Connolly questions legality of Planning Board proposal

A Buncombe County Planning Board recommendation on community-based planning may be legally problematic — but for a different reason than was anticipated.

On Feb. 3, the Planning Board decided, on a split vote, to recommend that the county commissioners allow local communities to create their own planning districts. The draft ordinance calls for letting only property owners — rather than all registered voters in the community or a mix of landowners and voters — sign petitions requesting that a local planning district be established. But Planning Board member Julie Combs and even County Commissioner David Gantt, a lawyer, wondered whether restricting the petition to landowners is legal.

At the Planning Board’s Feb. 17 meeting, however, Buncombe County Attorney Joe Connolly raised concerns about another element of the proposal, which stipulates that proposed land-use regulations would have to have the support of a majority of the people in the district. Without special permission from the legislature, Connolly said, state law doesn’t provide for zoning decisions to be made by referendum. More specifically, the law prohibits spending taxpayer dollars on a zoning referendum. Zoning decisions are the domain of the county commissioners, Connolly explained.

“Whether it’s binding or nonbinding, you’re voting on zoning, and I don’t think you can do this,” he said.

Back in 1999, the county did hold a nonbinding referendum on countywide zoning — but only after getting special permission from the General Assembly, Connolly noted later.

Combs also asked Connolly to check on the petition issue, and he said he would. He also planned to report back on whether an informal advisory vote could be taken on zoning and still stay within the bounds of the law.

In another policy matter, Planning Board members also discussed an evolving proposal to regulate development on steep slopes. Board member Jay Marino questioned the section calling for any new regulations to apply only to property at 2,220 feet or higher, saying the elevation shouldn’t be a factor if the land is steep. No action was taken.


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