A recent N.C. Court of Appeals case (Northwest Property Group, LLC v. Town of Carrboro, filed 22 December 2009) provides an interesting glimpse into the insane world of conditional use zoning and its multiple attendant rules.

 The facts

             The December 2009 decision is but one more stop in a journey that started when a developer applied for a conditional use permit (CUP) to construct a Harris-Teeter-anchored shopping center on a 7.1 acre tract where Barnes Street enters Jones Ferry Road in Carrboro.  The entire case hinges on access limitations to the site and whether local rules were properly followed to impose them. Harris-Teeter required its developer to provide a site with more than one entrance/exit, and the secondary entrance was through the side street (Barnes).  Neighbors complained about the traffic that would be created if Harris-Teeter traffic had access to Barnes.

             The developer’s application was ultimately approved by the Board of Aldermen, but only after the Board added 37 conditions, one of which was that the Barnes Street entrance would be limited to emergency vehicles.  The developer did not agree to this condition and sought judicial review.

 Understanding conditions

             “Conditions” is a term more easily defined as “additional restrictions and obligations.”  From a developer’s perspective, there are few conditions that don’t have a price tag.

             But conditions aren’t bad.  A responsible developer will often consider conditions before his pre-application conference with the planning staff.  Then, in a rational discussion with staff about the site’s unique features and problems, he will consider more conditions.  It is staff’s job to help him see what some of those other issues are.

             Part of the developer’s calculus involves subjectively weighing chances of approval or denial if certain conditions are not offered.  Another part of that same equation is deciding whether he can afford to incur the costs and still make money.  After all, land development is a for-profit enterprise involving risks.  Substantial risks.  Rates of return are only generally known, but development costs are usually calculable to a close penny on a per acre, per linear foot or per square foot basis.

            It is only when conditions are imposed from the dais that the process goes awry.  Well-intended board members – who often know nothing about the cash flow issues related to real estate development generally and certainly nothing about the project’s pro forma specifically –  will add burdensome and costly conditions during a motion, and the developer has no way to determine in the moment if he can absorb it. 

             In the present case, my experience suggests that a developer who agrees to 35 conditions is a responsible developer who has worked conscientiously with staff and the neighbors. And when he spends three years appealing two added conditions, there’s a good chance that those conditions really do kill the project.

 The process

             It’s important . . . check that . . . it’s critical to understand that in conditional use zoning a board must make findings of fact based upon facts and evidence that are properly presented to the board.  Because it is similar to what judges do in a courtroom, this type of decision-making is called “quasi-judicial.”  If the board merely voted based upon what it felt like doing it would be acting in what is called a “legislative” capacity where facts and evidence aren’t required.  Or logic or common sense.

             When issuing a conditional use permit, a board may add conditions it determines are reasonably necessary in order for it to make certain findings.  In this case, the board basically eliminated use of Barnes Street so that it could find that the development would not “materially endanger the public health or safety,” one of the local ordinance standards for issuance of a CUP.

             The operative question is whether the board had been presented evidence that indicated closure of Barnes Street from retail traffic was necessary to protect the public from a “material” danger.  The only evidence cited by opponents (evidence that actually was supplied by the developer’s traffic study) is that there had been ten accidents at this intersection over a five year period, making it the third worst intersection in Carrboro.  However, neighbors presented zero evidence that a Harris-Teeter-based shopping center would do anything to “materially endanger” public health and safety or to increase the number of accidents.  No studies.  No statistics.  They did, however, make numerous claims based upon their opinions that their lives would be severely endangered.  In a conditional use permit hearing an opinion is not evidence of a fact any more than a juror in a courtroom simply looking at a defendant and forming an opinion, based on that glance, that he is guilty.  Or not. 

             As Judge Hunter said in his dissent, quoting N.C. case law “Speculative assertions, mere expressions of opinion, and generalized fears about the possible side effects of granting a permit are insufficient to support the findings of a quasi-judicial body.” (Howard v. City of Kinston)

             So what evidence was there that access to Barnes was not a safety issue?  Plenty, but it didn’t stop a political board from making a decision that was . . .  well . . .  political.

             An engineer-sealed Traffic Impact Analysis indicated that the intersection would – after development – operate at “level of service A,” the best category available. Traffic Impact Analyses are based on sophisticated computer modeling and continually updated statistics. They are analogous to a civil engineer’s study of how many tons of concrete a bridge needs to safely hold a 10 ton truck.  The traffic engineer testified at the hearing that this intersection was “pretty far away” from meeting NC DOT standards for a traffic signal.  Neither the Carrboro Transportation Advisory Board nor the Planning Board recommended that Barnes be limited to the occasional fire truck.

             The board’s decision was typical.  Even though this type of development was contemplated by the comprehensive plan and the existing zoning allowed such development (subject to a conditional use permit), lots of neighbors complained and the board reacted politically to unsubstantiated fears and speculative opinions.  Basing an opinion or a condition upon unsubstantiated opinions is OK until you commit yourself to quasi-judicial processes. Then you have to consider facts that contradict the emotions of insistent voters.

             Since this case originated in 2006, only the laws in effect at that time were considered.  This past summer the General Assembly passed Senate Bill 44 which codified the role of a traffic study, saying that, in essence, neighbors who wish to use traffic as a basis for denying a conditional use permit must have hard facts, such as a traffic study.

 The decision

             If you print the opinion off of the Court of Appeals website, it is a 48 page document that gets bogged down in the minutiae of whether Carrboro’s poorly worded ordinance allowed the board to add conditions once it determined that the application met ordinance requirements.  I could have more easily followed a medieval debate over how many angels could safely dance on the head of a pin.

             Judge Ervin’s conclusion that the ordinance allowed the board to add conditions in that circumstance was possibly correct.  But the result was remand of the decision to the town board for findings of fact so that the same case could wind its way through the courts yet again – another three years? – before resolution.

             Judge Hunter simply said, in so many words, forget that.  He could tell from the record that the ultimate decision was clear: there was insufficient evidence to support closing Barnes Street and remand was a waste of everybody’s time and money.

             I’ve been on all sides of zoning disputes, but the injustice on the “added cost” issue is that whoever prevails in a zoning battle need not hire an attorney on appeal. Their legal counsel is paid for by taxpayers because the town attorney represents the board in an appeal.  Only the appealing party has to hire legal counsel.  But such is the cost of development, and such is the cost of living in a country where disputes are resolved rationally, if slowly, in courts of law.

             And if the developer prevails, my bet is that neighbors will use the Barnes Street entrance as quickly as anybody and soon forget the alleged danger as they focus on its convenience.

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