When discussing growth in our town, it’s important to understand the distinction between “by right” projects, and projects that require a “conditional” rezone.
If a proposed project/development is “by right”, it means that the existing zoning is adequate, and there is no rezoning decision for the Waxhaw Board of Commissioners to make. It would of course be illegal for the town to arbitrarily try to stop the project. As long as the project plans are in compliance with town ordinances and zoning, there is no legal way to deny it.
However, if a developer or property owner submits a project plan that requires a change in zoning, that is when the Waxhaw BOC gets to impose conditions and vote on it. By confusing “by right” projects with “conditional” projects, people can get the wrong impression that the BOC must sometimes vote “yes”, or face legal consequences. This is simply not true, and it would make no sense for the board to hold a vote if voting one way or the other was illegal. NC state statutes empower municipalities with broad discretion on conditional rezoning decisions, as discussed in this UNC School of Government piece. And in this piece from 2009, it is noted that no challenges to denial of a rezone have ever succeeded.
“When making a legislative decision the governing board enjoys broad discretion.”
UNC School of Government
Profit-motivated developers would love for governing boards to think they have no choice but to approve their projects. This narrative can emerge as a strawman argument in which those who oppose over-development are painted as extremists who want to break the law. Our former Mayor used this strategy when asked about population growth and rezoning decisions.
No reasonable person wants their local board to break the law, they just want them to be willing to say “no”. Governing boards cannot put their residents first if they false harbor illusions about their legal constraints. It is their duty to understand their powers and exercise them on behalf of the people.
In the clip below, a former Waxhaw Commissioner is heard to say “if you’re going to deny someone, you need to have a good reason”. This statement is false.
In the 2023 Waxhaw 101 educational program that the town runs, the town manager also advanced the claim that voting no puts the town in legal jeopardy:
We also have a current Commissioner who expressed a similar sentiment on her Facebook page:
It is never illegal to vote “no” on a conditional rezone.