HNC attorney says to ignore the Planning Board’s recommendation
By Kim Lewicki, Highlands Newspaper
At the Aug. 15 Town Board meeting, commissioners voted 4-1 to hold a special public hearing on Thurs., Sept. 5 at 7 p.m. before deciding whether to pursue amortization of short-term rentals as proposed by amending the verbiage about STRs in the existing Unified Development Ordinance.
Commissioner Jeff Weller was the dissenting vote.
Prior to amending an ordinance, as per NC General Statute, a municipality’s Planning Board must submit a recommendation to the governing body, in this case, the Town Board. Since it’s only a recommendation, the Town Board doesn’t have to act on it.
At its July meeting, the Highlands Planning Board voted 7-0 to not change the ordinance which currently reads: Notwithstanding anything in this UDO, short-term rentals in operation as of September 15, 2022, are nonconforming uses in the R-1 and R-2 zoning districts. Only STRs in existence prior to Sept. 15, 2022, are allowed to continue but new STRs aren’t allowed.
The proposed amended ordinance to amortize STRs reads: Notwithstanding anything in this UDO, short-term rentals in operation as of September 15, 2022, are nonconforming uses in the R-1 and R-2 zoning districts until September 15, 2027. After September 15, 2027, short-term rentals are not permitted in the R-1 or R-2 zoning districts, and all short-term rentals in those districts must be discontinued.
Commissioner Amy Patterson who has been campaigning for amortization for years, said having a special public hearing – instead of having it during the September Town Board meeting – will give the Town Board time to digest the comments made and potential letters sent on the subject prior to the September 19 Town Board meeting.
During the Public Comment period of the August Town Board meeting, during which people can speak on any subject, several people spoke including two who spoke about STRs – Highlands Neighborhood Coalition attorney Mac McCarley and Tucker Chambers, owner of a 40-year old vacation rental business
Mike King, a retired attorney also spoke, and criticized both Highlands Newspaper for printing an article written by two attorneys with the Institute of Justice (IJ) and IJ’s tone when criticizing the Highlands Town Board for pursuing amortization.
The article in the Aug. 8 edition entitled “Western NC town comes for residential property rights,” that was printed with permission from IJ, was an effort to exemplify what the town will be up against as warned by Town Attorney Bob Hagemann on many occasions.
“There will be a legal battle and there is a good chance the town will not prevail which means the town will be responsible for attorney and legal fees incurred on both sides as well as any judgement the court applies,” he has said. “Furthermore, I am confident the courts will not allow you to enforce a STR amortization period while the litigation is pending, and it is almost certain that there will be a legal challenge.”
Hagemann has also said, “I anticipate their arguments will be that the town lacks the authority to amortize. And even if the town had the authority, it is unconstitutional under a variety of unconstitutional theories. One of which is that the NC constitution protects citizens’ rights to the ‘fruits of their labor,’ and we are seeing that clause come forward more and more in our courts.”
King questioned Highlands Newspaper’s journalist integrity for running the IJ article and criticized the Institute’s use of the word “scheme” saying it disrespected the Town Board and the good work it does.
“These two lawyers chose to phrase your actions as a ‘scheme’ which is a devious way to do something illegal,” said King. “I took offense to them accusing those of you who we elected to look after our best interest to categorize your comments like that. For a lawyer to come out and use the word ‘scheme’ is unprofessional.”
He went on to criticize Highlands Newspaper.
“The paper acted irresponsibly and against the journalist code by placing a hit piece on the upper part of the front page where the word ‘scheme’ hit the front page,” he said. “One of the principal things of a journalist code – a true journalist – is to deny favorite treatment to special interests, in this case an advocate for a special interest group in this town. So, I didn’t like that.”
Chambers said it wasn’t right to take someone’s rights away concerning what they do with their property especially when there have been very few problems – 15 complaints in two years – and asked why the town has a Planning Board if commissioners aren’t going to listen to them. He also questioned the potential loss of tourism dollars should STRs go away.
While reading his prepared statement, Attorney McCarley said according to what he read in the newspapers and the minutes of the meeting the Planning Board was overly concerned with the cost of litigation to the town which he said was none of their concern.
He also said “they didn’t analyze the proposal from a land use point of view and more specifically didn’t base their recommendation on the adopted ’policy’ in the Comprehensive Plan. In fact, they acknowledge the adopted ‘policy’ and then ignored it,” he said.
However, it should be noted that the Comprehensive Plan which was adopted by the Town as mandated by the state is not a “policy” document and nothing in it has been adopted as a “policy.”
According to Town Manager Josh Ward, an adopted comprehensive plan is required for any municipality that has land use regulations but nothing in the Highlands Comprehensive Plan has been made a “policy.”
“The plan is a guide for the Board to follow when making decisions on the future direction of new ordinances and policies and other future directions of the Town. The Plan has to be considered when making new ordinances or amending existing ones, but the Plan does not have to be followed,” he said. “The Planning Board and Town Board must only state they have reviewed the Plan pertaining to each subject, then follow up with a statement of reasonableness.”
McCarley went on to say that the Planning Board focused on the threat of litigation and a concern over potential costs – issues that are solely the province of the Town Board, not the Planning Board.
However, it should be noted that the cost of litigation was not discussed in Highlands’ Newspaper’s account but rather the possibility of losing what is in place regarding STRs as outlined in the current ordinance.
Attorney Hagemann, who attended the Planning Board via Zoom, explained that if the pending legislation now in the legislature passes – which could happen at any time, especially if Highlands tries to set an amortization precedent – it may very well require the town to rescind the STR ordinance now in effect which has at least stopped the proliferation of STRs.
Hearing that, Planning Board Vice Chair Helene Siegel said she didn’t want “to poke the bear” and risk losing what was in place and working to lessen the impact of STRs.
“There are rules in place. Highlands has a vibrant, year-long economy. Second-home owners leave their houses to sit empty and when they are rented, the economy is better in the long-term, said member John Muir. “I understand second-home owners concerns, but now we have people here year-round which is good.”
Chris Wilkes said no one wants Highlands to be “just a weekend” town and enforcement of STR regulations is key.
“If we put teeth in the ordinances with fines, that solves the problem-renters which will in turn keep the neighbors from being uncomfortable,” he said.
Rachel Wilson said with the current ordinance, STRs will self -amortize over time.
“If someone buys an existing STR they can continue renting it, but I know people who are buying STRs who don’t need to or want to rent which means the STR goes away. There are also HOAs that can regulate this,” she said. “What’s important is we don’t want to be a test case. We need to hold tight to what we have in place.”
Chairman Darren Whatley said there is no need to “pour gas on the fire before giving what’s on the books a chance to work.”
McCarley went on to say by focusing on litigation and cost issues instead of land use issues, the Planning Board usurped the Town Board’s role as the governing body for the town.
“In short, they made a recommendation based on issues that are none of their business and deprived you of a thoughtful recommendation based on sound land use planning principals and the policies of the town,” he said. “In light of those deficiencies the best course of action for this board is to ignore the Planning Board’s recommendation and base your own decision on good land use policy.”
And finally, McCarley said the public interest law firm, IJ continues to distort the NC case law in an effort to make the community believe that amortization is not a lawful technique for addressing land use nuisances. “They are simply wrong,” he said.
According to the UNC School of Government, since the late 1800s and 1920 onward, amortization cases revolved around gas stations that ended up in residential zones as towns grew and zoning between residential and commercial areas was enacted. They also mentioned, adult entertainment facilities near schools, adult bookstores and the proportion and sizes of signs, and recently according to Attorney Hagemann, the proliferation of billboards – all of which became nonconforming uses and are considered nuisances of some kind.
In North Carolina, over the years sometimes these uses have been grandfathered and sometimes they have been amortized.
Also, during the public comment portion of the meeting, the Cahill family, who recently purchased the Satulah Brewing Company, requested a special use permit to allow the site to become a beer tap room without the required restaurant component, and also said brewing of beer on the premises will cease.
Planning Director Michael Mathis said they had to approach the Town Board prior to moving forward with any change of use and the stipulations associated with the previous use.
Paul Barnett, a homeowner in Mirror Lake also spoke about the dredging project about to begin as did Mirror Lake resident Bob Johnston. (See adjoining story: Phase 1 of Mirror Lake dredging to begin late Sept.)
Pictured at the top of the article is an aerial photo of Highlands overlooking Harris Lake.