Rep. Pless wants to strip Haywood municipalities of some regulatory powers
A COVID-era sports seating bill has now morphed into a pro-development bill that would hobble the ability of Haywood County’s municipalities to exercise certain zoning and development powers considered critical for directing and controlling growth.
“I’ve had some complaints, obviously in Maggie Valley about the things that are going on out there, but I’ve also had complaints in Waynesville from folks that live in the extra-territorial jurisdiction who are forced to comply with Waynesville’s building codes and their other restrictions,” said Rep. Mark Pless (R-Haywood).
Originally titled as the “Students, Parents, Community Rights Act,” S170 was filed on March 1, 2021, with Sen. Kevin Corbin (R-Macon) as one of three primary sponsors. The bill would have set minimum capacity limits at high school sporting events in 11 rural counties, including all of Corbin’s seven-county district, and would also prohibit those counties from adopting stricter limits.
Corbin introduced the bill a week or so after Gov. Roy Cooper lifted capacity limits on outdoor athletic events just days before the big Haywood County rivalry game between the Tuscola and Pisgah football teams. After going through two minor revisions and three readings, the bill was then sent to the House on March 15, 2021.
“This particular bill was one that Corbin had sent in to deal with an issue that was going on at the time and that issue is no longer present,” said Pless. “So that bill was just laying in the House of Representatives.”
On June 3, the bill emerged in the House as a PCS (preferred committee substitute) and was read three times. The new S170 bears the short title, “No ETJ in Haywood Cty/Maggie Valley Dev. Auth.”
Nothing from Corbin’s original Coronavirus-inspired sports seating bill remains in the new S170, which outlines three major changes to the way development standards are set and enforced by Haywood’s four municipalities.
“Rep. Clampitt and I had a meeting in [Corbin’s] office last Tuesday,” Pless said. “We’re all in agreement, and we’ve had extensive conversations about what’s going on and what we need to do. He agrees, I agree, and Corbin agrees.”
First, all municipalities in Haywood County — Canton, Clyde, Maggie Valley and Waynesville — would lose their right to exercise powers over their respective extra-territorial jurisdictions.
In North Carolina, extra-territorial jurisdiction refers to parcels of land adjacent to or otherwise outside of municipal boundaries where cities and towns nonetheless exercise certain powers, like zoning. Residents of ETJs don’t pay city taxes, but they also don’t get to vote in city elections.
“It’s nice to have an ETJ because you can have zoning in preparation for requests of annexation,” said Maggie Valley Town Planner Kaitland Finkle. “It’s a great tool to have. ETJs have been removed from some jurisdictions in North Carolina, so it’s less of an attack on Maggie Valley, but it is certainly unfortunate to remove a tool that is set up to guide growth and development as towns expand.”
In principle, ETJs exist to give towns some say over what happens near their borders, but Pless said that Waynesville is abusing those powers.
“Waynesville’s zoning department is very adversarial with everybody they deal with,” said Pless. “They will set down and they will try to control everything that goes on in these areas. And that’s not fair. Those people can’t vote. Those people can’t choose who the alderman are. They have no say other than to comply with a bunch of rules without any representation.”
Second, S170 would strip the powers of Maggie Valley government to adopt or enforce any temporary moratoria on development approval through Jan. 1, 2025.
Maggie Valley Mayor Mike Eveland, along with Alderman Jim Owens and John Hinton, see the moratorium portion of the bill as a direct response to a moratorium passed by the town board in January of this year .
By a split vote, the board approved a moratorium on campgrounds, RV parks, RV Planned Unit Developments and RV storage. Owens made the motion to impose the moratorium, saying he had received a great deal of negative input regarding campgrounds and RV parks from voters during his campaign for alderman.
At a meeting one month earlier, he had suggested removing campgrounds completely from the table of permitted uses for commercial zones in the valley. Because the town is currently in the process of creating a Unified Development Ordinance, Town Attorney Craig Justus suggested that a moratorium would be more appropriate.
According to Alderman John Hinton, Pless met with Hinton, Eveland and Town Manager Nathan Clark Jan. 4 to ask that the board withdraw its support for the moratorium. However, Eveland, Hinton and Owens felt it was more important to listen to the residents they represented.
“It was an effort we took in order to ensure nothing happened until we got the new UDO and land use map approved,” Owens told The Smoky Mountain News. “I don’t see us going forward placing moratoriums here and there. It was a specific moratorium on a specific issue for a specific reason.”
The six-month moratorium will expire June 11.
“The ability for us to have [moratorium] as a tool in our box is important, but it almost never gets used,” said Eveland. “I’ve been on the board going on 10 years, and we’ve never had to do this before. I don’t see any reasons why we would have to have one in the future, but it’s taking away our right to be able to. It strips us of local authority to be able to do what we need to do within the town.”
While Owens, Eveland and Hinton were in favor of the RV and campground moratorium when it passed, aldermen Tammy and Philip Wight were vehemently opposed.
“The timing of this moratorium can easily be viewed as a gross misuse of power,” Tammy Wight said at the time. “I don’t see this as a question of whether Maggie Valley needs campgrounds or RV parks, I see it as a landowner having a right that is being taken away.”
Owens sees SB170 as an affront to Maggie Valley, saying that it “attempts to tie the hands of the Board of Aldermen in Maggie Valley” to carry out wishes of the residents.
“A junior representative in Raleigh wants to decide what’s best for Maggie Valley,” said Owens. “I don’t think that voters and the citizens in Maggie Valley appreciate that.”
Third, the bill removes Maggie Valley’s power to down-zone parcels without the written consent of the owners of all down-zoned parcels. Down-zoning is already defined in G.S. 160D-601(d) as reducing the development density of parcels, or reducing the number of permitted uses of a property.
The bill would also add a third definition of down-zoning, just for Maggie Valley, defining down-zoning as limiting options or adding additional requirements “to depress or hinder development to the same extent allowed under its previous usage.”
“It will remove any regulatory authority that the state’s given us to create and enforce development regulations,” said Finkle.
“It strips us of our ability to be able to define zoning within our municipality,” Eveland said.
Pless explained that the measures targeting the Town of Maggie Valley came about because of what he sees as the town’s unwillingness to find common ground with developers and property owners.
“The whole point to having [aldermen] in town is not to run roughshod over residents; it is to help everyone in the community try to find that medium, where folks can agree and where they can get along,” Pless said. “And they just have chosen not to do that. They have gone in and they’ve destroyed the confidence that the people in Maggie Valley have in their willingness to have conversations with them and not just run roughshod over them.”
The bill has a sunset clause that applies to the Maggie development restrictions on Jan. 1, 2025.
Pless called the Maggie restrictions a “reset” that’s not meant to be permanent, but is instead meant to bring people back to the table.
There is no such sunset clause for the ETJ provisions, meaning Canton, Clyde, Maggie Valley and Waynesville would all see some regulatory powers reduced, along with other changes.
“We have multiple representatives on our boards from the ETJs, like on the planning board, and this would result in their removal and actually limit the voice of those affected by decisions made in Waynesville,” said Alderman Anthony Sutton.
Waynesville Alderman Chuck Dickson is also opposed to S170.
“He’s taking away from Haywood County towns the right that every other town in North Carolina has, which is the ETJ, which helps prevent uncontrolled growth in the areas right outside of town,” Dickson said. “It prevents things from going into residential neighborhoods that people don’t want. These are areas that will eventually become part of the town, which is why the General Assembly gave towns the right to zone those areas.”
Dickson added that the ETJ restriction wouldn’t necessarily impact the way the town interacts with developments in its ETJ because of a town policy that requires parcel owners wishing to avail themselves of the town’s water and sewer services to petition the town for annexation, which would in turn subject those parcels to the town’s development ordinances anyway. Maggie Valley has the same policy.
As a local bill, S170 won’t make a stop on Gov. Roy Cooper’s desk for a possible veto.
It was sent back to the Senate on June 3 and referred to the Senate’s Rules committee on June 6. If passed by that body, S170 becomes law and would be effective immediately.
Haywood Commission Chairman Kevin Ensley said that Bryant Morehead, county manager, estimates S170 would cost the county around $150,000 annually, due to the increased workloads on county building inspectors and planners.
The proposed bill had governing boards in Clyde, Maggie Valley and Waynesville scrambling to act, in anticipation of General Assembly action on the bill.
In Waynesville, aldermen called an emergency meeting for 6 p.m. on the same day the bill was introduced. Unanimously, the board passed a resolution opposing the bill.
“We believe government is best at the local level when citizens decide, not when someone from Raleigh tells us what to do,” Dickson said. “It’s another example of not respecting the opinions of local citizens.”
The Town of Clyde called a special meeting for Monday, June 6 at 9 a.m. to discuss not only S170, but also a bill Pless filed a few weeks ago proposing that all municipal elections in Haywood County — along with the school board — become partisan elections.
Clyde passed two resolutions similar to Waynesville’s, opposing both the ETJ bill and the partisan elections bill by unanimous vote. Waynesville already passed a resolution opposing Pless’ partisan elections bill.
The Town of Maggie Valley also called a special meeting for Monday, June 6 at 9 a.m., and likewise passed resolutions opposing the ETJ bill and the partisan elections bill.
Neither resolution was unanimous, however. In yet another sign of a growing divide amongst Maggie Valley’s town board, aldermen Phillip Wight voted no on both resolutions, while his wife Tammy voted no on the ETJ resolution, for which they both reserved their most pointed comments.
“While it may be legal to down-zone property without the property owner’s consent and take away property owner rights, I do not feel it to be moral or ethical and do not support writing the letter in opposition that may go against the will of the property owners,” Tammy Wight said.
Phillip Wight took the opportunity to thank Pless for the ETJ bill.
“We have no outlet but going to the state with our complaints,” said Phillip Wight. “[Pless] came up here, he learned, he saw certain meetings and thank God that somebody’s actually paying attention. He actually understands and represents the people.”
Mayor Mike Eveland, however, was characteristically blunt with his criticism.
“This has all the appearances of a political hit job by a very small minority of people who want to handicap the majority of our town officials from doing the job the voters in our community elected them to do,” Eveland said.
None of the municipal resolutions are likely to sway Pless.
“They’re having a hard time understanding that I don’t answer to them. They’re not my boss,” Pless said, repeating his reaction to blowback over the partisan elections bill. “They don’t tell me or Rep. Clampitt or Sen. Corbin how or what they want to be done in every situation. Now, we do consult with them whenever they need things, whenever they would like for us to do something on their behalf, but in this particular situation, it’s not a matter of them being in agreement. It is a matter of standing up for the people who sent us down here.”
As of press time on June 7, S170 remained in the Senate’s Rules committee.
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Here is another example of Republicans campaigning for small government but legislating for greater state control over local (and personal/private) issues. Where does this end? At the ballot box.
Seems like Pless is claiming imperial power, denying the voters of the four municipalities in Haywood County their rights to manage local affairs through their elected governing boards. It's the abuse of legislative power that comes in Dillon Rule states, the same kind of abuse that resulted in the General Assembly attempting to take Asheville's water system from the city, or Charlotte's airport from that city.
And in another news outlet, Sen. Kevin Corbin is quoted as saying that he has the power to either approve the bill or kill the bill. That's another claim of extraordinary imperial power. HIs quote in that news outlet seems to contradict the claims from Pless that Corbin is already on board with this bill.
What we really need is some kind of Home Rule, where county and municipal governments across the state have substantial authority within constitutional and statutory guardrails to manage these kinds of affairs. The General Assembly should legislate, not micromanage the affairs of towns and counties.
The ETJ surrounding Maggie Valley has been used against citizens who do not want to be residents of the town. They are subject to town rules but cannot vote for town officials. It is a de factor case of “taxation without representation. Simply removing the ETJ will not stop them from trampling property owners rights thinly disguised as “smart growth.” But it is a start….