After six nights and 33 hours of testimony and deliberation, the Harnett County Board of Adjustment reached a decision this week regarding a Conditional Use Permit for a regional landfill.  It was a marathon.  I know, because I was there.

             Was it a record?  I don’t know.  My previous marathon was a 5 day, 24-hour hearing in Statesville over a special use permit for an asphalt plant. 

             The hearing demonstrated why we desperately need quasi-judicial proceedings and, despite what I consider to be demonstrable legal flaws in the decision itself, provided a showcase example of how a BOA should operate.

             Quasi-judicial proceedings establish evidentiary frameworks for unpopular but necessary land uses.  Without them, the alternative is a decision based purely on emotion and, sometimes, hysteria.  Or bad math.  (Let’s just count the number of people in the room for and against and let it be “democratic” despite what our comprehensive plan says, despite what our zoning ordinance says, despite what our staff says, and despite what our planning board says).

             A few years ago I tried to count each county and municipality where I had handled some form of land use matter and quit when I had gone some distance north of 100.  The number has risen since.  I think Monday night was the first time in all those jurisdictions when I heard a board member calmly note the obvious – that those who are neutral and in support never come to a hearing, with the implication being the danger of discerning the true nature of public sentiment from the number of people in the room who are opposed. 

             Quasi-judicial proceedings help protect against claims – as we had – that wells 1.5.miles away will be contaminated, even though groundwater didn’t flow that direction and only moves a few feet per year.  That school children will be endangered even though a 150 page Traffic Impact Analysis stated that there would be “no net increase” in trucks as an existing sand mine is closed down and the site is transformed to a waste facility.  And that the facility would be subsidized by the county, even though it was completely false.

             And quasi-judicial proceedings create a record that can be reviewed by a superior court judge for errors of law and to make sure the evidence was material and substantial rather than flimsy and conjectural. Whether there will be an appeal in this case or conversion to yet another use has not been decided.

             But my other point is that this BOA was among the best I’ve ever seen in how it handled the hearing itself.  Each night board members systematically disclosed calls from the media and emails from neighbors and how they handled them. They disclosed civic and personal connections with witnesses.

             The board chair did a better job ruling on objections by attorneys than most judges I’ve been in front of, and he gave some leeway to members of the public to stray from true evidence (in one case, a speech on “the purpose of man”) and to relate blatant hearsay conversations while instructing and reminding board members what can and cannot be considered as evidence.

             At relevant times the rules of the hearing were explained to audience members; the chair did not flinch when some witnesses asked to be affirmed instead of swearing an oath; the rhythm of board questions and cross-examination was orderly; and the atypical nature of the hearing was recognized and accommodated.

             But it doesn’t mean there weren’t flaws.  If there is an appeal – and I’ve been in many – it’s not personal.  I think this board expects the applicant to seek judicial review and will be nonchalant about it.

             One final note: I’ve learned never to underestimate the importance of working with good staff, and whoever assembled the Harnett County team did a pretty darn good job.  After two years and about 100 blog posts, this is the first time I’ve taken time to mention the behind-the-scenes staff who gave straight-up information to both sides, who asked tough questions, who knew their ordinance, who were pleasant in every circumstance, who did not hesitate to give you an opinion, and who did not display biases one way or the other.  And they logged 33 hours on six different nights, often not leaving until past midnight.

             To each of them I simply say “thanks. You serve your county well.”

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Tom Terrell

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes…

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes parts of Virginia and South Carolina. His many clients are involved in commercial and residential real estate, solid waste hauling and disposal, telecommunications, quarries/asphalt and miscellaneous litigation related to permit denials, vested rights and rezonings.

He has published numerous articles and speaks regularly to legal, governmental and business groups on a variety of issues related to land use and zoning.

Mr. Terrell has served as a leader in numerous civic and legal endeavors, including Chairman of the Board of Trustees of the N.C. State Health Plan, Chairman of the Board of Trustees of Winston-Salem State University, and service on the Board of Directors of the UNC-CH General Alumni Association, Board of Directors of the High Point Chamber of Commerce, Board of Visitors of Guilford College and Board of Center Associates of the Center for Creative Leadership, and as a founding member of the N.C. Bar Association Zoning, Planning and Land Use Section.

More information can be found at https://www.foxrothschild.com/thomas-e-terrell-jr/.

Mr. Terrell can be contacted at mailto:tterrell@foxrothschild.com.