NEW HANOVER COUNTY — The county’s six-member planning board was tasked recently with reviewing a change in process allowing increased density in certain zonings. But some county planning board members expressed concerns the switch could open up the county to litigation in light of a bill last year that made downzoning illegal statewide.
READ MORE: City considers banishing special use permits after Holly Tree rec facility ‘disaster’
According to Planning Director Rebekah Roth, county management has asked to add its Additional Dwelling Allowance to the table of uses as a conditional rezoning request instead of utilizing special use permits. The ADA replaced “high density development” uses in the land code years ago, which before that were multi-family special use permits in the 1980s.
“Now, a multitude and diversity of housing types are all allowed in each residential subdivision that we have on the books, but we do still regulate densities for different districts,” Roth told the planning board at its Thursday, April 3, meeting.
Today with the ADA, a property owner can seek a special use permit to gain more density in R-20 (4.25 units per acre), R-15 (10.2 units per acre), O&I (10.2 units per acre) and R-10 (17 units per acre); these zonings are allowed in employment centers, urban mixed use or community mixed use placetypes. Additional dwelling allowance projects also mandate developers follow stricter requirements, such as providing direct access to minor and major roadways, having more open space and less imperviousness.
“Since new districts were adopted in 2019, we only had a handful of projects move forward with special use permit applications,” Roth told the board, adding the county received its fourth application recently. “It’s really just a procedure change.”
According to agenda item documents, the change is being requested mainly because of concerns heard by commissioners from residents regarding infrastructure and services, community development patterns, connectivity and design. Switching to a conditional zoning, which is a legislative hearing, would give commissioners more of a say, rather than following strict rules in a quasi-judicial hearing, required of the special use permits. The legislative process also would require community information meetings, while quasi-judicial hearings do not.
Roth told the planning board the conditional zoning is a more common tool used by the county since the state legislature approved it in 2005. Conditional zoning means a development can apply for a rezoning, but is contingent on whether the project follows certain conditions to mitigate impacts of the development. Anyone can speak out when it comes to conditional zoning, unlike in a quasi-judicial process.
Much like a court hearing, a quasi-judicial process can be arduous and long. Only people with “standing” — meaning an expert on a development topic or those who are directly affected by the potential development — can speak. The latter mostly includes property owners whose homes abut a project line.
Participants allowed to speak must be approved by both the governing board and the applicant’s attorney and can only present evidentiary material to back up their claims that a project will negatively impact them. In other words, if someone tries to express concerns about flooding, for example, she would have to have an engineer who has conducted studies on the area prove that a project could potentially create harm to the homeowner in question. But this can be a costly to the layman.
Developers pursuing projects often have the experts on their development teams, who conduct studies and speak on their behalf in quasi-judicial hearings. They provide testimonial proof to circumvent resident complaints, such as increased traffic impeding neighborhoods or housing values decreasing due to the development.
In the county, the planning board does a run-through of what to expect in a quasi-judicial hearing before it heads to commissioners. However, the board does not recommend approval or denial of a project in these instances, only focuses its feedback to help developers and the public ahead of the commissioners meeting.
This was experienced earlier in the meeting Thursday when an SUP for a 10.61-acre assisted living senior facility for 89 residents came before the board. It is to be built in Ogden on Plantation Road, but one neighbor, Kim Edmonds, said the area is already overrun with water during a normal rainstorm, not to mention hurricanes; adding another development would funnel more water to her property, she said. But the planning board suggested she consult with an attorney to get her language in line with what would be accepted by commissioners and rules of the hearing, being she isn’t an expert in the field.
“Maybe I don’t have the proper verbiage and I’m not an expert, but we’ve been on this property for 25 years and we’ve seen how this water moves,” Edmonds said. “Currently, in my home situation, New Hanover County’s emergency services during Hurricane Florence refused to come into our subdivision and evacuate people. This being an assisted living facility … this is dangerous for the citizens who will be living there as well.”
Developers said they would speak with Edmonds after the meeting and the project would follow all stormwater requirements by the state and build it to a 25-year storm event as required by law.
In a quasi-judicial hearing, commissioner considerations to pass a development in the process also are limited. They consider the project on:
- Whether there is potential endangerment to a surrounding area
- If the character harmonizes with the county’s comprehensive plan
- Weighing whether a project would hurt the value of surrounding properties
“With legislative decisions, there is more discretion given to the commissioners as to what types of decisions can be made,” Roth told the planning board Thursday.
Port City Daily reached out to commissioners about the staff’s requested change and to inquire about conversations had with county management and their opinions on the process.
Commissioner Dane Scalise responded that, to his recollection, he wasn’t “party to these ‘conversations’” and would have to research the item further before providing additional insight.
Commissioner LeAnn Pierce remembered having discussions at an agenda review meeting with the board roughly a year ago.
“The manager did not receive clear direction so it did not move forward,” Pierce wrote in an email. “I remember our attorney discussed how many governments have removed that [SUP] process. I would like to hear staff comments and [planning and zoning] discussions before making a decision.”
As reported by PCD last week, the Wilmington Planning Commission is looking at a complete elimination of SUPs, at the behest of city staff and council. They, too, favor conditional rezoning and city staff noted it was basing its research on Charlotte, which no longer uses the permits.
The city’s request came after Wilmington council endured an hours-long meeting in February that
left confusion among participants and attendees of the quasi-judicial — a tedious process for all involved, which planning commission member John Lennon called a “disaster.”
Still, the city commission had concerns about downzoning, the subjective nature of conditional zoning, and ramifications of a complete ban and asked staff to research further how other cities were approaching changes. The Wilmington Planning Commission tabled its vote until another date.
What about downzoning and the aftereffect of S.B. 382?
Conversations among the planning board members centered mostly on Senate Bill 382, which passed the state legislature last fall. The planning board discussed at length whether changing from the SUP quasi-judicial process to a conditional rezoning would equal a downzoning, which S.B. 382 rendered illegal.
Castle Hayne resident Brad Schuler, who has worked in the planning field and for the county previously in 2016, seemed to think it would. Schuler was the only person to speak at the meeting during the item’s public hearing and was against the measure.
He said conditional rezonings are voluntary and should remain that way and also thought changing SUPs could lead to a reduction of property owner rights, impact needed housing stock and make development more sprawling.
Schuler homed in on changes he thought were not consistent with the state’s current downzoning measures. The SUP process allows people to seek additional density without having to change the law or amend the zoning map or zoning text, while the same couldn’t be said with the suggested conditional zoning change, Schuler intimated.
“You are strictly complying with the zoning regulations of that district,” he told board members. “And if you comply with those standards, you are essentially guaranteed approval of that permit. A rezoning, on the other hand, you are changing the law; you are amending the zoning map. And, typically, property owners only seek this route if they want to develop a use that is not permitted under the current zoning district … they would have to rezone their property in another district that allows that permitted use.”
Schuler surmised a change in the process would reduce both the density allowance and permitted uses in the districts, in line with the downzoning definition.
County governments have grappled with the 141-page S.B. 382, intended for Hurricane Helene relief, but which stuffed many other provisions in it. Before the bill passed, General Statute 160D-601 allowed municipalities to initiate downzoning amendments. Municipalities, for instance, could choose to reduce development on certain properties, in an attempt to preserve natural features or limit impervious surfaces in flood prone areas. However, S.B. 382 removed local governments’ abilities to do so.
In January this year, House Bill 24 — “Restore Down-Zoning Authority” — was introduced to repeal the prohibition statewide. As well, a Senate bill was submitted to overturn S.B. 382, but it only applies to 10 counties and their municipalities. Neither bill has passed yet.
“How does staff square that with what is before us in the text amendment?” Chair Colin Tarrant asked Roth.
She said the county attorney has advised it legally acceptable.
“It’s not taking away a tool in the toolbox,” the county’s deputy attorney, Karen Richards, weighed in. “While I appreciate the comments that this is a permit, you have criteria to get the permit … and the permit goes through a process to get the permit, this is the process.”
Tarrant cautioned against the county wading into murky legal water until the downzoning provision has been addressed by the courts or at least with additional legislation.
“I would hate for the county to turn out as some kind of test case,” Tarrant said.
Moore agreed. He added everyone is working off an opinion right now on the ramifications of the bill. More so, he thought getting rid of SUPs because of disliking them didn’t seem to be reason enough to move forward.
New Hanover planning board member Pete Avery expressed comfort with relying on the county’s legal opinion.
“But if you increase density, you’re not downzoning those folks at all,” he countered. “The fear of having that process at this point to be downzoning, I think, is premature.”
While Tarrant respected the county attorney’s opinion, he also understood staff were following through on what they were instructed to do. Tarrant believed there was too much confusion surrounding the topic and the conversation endured by the board amplified as much.
“But if the board of commissioners have requested this and want to see it, it would be up to their decision in the end,” he added. “We are just a recommendation advisory board.”
Moore motioned to recommend denial of the text amendment due to the legislature’s downzoning law and the county being vulnerable to potential litigation, but it failed 4-2.
Hansen Matthews said in his almost four years serving on the planning board he hadn’t experienced such varied opinions among staff, board members and the legal team. He conceded he wasn’t comfortable watching some developments come through on a special use permit and be accepted with little recourse.
“Some of the larger projects, I feel like it’s wide open to a steamroller,” Matthews said. “And there’s really nothing anyone can do but standby and watch, and I don’t feel comfortable with that.”
However, he also took issue with the opposite side of the spectrum — when smaller developments have “well thought-out” plans, with a legal team, engineers, and contractors. Yet, anyone can speak out against it and influence decision-makers.
“You hear conjecture — traffic, stormwater runoff, crime, property values — and there may not be a bit of validity to it, but the fact somebody bought a house down the street 20 years ago and they simply don’t want the change, period,” Matthews said. “Somewhere in between we have to find a way forward.”
This was also broached by Moore and Schuler earlier in the meeting, noting facts-of-finding and expert testimony is something to value in the quasi-judicial process: “At the end of the day, that decision [on SUPs] are based on facts and not unknowns,” the Castle Hayne resident said.
Moore suggested the legislative process could bring in politics rather than sticking with strict standards the special use permit requires.
Hipp suggested Moore’s motion come forward again and be revised by removing the word “denial.” His reasoning was similar to Tarrant: If commissioners wanted to see the changes made, then the board should let them make the ultimate decision. Hipp’s motion suggested the planning board approve the recommendation, but with provisions that clarified concerns, particularly about the text amendment bering misconstrued, thus running afoul against downzoning regulations at the state level and opening the county to litigation.
Moore suggested amending it to an “unfavorable” recommendation instead: “Otherwise, I can’t vote for that. Unfavorable means we have challenges with it.”
Hipp wouldn’t make the change.
“Because semantically that’s recommending denial. I believe that the wording clearly states we have reservations,” he said. “We’ve addressed our concerns and it’s written as part of the motion so they [commissioners] have to read it, whether they watch this or not.”
It passed 5-1, Moore dissenting.
[Ed. note: The article was updated to clarify conditional rezoning.]
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