county after Potential Tropical Cyclone 8 to argue the county needs more time to ensure infrastructure can meet demand.

According to the Environmental Protection Agency, wastewater overflows can be caused by a range of issues including overcapacity. A December 2023 study carried out by contractor Remington & Vernick Engineers found the county’s wastewater utilities had “limited to no available capacity” to serve both existing and new customers.

“I have been told through wastewater management employees past and present that our pumps are at capacity,” she said at the August meeting. “That every time they get them caught up, another housing development is approved. We need a moratorium now.” 

Brunswick County NAACP president Carl Parker Sr. has repeatedly raised concerns that minority and low-income communities throughout the county are disconnected from water and sewer infrastructure; he told PCD many of the wells are collapsing and unable to function. In response to Parker and other residents, Thompson urged county staff to prioritize applications for the state revolving water fund grant to expand access at the December commissioner meeting. 

Stone also recommended the county alter its fire tax plan to increase resources for the county’s fire department at the meeting. Thompson emphasized that insufficient funding for county fire services was a core issue making the moratorium necessary; Southport city manager Stuart Turille Jr. argued the county has an EMS service gap due to overdevelopment at an emergency meeting Monday. 

Brunswick County spokesperson Meagan Kascsak disputed the allegation to Port City Daily Tuesday. Commissioner Frank Thompson also addressed “rumors” he’d heard that the county wants control over Southport’s EMS.

“Absent a resolution I’m not interested in taking over their EMS,” Thompson said.

UNCW economist Mouhcine Guettabi told Port City Daily infrastructure and environmental concerns in the county are serious but he was unsure if a development moratorium was the right solution.

“The challenge with all of this is, migration has slowed some,” Guettabi said. “But if it does continue and all of a sudden you’re not developing it’s putting upward pressure on the inventory that you have. So it’s this messy thing where there are a lot of moving pieces.”

The North Carolina Office of State Budget and Management found Brunswick had the highest rate of net migration of any county in the state — 49.8 per 1,000 people — in a May 2024 report.

Chair Thompson raised concerns about the planning board’s recent decision to table revisions to the Unified Development Ordinance after flooding last month; the UDO will contain staff recommended updates to the flood prevention ordinance. The planning board has decision-making authority over development approvals in Brunswick County. In other counties, such as New Hanover, the planning board only provides recommendations before commissioner approval.

“What I would like to see is four resignations from the planning board,” he said. “I know one of them is my appointee and certainly I’ll have a discussion with him but I think our problem — if you drill down into it — starts with this planning board.”


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