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City Council is poised to scrap court-like zoning cases

During the long run-up to the rezoning case for a new Hendersonville High School, constituents bombarded Hendersonville City Council members with pleas, opinions and ideas. Yet, because of the legal constraints governing a special-use request, council members had to refrain from discussing the case and technically even listening to what amounted to a form of pre-trial testimony.

 

If the situation confused and frustrated the public, it was not easy on council members either. Their collective reaction was “never again.” When they were finally done with the controversial rezoning case, they asked City Attorney Sam Fritschner and the planning staff to recommend a way to eliminate special use permits, the process that requires a quasi-judicial process. The Hendersonville Planning Board reviewed and endorsed Fritschner’s work product last month and sent it on to the council, which is expected to adopt it Thursday night.
“They can’t talk to the applicant, they can’t talk to the next-door neighbor and it’s so frustrating to them,” Fritschner said of the legal rules that limit the council’s ability to talk formally or informally to the parties in a special-use rezoning application. Under a legislative rather than a judicial process, “You can talk to anybody about anything. I will tell you City Council is very interested in having a judicial-free ordinance simply because it gives them more flexibility than special-use with almost none of the onerous restrictions that weight them down.”
To accomplish that, the Planning Board recommended text amendments throughout 185 pages of the city zoning ordinance to replace special-use permits with conditional use permits and to add conditional zoning districts to each general zoning district. That will give zoning applicants the option to file requests as a conditional use, enabling them to alter a proposed development to make it more palatable to opponents.
The broad changes eliminate special-use permits throughout the zoning code and replace them with conditional use permits, which allow developers to tailor rezoning requests in ways that might quell neighborhood concerns. Planning Board members said while conditional zoning will mean more work for developers, it also will give applicants a chance adjust things like density or traffic patterns or hours of operation.
A conditional rezoning request will go through the same three-step review process as a special-use permit — an initial public hearing called a neighborhood compatibility meeting, a Planning Board review and recommendation and City Council review. The difference is the applicant submits a final site plan rather than a preliminary site plan. The rewrite also authorizes the city Tree Board to review and make recommendations on the applicant’s landscape plan.
Mayor pro tem Ron Stephens, who attended the Planning Board, applauded the zoning code rewrite and the flexibility it brings to both the applicant and the council. By the time they cast the final vote on the HHS rezoning and special-use permit in May, council members had heard comments, read news accounts and consumed social media chatter about the controversy for two years. Then, when they held the quasi-judicial hearing, their lawyer told them to ignore it all.
“Human nature being what it is, once you hear something, it’s difficult not to bring it into the discussion,” Stephens said. “I think that (zoning rewrite) was a very positive thing. I think it will enable us to do a better job because there were a lot of things that we couldn’t discuss, we weren’t supposed to discuss and frankly I think a lot of times we were put in a bad position because we would overhear things we probably shouldn’t have heard but couldn’t avoid it. We were halfway through a conversation and somebody would bring something up. The public didn’t understand it. They thought we were being difficult to deal with because we wouldn’t discuss it with them or listen to their ideas. So I think this is very positive thing.”
Planning Board member Steve Orr cited one unsuccessful zoning application — for a retirement community in the city’s extraterritorial zoning jurisdiction on U.S. 64 between Hendersonville and Laurel Park — that might have used the conditional zoning route to address the concerns neighbors and council members had about traffic, density and commercial features.
“It puts the whole end of it on the property owner or the developer,” Orr said.