Durham’s ‘SCAD:’ Good or Bad?

If you haven’t heard of the 87-page text amendment proposal the Durham City Council will vote on this month—a proposal that, if approved, will have a colossal impact on the city’s future housing landscape—some might argue that you haven’t been paying attention.

Others would say you’ve intentionally been left in the dark.

The proposal, Simplifying Codes for more Affordable Development (SCAD), is the largest privately initiated text amendment the city has received in at least two decades, if not the largest of all time, according to eight people who have spent years tracking and advising on such proposals in Durham.

SCAD proposes a series of sweeping changes to Durham’s Unified Development Ordinance (UDO), a document that spells out local regulations for zoning and land development. Most notably, SCAD’s proponents say, by loosening building and zoning regulations, SCAD would uplift small, local developers and deliver vastly more units of affordable housing.

Opponents say that by enabling developers to circumvent many of the standards, review mechanisms, and community engagement processes typically involved in equitable development and planning, SCAD will open the floodgates for development to occur in ways that accelerate gentrification and displacement.

“It uses attractive language like ‘affordable housing’ that are platonic goods on their own to mask a whole host of changes that have nothing to do with affordable housing,” says Tom Miller, a former Durham planning commissioner who spent three decades working as legal counsel for the North Carolina Real Estate Commission. “Unless, of course, you buy into the trickle-down theory that if we let developers build more housing, it will all be cheaper.”

Last May, two applicants—Jim Anthony, who helms the Raleigh-based development firm APG Capital, and Habitat for Humanity of Durham, the local branch of a global nonprofit housing organization—submitted the original amendment. It has since undergone several revisions. Members of Durham’s planning department, city-county planning commission, and joint city-county planning committee (JCCPC) have weighed in on SCAD’s numerous drafts, as have the community members who have attended the applicant team’s public and private presentations. 

While Anthony and Durham Habitat are the primary SCAD applicants, neither had a direct hand in penning the proposal’s text. Instead, a team of local practitioners whom Anthony hired (and declined to identify) took that on. Anthony and the writer team declined the INDY’s interview requests and wouldn’t answer specific questions related to community concerns but wrote in a statement that SCAD’s content includes “new programs for creating affordable housing, while leaving existing programs intact” as well as “new paths specifically for small-scale commercial buildings, allowing local entrepreneurs small spaces from which to launch or grow their businesses.”

A spokesperson for Durham Habitat wrote in a statement to the INDY that the organization is “the primary provider of affordable homeownership opportunities in Durham,” building and selling around 25 houses a year.

“The tight land market, combined with inflexible zoning, threatens this important work,” the spokesperson wrote. “SCAD gives us a path to continue building homes and changing lives.”

When the INDY asked if the organization supports all of SCAD’s provisions, the spokesperson wrote that Habitat “broadly supports the proposal’s goal” but “would prefer not to comment on specific provisions.” The organization has played an “advisory role” in the proposal, according to the spokesperson. (In the original SCAD application, Durham Habitat wrote that it supports four specific elements of the proposal, including parking requirement modifications and the allowance of residential construction in nonresidential areas.)

The Durham City Council will cast votes on the proposal after a public hearing at its March 20 meeting. The Board of County Commissioners will also vote on SCAD this month, but its decision, which will determine whether the amendment’s provisions apply to unincorporated areas of Durham County, is less consequential than the council’s.

In December, the planning commission—a body that reviews, recommends, and sometimes initiates plans and policy changes but does not have a final say in approving them—voted against approving SCAD, with some commissioners raising concerns about the proposal’s intentions, scale, timing, consequences, and community engagement process.

“This proposal contained no system of checks and balances to ensure affordable housing programs like Habitat for Humanity would be the main beneficiary and not large developers,” commissioner Sarah Chagaris wrote in an advisory comment to the city council.

 In staff reports and in emails obtained via a public record request, planning department staff highlighted similar issues and urged the applicant team to revise SCAD in a way that better prioritizes community interests. (The planning department did not respond to requests for comment for this story.)

While the proposal is being continuously tweaked, the November and January drafts of SCAD that the INDY used for reference during two months of reporting still contain many provisions that planning commissioners, planning staff, and community members have contested, such as offering incentives for developers to create affordable housing while only requiring the housing to remain affordable for five years and allowing certain residential uses within industrial zoning districts. 

Some planning commissioners do support SCAD, such as Garry Cutright, who advised the city council in a written memo that “SCAD doesn’t make [the UDO] perfect, but pushes Durham towards a more efficient use of land.” Cutright wrote while some of his colleagues’ concerns are valid, “we should not throw out the proverbial baby with the bath water.” In a phone call with the INDY, he highlights provisions that would eliminate parking minimums and reduce regulations around accessory dwelling units (ADUs) as particularly appealing.

“We’ll have a little more density in areas that, today, prevent that density from happening,” Cutright says. “You’ll have neighborhoods that are a little more walkable.”

Like Cutright, who owns a commercial real estate firm, planning commissioners and members of the public who voted or spoke in favor of SCAD at the planning commission’s December meeting are primarily real estate and development professionals.

Developers, realtors, builders, and civil engineers are clearly key stakeholders, and SCAD will open doors for them. Their praise, as experienced industry workers, speaks to the efficacy of that intention. 

But many with the expertise to comprehend and comment on the proposal also have a level of self-interest. SCAD is meant to open doors for people who need affordable housing, too. 

So how do city leaders get real community engagement for an amendment of this breadth? And why are developers afforded the opportunity to not just advise on but rewrite the ordinance that regulates their work—and, correspondingly, their profits?

In Durham, city and county governing bodies, the planning commission, or the planning department typically initiate text amendments to the UDO, but private entities, such as in this case, can submit them for review and potential approval for a $3,838 application fee. For lengthier proposals, it’s not uncommon for an applicant to hire practitioners to write and revise the text.

Motivation to change the UDO coupled with financial barriers to entry means that nearly all privately initiated text amendments come from developers, according to former and current planning commissioners.

Nate Baker, an urban planner who serves on the planning commission, says that many developer-led proposals are limited to requests for small tweaks that would help their companies do business.

“For example, Top Golf came, and they wanted to change some provisions [to the UDO] about lighting in the middle of the night,” Baker says. 

SCAD’s unprecedented length, though, speaks to a troublesome and atypical “everything but the kitchen sink” approach wherein the applicants seek an undue amount of influence on the ordinance that regulates their companies, according to Baker.

Several SCAD critics who spoke with the INDY equate Durham’s allowance of privately initiated text amendments to “letting the fox in the henhouse.”

“It creates a huge equity issue,” says Wendy Jacobs, who serves as the vice chair of Durham’s Board of County Commissioners. “Especially with something like this proposal, which is unprecedented in size. It circumvents the government process and the public process.”

Others argue that there are adequate checks and balances for private proposals.

“Developers can’t write their own regulations without it being voted on and approved,” Cutright says. “They can propose things, just like anyone. Any member of the community can do this.”

Durham City Council member Javiera Caballero seconds this, adding that the “fox in the henhouse” metaphor speaks to the public’s tendency to hold developers, architects, and builders to a different standard than workers in other industries.

“Somehow, we have decided that their opinion on the thing they’re trained to do is invalid against our opinion,” Caballero says. “Teachers shouldn’t have input into education? Doctors shouldn’t have input into medicine? Mechanics shouldn’t have input into the automotive industry?”

Baker emphasizes that while the development industry’s input is valuable, the text amendment process could have better safeguards to prevent abuse and heighten accessibility. The city could get rid of the application fee, for instance. Since an existing UDO provision is what enables privately initiated text amendments, the language could be tweaked in a way that limits the scale of developer-initiated proposals or requires signatures from applicants. Or Durham could just do away with private proposals altogether.

“There are quite a few communities that have either long not allowed for private applications or are eliminating that procedure,” says Baker. Morrisville, for instance, doesn’t allow privately initiated text amendments. Wake Forest requires consent from property residents who could experience impacts from a privately initiated development.  

Baker also notes that developer-initiated text amendments often seem to move more quickly than proposals that come from the planning department or commission.

Three years ago, he says, several planning commissioners formed a committee to identify the most glaring discrepancies between the regulations in Durham’s UDO and the goals laid out in its comprehensive plan for growth and development. After formulating a list of requested changes, the committee submitted a text amendment to ask for the “lowest-hanging fruit”: maximum block regulations, which are often used to improve connectivity in communities.

“The process has taken so long,” Baker says, “that we gave up on all the other items on the list.”

Much of the public discourse around SCAD, particularly online, relates to the character of the applicant Anthony. A wealthy developer, Anthony is prominent in local GOP circles and has donated thousands of dollars to right-wing politicians—Madison Cawthorn, Marjorie Taylor Greene, and Jesse Helms, to name a few—whose politics harm the communities Anthony says SCAD will benefit. On his personal social media accounts, Anthony has repeatedly posted transphobic remarks and voiced support for January 6 insurrectionists. 

This paper trail has elicited the expected pushback from residents of a staunchly progressive city like Durham, but it also highlights the complexity of the proposal at hand. For those looking to drum up resistance to SCAD, publicizing screenshots of Facebook posts and campaign finance reports may seem more efficient than writing explanations of the proposal’s provisions.

Still, a handful of people have taken the latter approach.

Over the past month, a group of eight community members with varying backgrounds in planning, tenant advocacy, environmental justice, and real estate law have met on Zoom every few days—for hours at a time—to comb through SCAD line by line (see box).

All eight are neighborhood delegates to the InterNeighborhood Council of Durham (INC), a coalition of communities and homeowner’s associations across the city and county.

The line-by-line team’s primary concerns center around SCAD’s proposed Progressing Affordably Toward Housing (PATH) program, which offers residential density and height bonuses, as well as setback relief, for projects where 25 percent of rental units are affordable at 60 percent of the area median income (AMI), or where 25 percent of for-sale units are affordable at 80 percent AMI. For projects with 25 percent or more affordable units, developers would receive considerable relief from regulatory compliances—and for projects like Habitat’s, with 100 percent affordable units, regulations would be further relaxed, with SCAD removing all dimensional requirements and density restrictions.

After taking these incentives, though, developers would only have to keep their rental units affordable for five years. For-sale units would have no cap on affordability beyond the initial sale. (Durham already has an affordable housing density bonus with a 30-year cap on affordability. While the existing bonus is rarely used, several planning commissioners tell the INDY it could easily be tweaked to be more appealing.)

Miller, a member of the line-by-line team, calls the PATH program the “fig leaf” for the entire text amendment. 

Five years is a trivial shelf life for affordability, he says, and the text doesn’t account for situations that are bound to arise: For example, if a developer sells a property during the five-year affordability period, is the new proprietor bound to the same affordability timeline? 

The PATH program would also lead to a downgrade in the quality of affordable units, according to the line-by-line team.

“Historically, when developers take any kind of affordable housing bonus, they’ve been required to make the affordable units indistinguishable from market units,” Miller says. “But if [SCAD] is adopted, the affordable units can be smaller—they can be accessory dwelling units—and the market units can all be primary.”

While one SCAD provision would allow ADUs to be larger—up to 1,200 square feet and two stories tall, as long as units are not larger than the primary structure, versus the current cap at 800 square feet and one story—Miller says this tweak would come with its own issues: by allowing bigger ADUs, their virtue as a source of relatively affordable housing would be lost, he says, particularly given that SCAD contains no affordability requirements for ADUs. 

SCAD would also allow ADUs to occupy large areas on the grounds of “places of worship:” up to 75 percent of grounds in downtown and urban tiers.

“Under the definition, that could be a small building with a concrete seahorse labeled the ‘Universal Temple of Neptune,’” Miller wrote in a December note to the planning commission. 

For many SCAD proponents, though, loosening regulations around ADUs is key to broadening Durham’s affordable housing options.

Topher Thomas is a high school theology teacher and tiny-house developer who serves as a volunteer adviser to SCAD’s writers. His affordable housing company, Coram Houses, would thrive under some of the provisions that SCAD proposes, he says.

“There’s a small lot that I’m working on right now,” Thomas says. “With the current code, by-right, I could build three [ADUs]. And if I wanted to sell them and give somebody a homeownership opportunity, I would only be able to sell all three to the same buyer … and that would not be affordable.”

With SCAD’s changes, though, Thomas says he would be able to build more—and larger—tiny houses on the lot, and sell each for around $125,000 apiece. 

“The changes in [ADU] size requirements are really exciting,” Thomas says. “If we can do 1,200 square feet, we could have a three-bed, two-bath. You’re talking about a family of five, actually having access to housing at an affordable rate.”

Thomas acknowledges that relaxing regulations around ADUs will invite some developers to “scam the system.” 

“The ways that we put guardrails around that are important,” he says. “But, whether we have that figured out or not, not having [more flexible ADU regulations] as an option is troubling.”

Unless the team drastically alters SCAD in the next 20 days, critics say the city council will vote on a proposal whose applicants have not figured out those guardrails—on ADU developments and otherwise.

“Small developers are not shaping the built environment,” Miller says. “But in order to get advantages to offset the impact of a dramatically rising land market, they’re proposing rule changes for everybody.”

Proponents and critics do seem to see eye to eye on some SCAD provisions.

Several officials who broadly support SCAD have called one proposed change that would allow certain residential uses within industrial districts a “nonstarter.” At the planning commission’s December meeting, for example, vice chair Kimberly Cameron voted yes on SCAD but noted that allowing residential development in industrial areas has “a very storied history of racial segregation” and raises environmental justice issues.

Another provision, which would eliminate parking minimums for new developments, has received support across the board as a way to improve Durham’s walkability.

But taken in tandem with some of SCAD’s other proposed changes, like removing buffer requirements in certain areas, even this tweak would be complicated in practice, according to Miller, who says the amendment’s lack of clarity and regulatory commands would lead to various unintended consequences.

“I’m better positioned than most people, and I admit that I have difficulty keeping up,” says Miller. “And if I have difficulty keeping up, what about the majority of the people who have to live with these decisions?”

Besides a handful of planning commission and JCCPC meetings, the public has had two formal opportunities to view the SCAD team’s presentation on its proposal and ask questions. Both took place last year at the St. James Family Life Center on West Club Boulevard. 

Regina Mays, a mental health coach and longtime advocate for equitable development, describes the St. James presentation she attended as informative but was discouraged by the homogeneity of the crowd, which, she says, mainly comprised development industry figures and vigilant activists.

“The lives that will be affected by these proposed changes did not have equal representation in the room,” Mays says.

For the handful of laypeople in attendance, Mays says the presentation’s rhetoric came across as exclusionary.

“A few years ago, it used to be a space and time where you would hear [developers say], ‘We don’t want to rewrite history. We want to learn from our mistakes,’” Mays says. “But I don’t hear that anymore. I hear more of the language of ‘This is going to happen anyway and you can either be part of the process or not.’ I hear, a lot of times, they say residents [are] not coming out to the meetings, and, well, could they find the meeting?”

According to city emails and documents the INDY obtained, SCAD’s applicant team relied solely on the planning department’s “outreach platforms and newsletters” to publicize the two open meetings at St. James and specifically requested that there not be an option for citizens to join via Zoom.

As far as other community efforts, the SCAD team has engaged five churches in a design charette related to mission-based housing and delivered private presentations to more than 30 groups including local civic organizations, nonprofits, educational institutions, and industry practitioners.

In an August staff report, planning staff wrote that “a majority of the identified groups appear to be development affiliated.” Soon after, one staff member emailed SCAD’s applicant team with a plea to “spend the time with impacted community members, especially historically marginalized, underrepresented, low-wealth, LGBTQIA+, the disability community, [and] rural communities,” among others, noting that “the reporting requirement for affordable housing is not more of a burden than the ability for low-wealth community members to attain and retain housing.”

INC president Bonita Green, also a member of the line-by-line team, invited the SCAD team to present its proposal to the INC after she attended one of the meetings at St. James. 

“There were a lot of things in their proposal that were troubling,” Green says. “Since INC has such a broad reach across the city and county, we thought it would be a good platform for people to hear and to ask questions.”

The SCAD applicant team agreed, but things didn’t go well during the presentation—which Green describes as an “overly simplified slideshow”—nor the Q&A session that ensued.

“​​Someone asked a question about gentrification,” Green says. “[Anthony’s] response was ‘gentrification was necessary.’ I could see the shock on people’s faces. At the end of the meeting, I revisited the question, and that’s when he leaned in and said, ‘Gentrification is necessary to weed out crime and to push out the undesirable.’ So he was very clear on that.”

Donna Frederick, a community advocate and line-by-line team member who owned and operated Durham’s now-closed Playhouse Toy Store before retiring in 2021, attended both of the SCAD presentations at St. James. Frederick echoes both Mays’s sentiments on lack of representation among attendees and Green’s remarks on the slideshow’s reductiveness but adds that even if SCAD’s applicant team were checking those boxes, there would still be issues with the sequence of the larger process.

“It’s backwards,” Frederick says. “It’s like the product comes first, then the community. What really would have made sense is if the developers were asking, ‘What would you like to see improved about building in Durham, from a layperson’s view?’ and then writing a proposal based around the input. That was not done here.”

One thing most stakeholders agree on is that Durham’s UDO—last comprehensively updated in 2006—is in dire need of a rewrite. 

In fact, planning staffers are slated to conduct a substantial rewrite later this year, after the city puts the finishing touches on its new comprehensive plan: a long-range vision, rooted in a robust community engagement process, that lays out future goals for growth and development in Durham. The plan is used to guide subsequent updates to the UDO, and its upcoming iteration has been in the works for more than five years.

The notion of adopting SCAD within the month, then, raises some timing questions.

“To move forward with this 87-page, very, very impactful text amendment before the comp plan is adopted is inappropriate,” says Jacobs. “I would request that only the portions of the text amendment that are in conformity with the proposed comp plan should move forward.”

(In a document, the SCAD team outlined 22 ways in which its proposal aligns with the new comprehensive plan, including “SCAD is going through the approved process for a text amendment, making sure to go above and beyond when it comes to community engagement meetings and listening to the citizens of Durham.”)

Planning department staff, too, named SCAD’s timing as a concern, stating in an August report that “enacting far-reaching zoning changes in advance of a new UDO may be viewed through one of two perspectives: as premature or as an opportunity to test out the effectiveness of these ideas before they are incorporated into the new ordinance.”

Councilwoman Caballero takes the latter perspective.

“That’s the beauty of it,” Caballero says. “It’s like, let’s do it. And if we don’t like it, or if it’s bad, in three years you just say, ‘No, we can’t let them do it.’”

Caballero, along with city council members Leonardo Williams and Jillian Johnson, all expressed strong support for SCAD in conversations with the INDY but said their votes will hinge on the provisions in the final draft. The mayor and other council members did not respond to the INDY’s request for comment.

While the scheduled UDO rewrite could indeed fix some of the issues SCAD seeks to remedy, critics argue that planning staff shouldn’t have to spend time engaging in a retroactive runaround.

If SCAD is passed, its ramifications would come not only from its provisions, Baker says, but from the message that approving it would send.

“Right now, we’re even putting aside the comprehensive plan, and delaying it, so that we can bring developer-initiated amendments forward,” says Baker. “This chaotic environment empowers developers who have the time, the resources, and the understanding of how all the moving pieces work. It empowers them to set the agenda.”

Follow Staff Writer Lena Geller on Twitter or send an email to lgeller@indyweek.com.

Comment on this story at backtalk@indyweek.com.