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DEVELOPMENT BOOM — A 46-unit duplex development on Allens Creek in Waynesville that came on line last year was a harbinger of the residential building boom to come — with 800 more units in the pipeline spanning nine apartment, townhome and subdivision projects that have been approved.

PACKED HOUSE — Around 50 members of the public attended a double-header public hearing on an apartment and townhome development before the Waynesville planning board in March.

SWEARING IN — Members of the public along with developers for an apartment project are sworn in at the beginning of a public hearing before the Waynesville Planning Board last fall. Anyone who couldn’t reach the Bible had to touch someone else who was touching the Bible.

DEVELOPMENT BOOM — A 46-unit duplex development on Allens Creek in Waynesville that came on line last year was a harbinger of the residential building boom to come — with 800 more units in the pipeline spanning nine apartment, townhome and subdivision projects that have been approved.

PACKED HOUSE — Around 50 members of the public attended a double-header public hearing on an apartment and townhome development before the Waynesville planning board in March.

SWEARING IN — Members of the public along with developers for an apartment project are sworn in at the beginning of a public hearing before the Waynesville Planning Board last fall. Anyone who couldn’t reach the Bible had to touch someone else who was touching the Bible.

Opponents who’ve turned out to protest large-scale housing projects in Waynesville in recent months have heard a recurring mantra: a new state law tied the planning board’s hands, giving them no flexibility but to approve the projects as is.

As it turns out, that wasn’t entirely true. A procedural change that stripped the planning board of some of the discretionary power it once had wasn’t mandatory after all.

The planning board repeatedly decried the state law infamously known as 160D. The new rules pigeonholed the planning board into voting ‘yes’ as long as a developer met a checklist of black-and-white criteria, the public was told.

“Ever heard of 160D? The North Carolina legislature passed that law and has tied our hands,” Planning Board Member Ginger Hain told a packed house at a public hearing on an apartment and townhome project in March.

See related article "Waynesville planning board wants to reclaim some of its stripped powers."

Statute 160D was indeed packed with mandates, new definitions and legalese foisted onto local planning boards.

But the most notable change adopted by town leaders — the one that stripped the planning board of its discretionary powers — was not a mandate but a recommendation from the UNC-Chapel Hill School of Government.

“The claim that the change was necessary to comply with 160D was false. It turns out there was no mandate,” said Scott Cason, a Waynesville resident who’s become active in development issues after an apartment complex was proposed next door to him.

At a town board meeting last month, Cason told aldermen they should reverse the procedural changes that had stripped the planning board of its powers.

“A mistake was made and that left single-family homeowners unprotected from large high-density developers. We are all human. We all make mistakes,” Cason said. “The problem is with development mistakes, you can be stuck with them for years.”

Under the new rules codified by the town board last summer, the planning board can no longer consider subjective criteria — like whether a development fits the character of the surrounding community, whether roads could handle the increased traffic, or whether the project would diminish the value or use of surrounding property.

The planning board was vocal about its own dissatisfaction with the new playing field.

“I am going to vote ‘yes’ for this because I have no other choice,” Planning Board Member Don McGowan told the public last fall when voting for the 115-home Queen Farm subdivision. “I apologize to those who have to live next to this kind of track housing.”

Last month, the planning board learned the change in procedure many thought was mandatory wasn’t mandatory after all.

The procedural change sounds dull and dry at first blush — switching from a so-called “quasi-judicial hearing” to an “administrative process.” But it packed a big punch.

Under the old process, the planning board had more discretion when weighing a development project. Under the new process, the planning board was limited to a black-and-white checklist.

Many on the planning board thought switching to the new process was mandatory and led the public to believe likewise.

“I was under the strong impression we were required under 160D to go from quasi-judicial to administrative,” McGowan said at an April planning board meeting. “Right or wrong, I was under that impression. And we made some comments to the public that was the case.”

Other planning board members had the same impression.

“I was one of those that felt like it was presented in a way that was mandated,” Planning Board Member Gregory Wheeler said.

“I thought it was required. I thought we had to switch,” echoed Planning Board Member Barbara Thomas. “I’ve thought the whole time if we just had a little more flexibility like we did under the old quasi judicial process, we could have done different things.”

To be clear, 160D indeed imposed a more rigorous litmus test for when a development project could be denied. But which changes were mandatory and which were optional got lost in the wash along the way.

“When we first talked to you guys about 160D there was a lot of information thrown at you all at once. If it did not feel clear that major subdivisions could still be considered as quasi-judicial, then that is my fault,” Development Services Director Elizabeth Teague told the planning board last month. “It was not a requirement of 160D.”

During a public hearing on the 115-unit Queen Farm subdivision last fall, McGowan pointed to the town’s comprehensive land-use plan, which says development projects should “reinforce the unique character of Waynesville.”

“Does this do that? I don’t think so,” McGowan said of the project.

“It’s not on the checklist,” replied Hain.

“Then maybe we need to add it to the checklist,” McGowan said.

But under the new process, it wasn’t allowed to be on the checklist anymore.

“You can thank 160D,” Hain replied.

If the change wasn’t mandatory under 160D after all, why was it made? It stems from a recommendation by the UNC School of Government, a panel of professors that offers advice for local governments on interpreting state legislation.

“The School of Government came down with a strong recommendation if there’s not variances or hog trading with a developer, if they can meet your ordinance outright, there should be no quasi-judicial hearing involved,” Teague said.

The rationale is one of equity toward developers.

“If a board decides that they just don’t like a development and turn it down, but they don’t give a legally defensible reason for it, then that’s considered arbitrary and capricious,” Teague said.

That in turn can leave the town vulnerable to lawsuits from developers who claim their project was wrongfully denied. Thus, the black-and-white administrative process was recommended.

“That’s the cleaner process if it ever got to the court system,” Hain said. “The whole purpose is to be fair to all parties.”

Alderman Anthony Sutton said the recommendation came not only from the School of Government but also the League of Municipalities and N.C. Bar Association.

“All the advisory institutions strongly recommended it,” Sutton said, adding that he wasn’t eager to go against the advice. “I do not want to be the test case in the state to determine whether it is legal or not. I would prefer to save our constituents money to have to litigate that.”

But the town shouldn’t set policy based on legal what-ifs, Cason said.

“My feeling is it was just a risk management decision to limit a town’s liability as far as being sued by a developer,” Cason said. “They are getting bad legal advice.”

Anna Starnes, an attorney who consulted the planning board on 160D legislation, said rejecting a subdivision because it’s not compatible with the character of the surrounding neighborhood is tantamount to an “artificial out.”

“That is such a subjective requirement that a developer who has seemingly done everything the ordinance requires could be turned away,” Starnes told the planning board last month. “It sets the stage for someone who may be opposed to that subdivision to come in and try to present information that the subdivision may not be in keeping with the character of the community.”

McGowan wanted to know whether it was an option to go back to the old process.

“If we go back to quasi-judicial, can we take into consideration the character of the neighborhood, damage to property values and whether the use is going to be detrimental to adjacent properties?” McGowan asked Starnes at an April planning board meeting.

Starnes dodged the question, however, saying it wasn’t advisable to apply subjective criteria to a straight-forward subdivision.

McGowan asked the same question three times, however, wanting to know if it was possible — not whether it was Starnes’ recommendation.

“I don’t know that I want to answer that,” Starnes eventually said.

Teague ultimately confirmed that towns had the choice to stick with a quasi-judicial process, which allows subjective criteria to be weighed.

“I do want to clarify that 160D gave towns the option whether to be quasi judicial or administrative,” Teague said.

To sort out where the confusion arose, the planning board looked back at its own record of meetings. When it dove into new 160D requirements over a year ago, Teague clearly explained that switching from quasi-judicial to administrative was only a “best practices” recommendation from the UNC School of Government.

“What the School of Government suggests — and this isn’t required in 160D but is considered a best practice — if you are doing a site plan where it either fits the ordinance or doesn’t, don’t add in these discretionary criteria. Because then you can end up in all sorts of lawsuits,” Teague said at a planning board meeting in January 2021.

Meanwhile, however, a host of other legalese changes to zoning laws embedded in 160D were wrapped into the discussion. Over time, the changes that were mandatory versus those that were optional became muddled.

“There was so much involved in the state legislation, it’s understandable to me if people didn’t realize,” Teague said. “It’s really complicated, and as you get going down the road you forget.”

By the time the changes had made their way to the town board of aldermen to approve and codify last June, the town’s zoning ordinance contained page upon page of red line markups. Those changes were alternately described as both mandatory and recommended, according to the agenda and minutes from the meeting.

The agenda cited the need to amend town zoning rules to come into “compliance with 160D” and bring the town “into compliance with the new law.” But the same agenda also says the changes are needed to align with “best practices suggested by the UNC School of Government’s analysis of 160D.”

Cason said he doesn’t blame aldermen.

“When a batch of amendments come through and they’re told these were necessary to bring us into compliance with 160D, what are they going to do? Whip out 160D and make sure?” Cason said.

The upshot, however, is that once the town board voted to codify the new process, the planning board’s hands were indeed tied.

“Once you do make the change to your ordinance, you have to follow it,” Teague said.

The Waynesville planning board is considering whether to reclaim some of its power over large-scale housing projects after giving that power a…

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