It seems like just yesterday that an attorney wrote to Chapel Hill Town Council with some quite silly arguments against the Town’s housing choices proposal. Given that it said nothing that a licensed attorney needed to be paid to say, we thought that would be the end of it. We really did not expect anyone else to shovel money towards an attorney to argue against something that is perfectly legal.

We thought wrong. This time, a new group of Chapel Hill residents in the town’s wealthiest neighborhoods have brought in a big gun, Bill Brian, an attorney at the well-regarded Morningstar Law Group who has focused much of his 30-year career on zoning and land use law. Bill Brian is a “Super Lawyer,” has twice been named Lawyer of the Year for land use and zoning law, and has represented developers throughout the region. So if there is a reasonable legal claim to be made against the Town, Bill will make it.

Screenshot of a Google Maps image that shows pins where the people who signed their names to the letter from Bill Brien listed their addresses.
Map of the signers of the letter from Bill Brian on March 10, 2023

Here’s a copy of the letter. Unlike the last one, this one actually hints that the Town might be vulnerable to a lawsuit. The claim has to do with how people are notified about zoning changes. State law establishes the requirements. An amendment to the text of a zoning ordinance requires that local residents be notified by publication in a newspaper, published twice in the weeks before a public hearing. An amendment to a zoning map, also known as rezoning property, requires notification by posting a notice on the property (you may have seen those “Z” signs) and by sending mail to neighbors.

The statute is clear: Section 160D-601 describes the notice requirement for a text amendment, like the housing choices proposal. Section 160D-602 describes the notice requirement for a rezoning, which this is not. These provisions were adopted in 2019 as part of a comprehensive rewrite of the state law authorizing zoning, so it’s not as if this is old-timey language with wiggle room. 

Nevertheless, Bill Brian earns his money by claiming the proposed amendment is “legally problematic” because it raises an “interesting legal issues — namely, at what point is a text amendment to the permitted uses in a zoning district such a fundamental change to the purpose, character, and existing use of the properties in the district that it constitutes a de facto rezoning rather than a mere text amendment.” He writes, in a masterpiece of understatement, that “the case law on this issue in North Carolina admittedly is scant” – because there is none. Instead, he references court opinions from two other states that address very different situations.

Now, anyone can file a lawsuit, and when you live in a 7-bedroom, 5,000 square foot single-family house on a half-acre of property near downtown, there’s a good chance you can afford to pay an attorney to file a lawsuit. But it’s probably not a great use of money. (Reminder: Your writer is an attorney, but not licensed in the state. So this is not legal advice.)

(As a side note, for nearly a century after North Carolina legalized zoning, if owners of five percent of the land surrounding a property filed what was called a “protest petition,” a supermajority of three-fourths of council members would be required to approve a proposed rezoning. Our conservative state legislature eliminated this option in 2015.)

If that’s experienced attorney Bill Brian’s primary argument, you know there’s not much of a legal leg to stand on. But it’s worth also considering that this claim that Town residents don’t know about this proposal is remarkably off-base. The town’s website shows a series of meetings about the proposal starting in October. We covered it then. There have been 18 meetings about the proposal, and that does not include the nine neighborhood meetings held thus far. (Yes, the town is going neighborhood by neighborhood to conduct Q&A sessions.) The town has recorded several videos about the proposal. There’s a survey. Local papers have written articles. The town has used a variety of social media platforms and newsletters. The past few months have been a masterclass in how to effectively use all of the platforms at the town’s disposal in an efficient manner to get information about the proposal out to people.

People know about this proposal. Neighborhood listservs and NextDoor have been abuzz with discussion.

Aside from the legal issues, Brian makes some other arguments that repeat what we’ve heard in the past. The crux is that there have been many “planning fads” in the past which have proven unsuccessful in addressing congestion and affordability, and none have worked, pointing to the high cost of successful transit-oriented developments in the Washington, D.C. metro area, which has high property values and bad traffic. The claim is that “No amount of planning can mitigate the success of that city in drawing people to it,” and that allowing more people to live in unaffordable Chapel Hill will make it even less affordable.

Of course, what he is describing is very different from Chapel Hill’s proposal. Washington, D.C. Arlington, and other communities in that area concentrated development around major transit stations, which provided new options for people to live in neighborhoods where they could get around by walking, bicycling, and taking transit. There are so few places like that to live in our country, and that type of housing is so costly to build. that it’s not surprising people have bid up the prices of non-subsidized housing.

And sure, we’ll concede that NC 54 and US 15-501 have more traffic these days. But that’s because of all the auto-oriented sprawl housing that has been built in Chatham County and Alamance County that generates car trips through Orange County to get to UNC and other destinations, not because of “planning fads.”

What’s in the proposal

The proposal here is to allow individual landowners to build moderately more dense housing on their lots. It’s to allow multiple families to build a joint duplex, instead of needing to find two single-family homes on the same street (after writing that story, we learned from a resident that was the story of one of the teardowns). It’s to enable the town to develop policies that would, for example, help finance a triplex if two of the units are rented out as affordable homes. Neither Washington, D.C. nor Arlington have taken this approach, though Arlington is working to do so right now.

Let’s be clear. Trinsic Residential Groups, the developers of the Aura projects, isn’t going to be building five-story complexes on Boundary Street. Grubb won’t be putting another Link or wet lab on Tenney Circle. What this proposal allows is new homes limited in size and scale to the one-family buildings that are currently allowed in the zoning district. The only difference is they can accommodate more families. We’ve discussed this before – R-1 and R-2 aren’t going anywhere.

Plus, he adds “Additionally, every person who lives in one of these new multi-family units is going to need and want a car, because no matter how walkable the area near campus may be, folks still need to go the grocery store and visit locations outside the immediate campus area, and will choose to drive rather than walk on hot, cold, or rainy days.”

Well, at TBB we have less than one car per adult in our households, so we’re not sure that’s accurate (and we don’t think a little cold or heat is enough to dissuade the hearty residents of Chapel Hill). In a neighborhood near downtown, like the households that paid for this letter, it is perfectly feasible for a family to get by with fewer than one car per adult. While it’s nice to assume that every adult wants or can afford to purchase and maintain their own car, the data says otherwise, including in Chapel Hill and Carrboro.

This letter is more fear-mongering, though slightly different from what we’ve heard before. In this case it’s not that modest Chapel Hill neighborhoods will be gentrified and moderate-income homeowners pushed out, it’s that very wealthy neighborhoods will be forced to change. In either case, it’s not worth the legal fees it cost to produce it.

Although we are still trying to locate Lennox Gardens.

Excerpt from the letter from attorney Bill Brien on March 10, 2023, which references expensive condominiums which have been built in
I love the condominiums at Lennox Gardens. Besides the typo, the “Glen Lennox” apartments are not condominiums. So it’s doubly wrong.

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Geoff Green, AICP lives in Chapel Hill. In his day job he's a practicing urban planner; in his spare time he rides his electric bike around town and advocates for improved facilities so that everyone can...