Can proposed Lake Wylie, Fort Mill housing rules be enforced?

Moves to limit growth in some of the fastest growing parts of York County are being slowed by concerns about how enforceable their language would be in practice.

The concerns arise just as two separate measures move forward to address growth concerns in areas quickly filling in with new residents.

Almost a year and a half after the idea was shelved, York County Council revived the idea of a Lake Wylie overlay district on Monday. The vote was a reaction to a similar proposal to freeze new housing construction in the Fort Mill township, another fast-growing part of the county.

In its latest version, the overlay would restrict housing options within a mile of the “470-foot elevation contour” of the lake. Councilman Bruce Henderson, a long-time advocate for some kind of restrictions on lakeside development, proposed the ordinance and got a majority of his colleagues, some of them skeptical of the proposal, to approve an initial reading 5-2. Chairman Britt Blackwell and Councilman William “Bump” Roddey voted against the proposal.

But county planners worry just how much of either proposal will be enforceable. Planning Director Audra Miller told the council Monday the overlay restrictions outlined in the ordinance raise concerns among the planning staff.

As approved, the ordinance would provide for “conditional zoning” for apartments, townhomes, condominiums and hotels in the Lake Wylie area. But Miller pointed out that conditional zoning isn’t allowed under state law.

“That sounds like a special exception,” she said of the ordinance’s wording, “and that needs to go through the Zoning Board of Appeals.”

Instead, Miller told the council they could reclassify all multi-family developments as a special exception that requires county review; the county could impose new development standards; or multi-family uses could be removed from the relevant zoning districts entirely.

Likewise, the ordinance’s call for a 35-home annual cap on residential developments larger than 10 acres would also be legally problematic.

“I’d like to know where that number came from, because we need to have some kind of basis for when we limit something.”

But Henderson pleaded with his colleagues Monday to get the measure passed, after similar legal concerns torpedoed an overlay proposal in 2014.

“I’m not going to be drawing Social Security before we have this together,” he said. “For two years, I’ve been talking about this. Now we need action. The citizens have gotten involved and told us what they want. Please do the right thing, whether you like me or not.”

Henderson also said he wanted to see budget funding approved this year to complete a watershed overlay for the Lake Wylie area.

The county’s other effort to halt new housing, an effort to freeze permitting or rezoning for new residences in the Fort Mill township, may also need tweaking. Councilman Michael Johnson, the sponsor of the draft ordinance the York County Council voted on April 18, asked that it go to the county’s planning commission with a recommendation to ignore the parts the county attorney had advised violated state law – an apparent reference to a halt to any new housing plats or site plans for residential development receiving county approval.

“By state law, the county has 90 days to take action after some files a plat,” Johnson said. “It will be at least 180 days until this freeze ends in December.”

But Miller said she could only present the ordinance to the commission on Tuesday as it was passed by the council. So, the council instead will consider amending the plan at its May 16 meeting before the measure heads to the planning commission in June.

As to what comes after the proposed moratorium ends at the beginning of 2017, council asked Miller to focus on strengthening its ordinance on traffic impact analysis and develop standards that may allow the county to limit housing growth in the future.

“If the freeze is just to appease the people who are anti-growth, it’s not worth it,” Johnson said. “This is a way we can substantially change the way we do business, with a traffic impact analysis and a comprehensive land-use plan ... then we can get those mechanisms in place.”

But Johnson warns some Fort Mill residents won’t be satisfied with the results, as projects that are already underway will be unaffected by the freeze.

“So much development has been pre-approved,” he said. “People think ‘good, this will stop such-and-such.’ And you have to tell them that it’s already been pre-approved, or it’s in the town of Fort Mill or Tega Cay.”

This story was originally published May 8, 2016 at 7:27 AM with the headline "Can proposed Lake Wylie, Fort Mill housing rules be enforced?."