The status of the short term rental issue in Highlands is still not clear.
Since the Town Board voted 4-1 to pass the amended STR Unified Development Ordinance (UDO) language at its May Town Board meeting, a few things have transpired.
First, the amended ordinance passed at the May meeting doesn’t count because the required public hearing on the matter that took place on Feb. 28 wasn’t advertised, which means the amended ordinance has no standing.
Second, on June 17, Save Highlands emailed Town Attorney Jay Coward a Public Records Request for all correspondences in all forms from and to commissioners, Highlands Neighborhood Coalition and others.
Third, Craig Justus, the attorney the town hired to advise them on STRs but whose advice the town disregarded, resigned the end of last week.
Fourth, a Special Closed Session was held Monday, June 27 whose purpose pursuant to NCGS §143-318.11(a) (3) was for attorney client privilege to advise on STR amendments and retaining substitute counsel for the Huff Case (Save Highlands).
Monday night, Mayor Pat Taylor said “no action was taken at the meeting and the town may or may not meet the schedule he outlined regarding STR steps forward.”
Those “steps” previously outlined were setting a public hearing for July 28 to hear the Planning Board’s STR recommendations to the UDO which the Planning Board is to discuss at its July 12 meeting.
However, the amendments the Planning Board is to consider are not the amendments it recommended to the Town Board in February, which were discussed by the public during the “unadvertised” public hearing Feb. 28.
The amendments the Planning Board will likely consider are those the Town Board adopted at its May Town Board meeting – unless those change between now and July 12, which the mayor alluded to in his statement – “The town may or may not meet the schedule I outlined.”
On Tuesday, Mayor Taylor said “We may make changes. We want to make sure if and what the board changes is in the best form possible and consistent throughout any new draft. The attorney advised that what we had previously passed [at the May Town Board meeting] was defensible in court. I will not elaborate further.”
Taylor said during the Closed Session, Attorney Bob Hagemann, one of the town’s attorneys with Poyner Spruill that the town hired in conjunction with Attorney Craig Justus, outlined legalities pertaining to STR amendments.
“We are currently represented by the Poyner and Spruill Law Firm,” said Taylor. “There is a formal legal process that has to be followed due to Craig Justus’s resignation. Upon the advice of our attorney, we will follow the process of assigning a new attorney to the Huff case. One of the attorneys for Poyner and Spruill will be assigned as counsel to the Huff case. I appreciate all the work and legal advice that Craig Justus provided, and wish him all the best.”
As to the Request for Public Records that was emailed to Town Attorney Jay Coward Friday, June 17 to which he replied on Monday, June 19 … “We will process this,” Taylor said the town will assemble and provide all pertinent documents.
Town lays out the map to STR changes
At the June 16 Town Board meeting, Mayor Pat Taylor outlined the upcoming meetings and steps the town is taking regarding Short-term Rentals in Highlands.
He explained both the steps required for the adoption of the Comprehensive Plan and its STR verbiage and the steps required for adopting STR verbiage amendments to the town’s Unified Development Ordinance (UDO) – which are two very different things.
The Comprehensive Plan – a plan mandated by the state and required to be adopted by all municipalities that have zoning by July 1, 2022 – is just a policy plan that must be consistent with the town’s Land Use plan as well as its Unified Development Ordinance (UDO). Nothing in the Comprehensive Plan is regulatory, it’s just a road map for the future – a series of recommendations and suggestions regarding all things Highlands.
The UDO details specific dos and don’ts – rules and regulations regarding land use and zoning.
With the STR controversy in the mix it’s gotten a little confusing.
General Comprehensive Plan recommendations for STRs from Chad Essick of Poyner and Spruill were heard at the special closed meeting on June 10 and subsequently have been included in the Comprehensive Plan.
The required public hearing for the Comprehensive Plan is June 30 at 6 p.m. in the Community Building. It’s assumed that after the public hearing the Comprehensive Plan will be adopted that night just in time for the July 1 deadline.
The amendments regarding STRs in the Comprehensive Plan are on the town website and Atty Essick’s suggestions regarding section LU 5.5 under Land Uses were incorporated.
Land Uses LU 5.5 reads — “Consider updating land use regulations to define short-term rentals as a use and establish geographic restrictions, approval requirements and/or performance-based standards for the use.”
Atty Essick said: “On page 67 of the Comprehensive Plan — LU 5.5 includes suggestions regarding the regulations of STRs, some of which the proposed ordinance includes and others that it does not. Specifically, the proposed ordinance does not require a Special Use Permit and does not impose a minimum night stay requirement, as suggested in the LU 5.5. Therefore, we would advise removing or amending those suggestions in LU 5.5 to align with the proposed ordinance.”
Subsequently, Town Manager Josh Ward said since the town doesn’t require Special Use Permits for any reason anymore, that was taken out of the Comprehensive Plan as was the minimum stay requirement because at this point, that issue has not been finalized.
Commissioner Marc Hehn voted against setting the public hearing for the Comp Plan because he said he wasn’t allowed to speak to the lawyers who attended the meeting virtually so that vote was 4-1.
Later during the June 10 meeting, commissioners heard legal counsel regarding the erred adoption of amendments to the UDO regarding STRs that took place at the May Town Board meeting.
Since the February public hearing regarding STR amendments to the UDO wasn’t advertised correctly in The Highlander newspaper Feb. 10 and Feb. 17, the amendments passed by the Town Board at the May meeting don’t count.
It should be noted that those amendments were not what the Planning Board recommended. However, the Town Board doesn’t have to accept recommendations from the Planning Board regarding any issue – it just has to hear them.
After Save Highlands – the group for STRs – brought the publication “mishap” to light, it demanded the STR amendments to the UDO be rescinded.
After the special closed June 10 meeting, Attorney Craig Justus, who the town hired early on to help with STR verbiage, but whose recommendations the board has mostly disregarded, drafted a notice saying there was nothing to rescind because the amendments weren’t lawfully adopted.
For the Town Board’s UDO STR amendments to be official, the Planning Board must see them, give its recommendation followed by a public hearing on the matter followed then by possible adoption.
At its upcoming July 12 meeting at 5:30 p.m. in the Community Building, the Planning Board will go over the Town Board’s STR amendments to the UDO that it passed in May.
A public hearing for UDO STR amendments will be July 28 at 6 p.m. in the Community Building.
However, if the Planning Board needs more time, the mayor said the public hearing could take place as late as Aug. 18.
“As everyone knows, we have to start this whole process over due to a technical miscommunication where proper notice wasn’t given in The Highlander newspaper,” said the mayor. “Hopefully by June 30 we will have those UDO recommendations for the Planning Board ready for review.”
Given recent legal ramifications, whether the Town Board’s May UDO amendments for STRs will change by July 12 is unclear.
“I say that is the plan, but there is always the possibility of some changes. If the Planning Board needs more time or needs to meet more than once that will be an option for them,” he said. “If the Planning Board fails to provide a recommendation, the public hearing will be continued until Aug. 18.”
Meanwhile, on Friday, June 17, attorneys for SAVE Highlands sent the town a Public Records Request regarding all correspondences by phone, text, email and letter about STRs made to members of the Highlands Neighborhood Coalition – those against STRs – commissioners, media and others. (See letter on page 4 of this issue).
Also, at the end of last week, Attorney Justus resigned from Highlands as legal counsel for STRs.
Furthermore, Attorneys from Poyner & Spruill said early on that they would help formalize STR verbiage, but their firm would not represent the Town of Highlands in court regarding STRs.
“We are consulting with legal counsel on how to proceed,” said Mayor Taylor.
He said the town will make an announcement as soon as possible.
By Kim Lewicki, Highlands Newspaper