“It’s hard to shoe a running horse.”  That’s not my quote.  It was a comment from the bench by Judge Abraham Penn Jones responding to the Town of Hillsborough’s attempt to bypass a direct court order to issue a conditional use permit in Schaefer v. Town of Hillsborough.

             Hillsborough, however, sore from losing in the Court of Appeals the first time, sought to regain advantage on remand by adding more conditions to an applicant’s permit that would, essentially, nullify the court’s decision.  Hillsborough claimed it was acting pursuant to statutory authority.

             What the town calls statutory authority I call governmental arrogance.  Let’s look at the facts.

             The petitioners in this case, husband and wife developers, owned 2.74 acres in the Hillsborough Historic District – enough for 10 units by right developed as duplexes.  Under Hillsborough’s zoning ordinance they could gain a mere one additional unit – for a total of 11 units – if they met the requirements for a conditional use permit. 

             The Board of Adjustment denied their request after a tempest-in-a-teapot public hearing, but the denial was overturned by the Court of Appeals in August 2009 as an unlawful exercise of legislative power by a board that has no such powers. (As a general rule, governmental decisions for the “general welfare” are legislative decisions which are not properly exercised by a quasi-judicial tribunal).

             The matter was remanded to the town to issue the CUP “without application of any new or different conditions or ordinance requirements.”  But the Hillsborough Board of Adjustment is either illiterate – which no right thinking person would conclude – or it determined that the court’s order did not apply to it.  The BOA proceeded to add new conditions – contrary to the explicit court order – in order to deny the petitioner, in effect, the very CUP the court ordered it to issue.

             So . . . the developers returned to superior court on their second appeal where Judge Jones (as quoted in the developers’ brief filed with the Court) also said this:

            “You don’t get repeated shots at the petitioner over and over and over again.  That’d be like a guy running a hundred-yard dash and the [Town] coming and adding 10 more yards to it at the end.. . . You can’t do that.. . . That defies American jurisprudence. . . . You’re lengthening the track when the race is over.”

             And the second time around, the Court of Appeals agreed.  Again.

             So what’s the lesson?  What’s the take-away-point?

             If you are a literalist, the lesson is merely what the Court of Appeals said, which is that judicial mandates must be followed.  They carry the weight of law.  And Hillsborough is not above the law.

             But there is another lesson here.  And the lesson is that governmental power entrusted to ordinary citizens can be abused – and is abused – on a regular basis, and it takes citizens like the petitioners in this case to fight battles that protect you and me in other venues.

             And why should we thank these plaintiffs?  Because drafting pleadings and doing legal research and dealing with other lawyers and with courts and preparing for arguments is time consuming.  And time consumption by a lawyer translates into money.  Every time a party appeals a decision, each next level costs them somewhere in the low to high five figures or more (and that’s five figures to the left of the decimal point).

             Petitioners in Schaefer went to the superior court twice and the Court of Appeals twice with high-powered legal representation.  Why?  It could not have been because they were fighting for that one unit “density bonus.”  There is no way legal costs could have been justified by that one unit, especially in this economy.

             They appealed – at least the second time – because they felt as though they had been wronged.  It was not about money.  It was about principle.

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