Town hires attorney for 2nd opinion about PB’s short-term rental take

After the Feb. 1 Town Board work session on short-term rentals, the board came away thinking it needed another legal view concerning the Planning Board’s recommended changes to the UDO as they apply to STRs. 

At the February 17 Town Board meeting, Mayor Pat Taylor suggested hiring Chad Essick, a land use attorney with the firm Poyner Spruill out of Charlotte, NC.

Mayor Taylor said the scope of work will be limited, not inclusive and it does not include any pending litigation.

“He will look at the recommendations from the Planning Board and will look at our ordinances and will provide a second opinion [to that of Attorney Craig Justus].” 

Town Attorney Jay Coward said he thought eliciting a second opinion regarding STRs was a good idea and Poyner Spruill is a great old firm.

“This is a very complicated situation and there are lots of views on it and if the board chooses to make a decision at least they have as much information as it possibly can. This guy is very qualified to give a second opinion. I am sure he is going to look at everything that has come up since last fall, [August 24 when the board voted, at Coward’s suggestion to disallow STRs in the R1 zone effective Jan. 3], not just grandfathering. He is going to zero in on some specific things, but he is going to look at all of it – not the entire UDO – just in regard to STRs,” he said.

Mayor Taylor said once the Thursday, Feb. 24 public hearing is completed and the board starts looking at the final issues, Essick’s opinion will be there.

Commissioner Marc Hehn suggested the town had already spent close to $50,000 in attorney fees, though neither Coward nor the board confirmed that, and the town didn’t need another opinion.

“We have Jay’s opinion, we have Craig Justus’s opinion, and we have the opinion of Rebecca Padgett from the School of Government,” he said.

But Commissioner Amy Patterson, who was part of the initial working group formed to consider STRs said she has a lot of questions yet to be answered and so wanted another opinion.

“During the working group that Brian [Commissioner Stiehler] and I were on with Jay, Craig, and Josh [Town Manager Ward], we had a lot of questions, and we weren’t totally satisfied with Justus’s answers. Having done a little research of my own, I am less satisfied with his answers. I am not a land use lawyer, so I am not going to make recommendations, but I think it is legitimate to ask someone else for a second opinion. 

“Mr. Justus was very up front with us telling us he was a private property rights guy, and we know that having dealt with him over the years on the other side. For instance, we brought up amortization and he completely ignored that yet it’s a very legitimate thing to do, also nonconforming uses as opposed to vested rights is a very legitimate thing to do. I think we need a second opinion about what’s best for Highlands and what direction we need to go.

“This guy will look at our needs specifically, unlike the School of Government woman who has not looked at us specifically. So, I would make a motion for him to look at the proposed changes – maybe not to say yay or nay – but to give us other suggestions and allow us to try to figure out what is best for Highlands and which direction to go,” she said.

Commissioner Brian Stiehler agreed.

“Absolutely. I think I have more questions now than when we started. I can’t – in good faith for the constituents of Highlands – make a decision. I need more information,” he said. 

Attorney Coward said Essick is a good candidate for a second opinion because he understands Attorney Justus’s opinion.

“He understands Craig Justus’s point of view. He knows him and has talked to him. So, I think he will give us a good opinion not only about the issues but also about Craig Justus’s position. Which is certainly what you are doing by requesting a second opinion,” he said.

Mayor Taylor said regardless of the decision the board makes concerning STRs, it needs a second opinion that is grounded in legal analysis.

Commissioner Hehn said that is exactly why he asked for an attorney who is an expert in land use.

“I questioned Jay’s initial opinion. I have a degree in Planning, and I have to agree with Mr. Justus,” he said.

The board voted 4-1 to hire Chad Essick with Poyner Spruill to review and provide advice concerning the town’s regulation of STRs and certain amendments to the UDO that the town is considering regarding STRs. 

Commissioner Hehn voted “nay.”

According to their letter regarding “engagement of legal services,” Poyner Spruill’s attorney fees range from $250 to $500 an hour. Their paralegal fees range from $185 to $250 an hour. 

However, the three attorneys likely to be involved – Chad Essick, Bob Hagemann and Sam Morris – charge a discounted hourly fee for governments of $395, $395 and $275, respectively.

Tonight’s public hearing begins at 5 p.m. at the Highlands Community Building.

By Kim Lewicki, Highlands Newspaper

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