Today’s blog post is the first in a series of glimpses and insights into land use and the economy from the perspective of citizens who are experts in their field.  In coming months you will hear from developers, planners, mayors, environmentalists, builders and others.

            John Davenport owns Winston-Salem-based Davenport Transportation Consulting, a firm that now consults statewide as well as in Virginia and South Carolina.  He is a graduate of N.C. State and is respected by elected bodies, developers and transportation departments for his knowledge as well as his integrity.

What made you decide to become a traffic engineer?

When I first got out of school, I thought I wanted to design roads.  However, once got a chance to work with the Roadway Design unit within NCDOT, I realized that the projects they worked on took years to plan and build.  I wanted to work on projects I could see built in a relatively short period of time.  Traffic Engineering gave me that opportunity.  First with NCDOT, where I was called upon to solve many of the day-to-day traffic problems around the area; and later when I started my own practice and had to do the same type of work for a wider variety of clients.  Traffic Engineering is about problem solving , which I thoroughly enjoy.

Was it difficult taking that first step to start your own company?

Absolutely, I had worked with government for 10 years, so I was used to getting a check every two weeks.  The thought of not knowing how much I was going to make was not very comforting.

How did you grow your business?

By trying to do a quality job with my clients, and treat everyone as fair as possible.  I look for win-wins.  That does not always happen, but that is what I shoot for.  My dad taught me that the best marketing strategy was a satisfied customer.

How has the economy affected your business and the services you offer?

90% of my original clients have either gone out of business or had to significantly scale back what they were doing.  This has led us to expand our “product line” and service area.

What types of new products and services have you added?

Construction engineering and inspection, transportation facility design, planning, bicycle lane design, sidewalk design, in general more multi modal planning and design work.

Do you see any signs of a recovering economy?

 Some smaller projects are beginning to appear, and some of the older projects that were on hold are starting to move forward – however, nothing like before.

 Any predictions as to when a full recovery will occur?

 I can’t say for sure.  What I can say is that I expect it to look a lot different than the last decade – which was unsustainable. A lot of the speculative projects that we worked on will never be built.  There are also a lot of lots and partially completed projects on the market, which will weigh on the need for new developments.  Additionally vacancy rates are still high for commercial space.  On the government side, communities will begin to feel the full brunt of the recession hangover as the stimulus money begins to fade.  Public transportation projects will be impacted.  I predict there will be more redevelopment projects, as well as projects that are scaled back from their original scope.  We are already starting to see projects that propose to revitalize defunct/bankrupt residential subdivisions into other uses. Public sector projects will be less plentiful until the recovery begins to fill the empty coffers of the local and State governments.  Hopefully full recovery will be sustainable growth.

             [To read previous blog posts, continue to scroll down or click on a category of interest in the right hand column.  To be alerted when a new post is published, simply click the “sign me up!” button above.  If you learned something, please forward this link to others who also might benefit.]

            Last week the Scotland County Board of Commissioners voted not to allow expansion of an existing but closed landfill.  Opponents won the war, however, when they won the battle of “trash talk,” a linguistic victory that occurred long before the Board of Commissioners’ vote.

             A modern landfill is an engineering success story for handling solid waste. But nobody, including journalists, elected officials and citizens, can hear that story when it becomes a narrative about a “megadump” for “trash” and garbage.”

             Opponents won the trash talk battle, and the vote was foretold.  Both the Laurinburg Exchange and the Fayetteville Observer referred to the facility in articles and editorials as a “megadump.”   They discussed, as did citizens in letters to the editor, how thousands of tons of “trash” from outside Scotland County would be “dumped” in their backyard. 

             As with other political and policy issues, the available vocabulary often shapes the position one ultimately takes. 

             Every single citizen in Scotland County generates waste.  It seems everyone there is comfortable with the hypocritical position that they can send their waste to disposal facilities in somebody else’s county, but nobody else’s waste can be imported into theirs.  When landfill franchises or rezoning proposals are discussed at public hearings there is always at least one person who calls for a “regional solution.”  “Regional solution” is code for “let some other county dispose of the waste we generate.”

             Consumption of goods requires an option for disposal just like eating food requires a place to flush.  For our bodies to thrive, we have to eat.  And for our economy to grow, we must consume.

            [To read previous blog posts, continue to scroll down or click on a category of interest in the right hand column.  To be alerted when a new post is published, simply click the “sign me up!” button above.  If you learned something, please forward this link to others who also might benefit.]

            For several years the same drama with the same plot has been played out in hamlets across America: Walmart wanted a new store on a chosen tract but the company itself – not the merits of the land use decision – became the focal point of local debate.  As I have written before, and for reasons I have yet to fully understand, Target, Kmart, Lowe’s, Home Depot and other large box retailers seem to get a first round bye.

             Walmart is (was?) a lightening rod for public hearing commentary unrelated to traffic, density, good planning or design.  And I know.  I have served on the front lines with Walmart on three occasions.  I wanted to talk about traffic and opponents wanted to talk about employee benefits. I wanted to discuss consistency with the local comprehensive plan and opponents wanted to talk about working conditions in overseas supply factories.

             It’s hard to win a heated zoning battle when opponents place a ten-gallon black hat on your head long before the hearing begins.

             Which illustrates an important point.  Land use decisions are seldom about land use.  These decisions are often made in a tempest of accusations, fears, angers and other negative emotions that overshadow the rational aspects.

             When it comes to being on the winning side of a city council split vote, a company’s or a developer’s reputation can be everything, something Walmart did little to address for years.

             But at some point between now and the last time I worked with Walmart the company had a head-slapping moment.  It finally woke up to the fact that its signature architectural trade dress (the large, bland, gray building) turned America off and it changed it much for the better.  It realized that it could draw shoppers through single-themed advertizing related to low prices, but ignored the obvious fact that those shoppers often didn’t sit on the local city council.

             Today, Walmart is keenly aware of its image.  Like any good company that deals with millions of folks on a daily basis, it now places reputation and public relations near the top of its priority list.  Its public relations consultant in North Carolina is the best in the business.

             Walmart has undertaken several green initiatives and makes sure that you hear about them.  Its stores now look more like a Main Street façade, and it doesn’t fight local efforts to require it.

             And just last month, Walmart announced that it will commit a quarter of a BILLION dollars for the purchase of refrigerated trucks and other equipment so that it can deliver an estimated $2 BILLION dollars to the nation’s food banks over the next five years.  Although it has given to such efforts in the past, it is – according to news releases – doubling its efforts to serve the nation’s hungry.

             A local government should not, in any sane world, permanently rezone 30 acres for major retail use merely because the applicant is providing food to poor people 2,000 miles away.  But I live my life in local government meetings, and I can tell you that we don’t live in a sane world.

             Walmart is an American success story, and I’ve been proud to represent it on a few occasions at local hearings. What it has done is to find a newer and larger white hat that it can wear to the next showdown.

             So . . . while BP is struggling to get new gas stations approved in Minnesota because of oil-slicked pelicans in the Gulf, Walmart will be opening new stores everywhere because its public image is, with great attention and effort, quite shiny.  I think parts of the story have always been there.  They just had to be told.

             [To read previous blog posts, continue to scroll down or click on a category of interest in the right hand column.  To be alerted when a new post is published, simply click the “sign me up!” button above.  If you learned something, please forward this link to others who also might benefit.]

3-D technology in movies – and now TV – certainly enhances the visual experience, especially in cinematic phenomena like Avatar.  But is there a 3-D element to a rezoning protest petition?  I don’t think there is, and you’re thinking “what’s he talking about??”

             Let me explain.

             North Carolina allows property owners within a rezoning tract’s surrounding buffer to sign a protest petition.  Sufficient signatures on the petition will elevate the city council vote requirement to three-fourths before the rezoning ordinance adoption is allowed. 

             But condominiums – a common form of property ownership – pose some troubling questions, and 3-D protests are only one of them.  For example, 1) how should we consider common area property when all of the common area owners have not signed the petition? 2) must the condos themselves to which the common area is attached be within the 100 foot buffer? 3) when a condo (or any property) is owned by multiple owners, can one owner sign for his or her spouse or co-owner, and 4) what is the effect of signatures from above-ground property owners, as would be the case with multi-story condominiums?

 The Statute

 Let’s look first at what the N.C.G.S. 160A-385(a) says and then explore these issues. 

 (a) Qualified Protests.
(1)  . . . In case, however, of a qualified protest against a zoning map amendment, that amendment shall not become effective except by favorable vote of three-fourths of all the members of the city council. . .

(2) To qualify as a protest under this section, the petition must be signed by the owners of either (i) twenty percent (20%) or more of the area included in the proposed change or (ii) five percent (5%) of a 100-foot-wide buffer extending along the entire boundary of each discrete or separate area proposed to be rezoned. A street right-of-way shall not be considered in computing the 100-foot buffer area as long as that street right-of-way is 100 feet wide or less. When less than an entire parcel of land is subject to the proposed zoning map amendment, the 100-foot buffer shall be measured from the property line of that parcel.

 Nightmare on (Jamestown’s) Main Street

             Jamestown, N.C. planner Matthew Johnson recently faced all of these issues in a rezoning where the property owners signing a rezoning protest petition lived in three-story condos that extended into the rezoning tract’s buffer, but all of which were not in the buffer themselves.  Rather, the buffer was comprised primarily of the HOA’s common area.  The HOA itself did not sign a protest petition, and some of the spousal signatures were (to me) written by one and the very same person.

             It was a planner’s nightmare: lots of angry neighbors, a divided council, a respected citizen as the applicant, general statutes that were essentially silent on all of the key issues, and a land use attorney (me) ready to challenge the town if he made the wrong call about the validity of the protest petition. But under the circumstances, Matthew handled it conscientiously and with grace, relying on counsel from the UNC School of Government, and a readiness for the chips to fall where they fell. (The request was denied, so the issue never had to be – or got to be – litigated).

             In consultation with the School of Government, Matthew was advised to take each condo owner’s percentage share of the common elements and to total those percentages to see if they reached the necessary threshold.  Whether the condo itself was within the common area and whether the HOA itself had signed a petition weren’t part of the equation.  But there were several things wrong with the advice he was given. [To be fair though, faculty at the SOG typically bat in the .900 range, which is more than twice the combined lifetime averages of Ty Cobb (.366) and Rogers Hornsby (.358) who are the #1 and #2 holders of the lifetime batting average record]  But back to the misplaced advice.

             Cities and towns only have the authority granted by the General Assembly.  And when the adopted statute painstakingly delineates a certain process – in this case actual ownership of the buffer you can place your feet on – cities are not free to ad lib. When the School of Government suggested that Jamestown use a percentage-of-ownership calculation, ignoring that some of the condos were outside the buffer and that only the HOA had the authority to pledge or alienate the common elements, it left the realm of legal counsel and entered the world of rule-making.  What it should have done was to advise Jamestown that the statute was clear on what the town could do, was silent on these issues, and therefore the only safe conclusion was that the protest petition was invalid.

             Some things should be clear.  For purposes of validating a protest petition, if the condo itself lies outside the buffer, it is a huge stretch to include a percentage of the common area within the buffer yet owned by someone whose deed is for real estate outside the buffer.  This is especially obvious when that distant owner could not – without the HOA’s participation – take any action affecting his or her ownership percentage other than perhaps to sell the unit.

             With respect to property with multiple owners, I’ll just go out on a little limb here and proclaim that it was not the General Assembly’s intent for co-owners of land within a buffer to make assumptions and start signing all of their fellow owners’ signatures, whether it is your spouse of 50 years or your identical twin brother.  But this issue has never been litigated.

             Finally, what about protesting in 3-D?  Here’s the rub.  The statute quoted above creates a buffer measured entirely in two-dimensions along the geometric plane that you and I call “the ground.”  There is no three-dimensional element to this buffer.  Period.  So what would one do if owners in a condominium building covering a mere 2% of the two-dimensional buffer could aggregate their air rights above the ground to create more than 5% of the 100 buffer?  Hypothetically, one could aggregate air space units and, if the building were tall enough, cover less than 5% of the buffer yet acquire signatures for more than 100% of the buffer as a two dimensionally measured space.  As written, the statute doesn’t work that way.  The statute is an attempted balancing act between two perceived interests.  Allowing 3-D aggregation of air space above the buffer creates an unintended (and statutorily unmentioned) advantage to neighbors.

 And the biggest issue of all? 

             The biggest issue of all is that there is no power granted to citizens in this state that is greater than the power bestowed by the protest petition.  No power.  Anywhere.

             That’s not a hyperbolic statement.  There is no greater power.  A twenty dollar bill to the first person who can name one. (And I’m excluding powers vested in an office but exercised by an individual, such as the power vested in a judge to sentence someone to life in prison).

             With a protest petition, one person who owns 5% of a buffer surrounding a tract of land – one person – can take away an entire city’s right to have a certain decision decided by majority vote.  Now that’s power.

             And when the club that one citizen has been handed can be abused to the detriment of the rights of others, then any liberal, expansive reading of the statute granting that power is more than contrary to the canons of statutory construction.  It is wrong. 

             NCGS 160A-385 should be amended to deal with three dimensional protests within a two dimensional buffer, how common areas within a buffer must be treated, whether condo owners with outside-the-buffer units can use common area ownership, and whether the actual owner – and all owners of a tract – must sign a protest petition before that tract can be counted.

 WRITER’S NOTE:  Thanks to many of my readers for being patient with me while I took several weeks off from this blog to write a chapter in a forthcoming book on telecommunications law from the municipal perspective.  I’m sure you’ll rush out to read this chapter that will appear in an Aspatore Books series.

  [To read previous blog posts, continue to scroll down or click on a category of interest in the right hand column.  To be alerted when a new post is published, simply click the “sign me up!” button above.  If you learned something, please forward this link to others who also might benefit.]

            Technology’s increasing control over our lives became absurdly comical last year when, for the first time in 52 years, I became obsessed with the length of my thumb nails, the only “tools” I had for pressing the keys on my new blackberry.

             But a day doesn’t pass when I’m not experiencing another new – and positive – effect technology is having on our ability to govern ourselves at the local level. If Thomas Jefferson could be brought back for a day he would be more than amazed.  He would be proud.

             The examples are many. 

             I can sit at my computer and find the website of any local government in the state within seconds.  In less than the time it would take to go pour a cup of coffee I can ascertain who its governing board members are and when they meet, learn the names and contact information of planning staff, find an electronic copy of its development ordinance, and hit the print button to self-publish a copy to take with me to a meeting in that jurisdiction.  Would you like cream and sugar with that?

             Zoning maps and comprehensive plan maps used to be available – for a price – when you got into your car and drove to city hall to find a hard copy.  Now, not only can I find and print color-coded maps off of local government websites, but through the magic of Geographical Information Systems I can apply “layers” and add in blue-line streams, topography, roads, and political boundaries of precincts and electoral districts.

             My generation has experienced the “wow!” factor of technological change for decades, but the applications and experiences of change now occur months, not years, apart.  Unfortunately, several years into the digital revolution, the vocabulary is still Greek to me. Or should I say “Geek”?

             Technology has meant greater governmental transparency. Electronic storage of public information makes it easier for governments to store and provide documents to citizens.  Send the city or county clerk an email request and the documents can come back in seconds.

             Local governments that televise their meetings used to provide you with a VHS tape for a hefty ransom.  Now those same meetings can be watched (and recorded) at no charge weeks later using your laptop while sitting on the beach or on your ipod between innings.

             Surprisingly, citizens with no item on the agenda actually watch these meetings in real time as well.  It might be the month of March Madness and American Idol finals, but there will still be thousands of folks who turn to their public access channel to watch budget deliberations or, in my case, a rezoning case of no particular note.  I know.  In the days that follow a public hearing, nobody will tell me they saw me quoted in the paper, but a dozen folks will tell me they watched the hearing on TV.

             Within the governmental ranks, a police officer can know within seconds whether a suspect has a criminal record; a public works director can tell you exactly where garbage trucks are on their delivery routes; and a traffic engineer in a control booth can alter a road system’s signalization.

             And have plenty of time remaining to get another cup of coffee, with or without cream and sugar.

             [To read previous blog posts, continue to scroll down or click on a category of interest in the right hand column.  To be alerted when a new post is published, simply click the “sign me up!” button above.  If you learned something, please forward this link to others who also might benefit.]

            Cities and counties operate within a confusing matrix of state and federal statutes and regulations.  But when it comes to laws affecting land, another set of “immutable” laws comes into play.

             You can call them the laws of “that’s-just-the-way-it-is” or the laws of nature.  But since I’m the one who has codified them, I call them “Terrell’s Laws.”  (Egotistical, perhaps, but when you codify your set of laws you can name them after whoever you choose).

             Terrell’s Laws did not originate in man-made or human-initiated contexts.  They are closely analogous to the laws of mathematics and physics that often begin with theorems (a proposition proved from other propositions or formulas) and axioms (self-evident truths that require no proof).  I have observed these “laws” over 25 years traveling to city councils and county commissions and boards of adjustment throughout all of North Carolina and parts of Virginia.  I hope you enjoy them.

 Terrell’s First Law of Suburban Expansion

             Give a developer a foot, and he’ll want a yard.  Give him a yard, and he’ll want a pool to go in it.

 Terrell’s First Law of Land Use Advocacy

             A development project’s complexity is inversely related to the ability of a Board of Aldermen to understand it.

 Terrell’s Second Law of Land Use Advocacy   

            When approval of your multi-million dollar project lies in the hand of one swing vote, there is a 4 to 1 chance that the official was recently elected on a platform of improving the efficiency of garbage collection.

 Terrell’s Requiem

             The civility and decorum of public gatherings has declined commensurately with our respect for the men and women who serve on public boards.

 Terrell’s Theorem of Land Use Hypocrisy

             The first candidate to propose limitations on an over reaching government will be the first board member to express an opinion on the best use of your land.

 Terrell’s First Corollary of Land Use Hypocrisy

             Citizens who are morally and philosophically opposed to government telling them how to use their own land are usually the first to demand that government control how you use yours.

 Terrell’s First Law of Municipal Planning

             A municipal planner’s enthusiasm for imposing requirements that increase a developer’s financial risk is inversely related to the planner’s personal risk tolerance.

 Terrell’s First Law of Zoning Regulation

             For every good idea in land use development there are at least two ordinances that prevent its implementation.

 Terrell’s Second law of Zoning Regulation

             A provision deleted from a zoning ordinance will be replaced only by a provision of greater complexity or severity.

 Terrell’s Theory of Expert Testimony

             The expert opinions of ten engineers supported by scientific data and sophisticated computer modeling have a probative value equal to the lay opinion of one local voter.

 Terrell’s Lament

             The average zoning board member prefers to make decisions unencumbered by the available facts.

             [To read previous blog posts, continue to scroll down or click on a category of interest in the right hand column.  To be alerted when a new post is published, simply click the “sign me up!” button above.  If you learned something, please forward this link to others who also might benefit.]

            From the earliest years of the 1900s to World War II, American cities spent increasing percentages of their annual budgets accommodating automobiles on street systems designed for horses, carriages and pedestrians.

            When the war was over, our infatuation with cars and cheap gas led us to build more and more highways to connect us with the shopping centers and schools and movie theaters we were building in our sprawling suburbs.  From the standpoint of land use planning, transportation drove many decisions.

            While we were becoming the world’s economic powerhouse behind the wheels of our Cadillacs and Ford pickups, across the Pacific the agrarian and mostly third world Chinese were wearing funny looking cone-shaped hats and  . . . riding bicycles.

            But world economic domination, like winning-season Tarheel basketball, is ephemeral.  Nations rise and nations fall.  American manufacturing plants have moved to China in numbers that reach into four digits, necessitating an upgrade in China’s roads and its transition to planes, trains, trucks and automobiles.

            The harbingers of a civilization’s ascent or descent have long been analyzed by historians and economists.  I don’t claim to be either, but I did notice this past week that the Chinese transition from bikes to automobiles has been answered by an official American policy to transition from automobiles to bikes.

            To quote humorist Dave Barry, “I am not making this up!” 

            On March 15, Ray LaHood, Secretary of the U.S. Department of Transportation, announced that communities that want federal dollars for road systems must “incorporate safe and convenient walking and bicycling facilities into transportation projects.”  The full text is at http://www.fhwa.dot.gov.environment/bikeped/policy_accom.htm.

            No agency rule-making requiring this change was involved, and no dollars to effect this policy have been appropriated.  But those aren’t the only carrots and sticks available to the federal government.  There is also the power to establish funding criteria.  The power to evaluate who goes to the front of the funding line.  The power to say “no.”

            US DOT also encourages all state and local governments to adopt similar policies.  For Main Street projects, this actually could be great news.  Most local streets have been engineered with some degree of convertibility. 

            But federal dollars, as a rule, don’t fund Main Street projects.  Or shouldn’t, anyway.  Federal dollars fund interstate highways and airports and billion dollar bridges that serve a handful of folks who chose to live on an isolated island in Alaska.

            Interstates 40 and 85 merge and then separate in south Greensboro in a section termed by locals “death valley.”  In my wildest fantasies I cannot imagine retrofitting this section of competing highways to make it possible – let alone desirable – for cyclists or pedestrians.

            The devil, however, is always in the details.

            I don’t run this zoo and have never asked for the privilege, but if I were king of the federal mountain I would require states receiving federal dollars to pass laws and regulations that made sure Main Streets and side streets became, over time,  multi-modal.  Neighborhoods with sidewalks and bike paths have staying power.  Leave the interstates and airports to cars and planes.

            And as for those funny looking cone-shaped hats . . . well, my UNC hat still works just fine. 

            [To read previous blog posts, continue to scroll down or click on a category of interest in the right hand column.  To be alerted when a new post is published, simply click the “sign me up!” button above.  If you learned something, please forward this link to others who also might benefit.]

            One week ago, Sandra Bullock won Best Actress for her portrayal of Leigh Anne Touhy in the movie “The Blind Side.”  One year ago, Apple Computer announced that its east coast “server farm” would be located in Catawba County in the small town of Maiden. N.C.

             Sandra Bullock, Apple Computer, the Town of Maiden and Google.  There are connections.

             The Town of Maiden has approximately 2,500 residents.  Prior to last year it was known for two things:  Friday night football and Halloween.  When the local high school plays autumn home games, plants shut down early in anticipation.  And it’s the only town on the east coast – that I know of – where children come from over a hundred miles away and trick or treaters literally double the town’s population.  Last October many of the local residents were happily able to drop apples into children’s bags.

             “The Blind Side” is a true story of a wealthy white couple’s adoption of a homeless black kid named Michael Oher, now the left tackle for the Baltimore Ravens.  The movie opens with Sandra Bullock’s narrated description of the career-ending compound fracture suffered by Redskin quarterback Joe Theisman when tackled from his blind side by Giants linebacker Lawrence Taylor:

            “Now, y’all would guess that more often than not, the highest paid player on an NFL team is the quarterback. And you’d be right. What you probably don’t know is that more often than not, the second highest paid player is, thanks to Lawrence Taylor, a left tackle. Because, as every housewife knows, the first check you write is for the mortgage, and the second is for the insurance. The left tackle’s job is to protect the quarterback from what he can’t see coming. To protect his blind side.”

             Last spring and summer it was my privilege to have represented the Town of Maiden in its negotiations with Apple Computer.  Before Apple could come we had to rewrite the town’s development ordinance, negotiate a development agreement, negotiate a sewer capacity agreement, and prepare for annexation, special use permits and a rezoning. 

             Throughout the process, my job was also to protect Maiden’s blind side – to make sure every “T” was crossed in the local ordinances and approvals in the event the town was sued by a town citizen who, for whatever reason, disagreed.

             It’s more than a coup for a town the size of Maiden to land a company like Apple Computer. It’s a bonanza.  At a time when every county and town in the state is struggling to meet its budget, Maiden is able to collect in property taxes – even after incentive arrangements – an amount that would make previously impossible town projects immediately feasible.

             But a pending lawsuit against Google was a Lawrence Taylor in the backfield that we had no way to block. 

             In 2006, the state of North Carolina amended General Statute Chapter 105 (the taxation chapter) to exempt “eligible internet data centers” from sales and use taxes.  The legislation was passed for one reason only.  Google – the Google – wanted to establish an internet data center in Caldwell County, but our state’s tax code was punitive.  But it was nothing that could not be fixed by those with the power to rewrite state laws.

             In 2007, three taxpayers represented by former Supreme Court Justice Bob Orr challenged the legislation as unconstitutional.  They claimed that the legislation enacted for Google was just that – just for Google.  It therefore violated the exclusive emoluments, public purpose, fair and equitable taxation, and uniformity of taxation provisions of the N.C. Constitution.  In other words, they claimed Google got favorable treatment that, in the words of Opie Taylor, “just ain’t fair, Pa.”

             The trial court disagreed on the issues of public emoluments and public purpose.  Any company that met all of the limited and exclusive criteria established by the General Assembly could also benefit from these changes in the tax code.  Apple Computer, for example.  And as to claims related to fair and equitable taxation, the trial judge concluded that the plaintiffs lacked standing.

             Standing is a simple concept.  It means that a citizen has been personally injured or harmed in some way that is sufficient to give them a right to summon a judge and jury to decide the case.

             On February 16, the Court of Appeals spoke, and it was a welcomed relief. 

             Economic incentives have been debated and litigated several times.  When properly done, our appellate courts have upheld various forms of incentives as being constitutionally allowed and statutorily supported.  This court’s decision was not noteworthy for its discussion on incentives, but its discussion of standing will be cited in the future for the nuanced distinctions it made between types of taxpayer standing for challenges based upon discrimination.

             Generally, citizens and taxpayers have the right to bring a lawsuit to restrain the unlawful use of public funds. In theory, even the slightest exemption of one person from the burden to be borne by all shifts more of the responsibility to other taxpayers, giving each of them a right to challenge the law.  However, “if a person is attacking a statute on the basis that the statute is discriminatory . . . the person has no standing for that purpose unless he belongs to the class which is prejudiced by the statute.”

             Even if the plaintiffs were correct that the legislation provided Google “unearned and undeserved state governmental favoritism,” the court concluded that “the mere fact that Plaintiffs pay North Carolina income and sales taxes, without more, does not give them standing to challenge the sales and use tax exemption afforded to eligible internet data centers.”  They weren’t members of a class that was adversely affected.

             Sandra Bullock, Apple Computer, the Town of Maiden and Google.  The connections remain. 

             Unless and until the North Carolina Supreme Court decides to hear plaintiffs’ appeal, Maiden’s blind side is covered, Apple may proceed, Google may shift its attention from Caldwell County to its problems in China, and Sandra Bullock’s portrayal of Leigh Anne Touhy remains one of the most memorable performances of 2009.

             [To read previous blog posts, continue to scroll down or click on a category of interest in the right hand column.  To subscribe, simply click the “sign me up!” button above and you’ll receive email notification of new posts.  If you learned something, please forward this link to others who also might benefit.]

             We choose our local leaders for a variety of reasons, including their brains, their ideas, their experience and their party affiliation.  It’s our collective failure that we too often fail to judge them for their backbone in the face of hot-seat controversies.

             No local issue – including taxes, animal leash laws, annexations and low-income housing – requires more backbone than the myriad of issues known to professionals as “solid waste” but to the complaining public as “trash.”

              From pizza boxes to Kleenex to egg cartons to plastic wrapping for electronic gadgetry, we consume and consume and consume, yet fail miserably to provide for future disposal.  In communities across the state and nation we postpone paying for or planning for disposal options, making disposal increasingly urgent and expensive. 

 Trash Happens

             I was on the UNC-Chapel Hill campus yesterday where the lead article in The Daily Tar Heel was “Trash Happens: Now what do we do with it?”  This one sentence jumped off the page: “[Orange County] Commissioners have ruled out building another landfill in Orange County, but the possibility of sharing one with neighboring counties remains.”

             I don’t think a translation is necessary.  The writer could just as easily and accurately have said “Orange County is more than willing to ship its waste to somebody else’s county, but it doesn’t have the political will to propose a new landfill at home.”  The commonly used euphemism is “I support a regional solution.” But it means the same thing.

             The problem is pervasive.  Cities and counties across the state are running out of landfill space faster than disposal options are considered and approved.  And it takes several years – sometimes decades – to site, approve, permit and construct a municipal solid waste landfill.  Although it’s possible to eliminate most of our currently landfilled waste through recycling, most communities are either unable or unwilling to shoulder the financial and political cost.

             A “policy analyst” might describe these decisions – or indecisions – with such sanitized adjectives as “short-sighted” or “ineffective”.  But I’m not analyzing policy.  I’m analyzing people.  To me a more appropriate adjective for our collective approach is “idiotic.”

State and Federal Impediments

             In the first part of this decade five different private companies, investing millions of their own dollars, found five separate towns or counties – all east of Raleigh – that would approve an intrastate or interstate landfill facility in exchange for substantial annual payments called “host fees”.  The state would have nothing of this private solution and imposed a statewide moratorium on all landfill construction, enacted more stringent regulations, and effectively ended each of these solid waste solutions.

             Three weeks ago I worked out of my firm’s Greenville, S.C. office where I picked up the February 17 edition of The Greenville News.  On the top of page 3A was an article titled “Nuclear Power Gets Big Boost.”  The first sentence proclaimed “More than $8 billion in new federal loan guarantees to build two nuclear reactors in Georgia could be the first step toward a nuclear renaissance in the U.S. three decades after the Three Mile Island nuclear accident halted all nuclear reactor orders.”

             But get this.  On page 2A of the same paper, directly across the open page, was another article titled “State Leaders May Sue over Nuke Dump.”  South Carolina stores substantial amounts of nuclear waste at plants or storage sites and has been expecting for decades to ship that waste to the planned nuclear waste facility at Yucca Mountain in Nevada.  However, the Obama Administration (allegedly to appease Harry Reid) is walking away from the 25 year Yucca Mountain compact to accept the country’s waste and store it in this facility.  No substitute facility is planned, yet nuclear production is being ramped up.

             A policy analyst would say “short-sighted,” but . . .

 As Thomas Friedman says . . .

          Nobody has discussed America’s world competitiveness better than New York Times’ Thomas Friedman.  His March 2nd column ran with the following lead paragraph:

             “I was traveling via Los Angeles International Airport — LAX — last week. Walking through its faded, cramped domestic terminal, I got the feeling of a place that once thought of itself as modern but has had one too many face-lifts and simply can’t hide the wrinkles anymore. In some ways, LAX is us. We are the United States of Deferred Maintenance. China is the People’s Republic of Deferred Gratification. They save, invest and build. We spend, borrow and patch.”

             Or as aptly captured in these classic lyrics by the rock group Queen: “I want it all, I want it all, I want it all, and I want it now!”

             Whether it’s household waste or nuclear waste, we can’t increase our consumption today while sticking our heads in the sand when asked about disposal needs tomorrow.

             Planning for – and even thinking about – solid waste disposal requires a multi-decade view.  It requires looking beyond this year’s budget and this year’s election and making decisions to benefit our grandchildren and great-grandchildren at the expense of a few votes in November. 

             I turned 53 years old today. By statistical fluke, my wife did too.  Fifty-three is still young enough to have a long-term view, yet old enough to feel crotchety about elected leaders who only ponder poll surges, campaign coffers and votes. 

 And the Anatomical Solution?

             It doesn’t take rocket scientists to devise solutions to waste disposal.  All we need are elected officials with more backbone to plan for them.  We need officials who understand that our rights to produce waste must be met equally with responsibilities to provide for adequate disposal, even when it means choosing local options instead of the sham “regional” proposal to ship it to somebody else’s backyard.

             After all, trash – like birthdays – happens.

           [To read previous blog posts, simply continue to scroll down or click on a category of interest in the right hand column.  To subscribe, simply click the “sign me up!” button above.  If you learned something, please forward this link to others who also might benefit.]

 

            Like it or not, we live in a world where our most difficult decisions are subjective, debatable and ultimately inconclusive.

 

            These past few weeks I have reviewed and analyzed statutes that (supposedly) provide guidance as to when a board member is incapable of putting self-interest or the interest of someone close to them aside when making a public decision.  It turns out that the statutes are only starting points, and the more you think about them the more you realize how muddy ethical waters can be.

 

            How do we know whether a Board member, acting like a judge in a quasi-judicial decision, can be nonbiased and impartial when his or her former spouse’s biological child is an applicant before the board?  Or the former spouse’s biological child’s spouse?

 

            Actually . . . there’s no way to know and the statutes we must work within are just starting points.  Guidelines.

 

            In the scenario above, the Board member could have had only a marginal connection to the former spouse’s biological child.  Or, the board member could have raised that child as his or her own.

 

            To repeat the issue, local government boards often engage in what are called quasi-judicial decisions where the rules of the courtroom protect an applicant’s or opponent’s constitutional rights. Typical among those decisions would be any decision by a Board of Adjustment or conditional or special use permits or conditional use zoning.   In those situations, the North Carolina General Statutes list situations that are deemed as a matter of law to create conflicts of interest that prevent a board member from being impartial and require recusal.

 

            The final category in this series of blog posts is “a close familial, business, or other associational relationship with an affected person.”  How do we determine when a pre-existing relationship is so strong or compelling that the decision-maker is incapable of putting feelings for that person aside in order to be completely non-biased at a hearing where the person is affected. This

 

Close familial relationship

 

            “Close familial relationship” is an undefined concept.  If I were King of the Universe I would declare that someone within one degree of kinship (parent, spouse, child, sibling) is, as a matter of law, too close for a board member to participate in a decision affecting them.  But that would be an easy and generally noncontroversial fiat. 

 

            It’s the second and third degrees of familial relationship where the slope gets steeper and more slippery.  Some people are very aware of and sensitive to someone being “of the same blood,” which could mean fifth cousin three times removed.  Other folks can’t tell you their first cousins’ names.  I have a second cousin who grew up in my home and I in his. We felt more like something between brothers and first cousins.  Coincidentally, he is equally kin to race car legend Richard Petty as he is to me (through the other side of his family), yet he and Petty have, to my knowledge, only shaken hands once and for a few brief seconds.

 

            Each relationship is different.  Each kinship has its own definition and history.  Whether a family connection is too close for the public’s comfort must be considered on a case-by-case basis.

 

Close business relationship

 

            A “business relationship” is equally squirrelly and undefined.  The point of the inquiry, again, should be whether the board member’s business relationship with an affected party would reasonably prevent him or her from being impartial when the “business relation” would be affected in any material way.

 

            Does the business relationship arise to a fiduciary relationship or is the party just a workplace acquaintance?  Are you co-owners or co-workers?  Do you have a sense of loyalty or friendship through the business relationship that prevents you from doing something that would harm that relationship?

 

            It is initially the board member’s job to point out the relationship for others, including affected parties, to consider.  If the board member fails to do so, the board chair, any board member, or someone with a matter before the board has every right to raise the issue(s).

 

Or “other associational relationship”

 

            The first time I skied – well, actually, the first, second and third time I tried to ski – I started on the bunny slopes and graduated to an intermediate course.  My view of the intermediate slope was the same each time.  As I approached it from the chair lift it looked like a gradual, soft, gentle slope.  But when I hit the slope and started down I was unprepared for the drop, the speed, and, dare I say, slipperiness.

 

            Most of us can identify a “close associational relationship” when we see one.  Towns and counties, large and small, cannot function without close associational relationships in business, politics and civic life.  But for some reason we always think relationships that are “too close” can easily be identified before a hearing begins.

 

            And Dorothy, upon meeting Glenda, the Good Witch of the North, thought she would know what a witch would look like when she landed over the rainbow.

 

            When is a relationship so close that a board member cannot be impartial? The scenarios we are faced with are endless.  What about two men who, for twenty some years, have shared seats at their alma mater’s home football games?  Or who twice a year spend a weekend fishing?  What if the board member made All State as a high school running back because the hearing’s applicant routinely opened holes for him in their opponents’ defensive line?

 

            What about two women who have a standing weekly lunch at the Country Club?  Or who, as children, were best friends and shared all of their deepest secrets?

 

            What about next door neighbors, Sunday School class members, or running club or poker game buddies?

 

            Does the analysis depends as much on the board member’s personality as the facts of the relationship?  Some people are more fearful of making a close friend angry than others, just as some board members lose every bit of stiffness in their spine when two neighbors (voters) show displeasure.

 

            If there is a take-away point here, it’s that fairness and impartiality are moving targets, and quasi-judicial decisions will never be completely “fair.”   All we can do is educate, be vigilant, and be willing to openly and honestly scrutinize business, family and other relationships when impartiality is required.

           

            [To read previous blog posts, simply continue to scroll down or click on a category of interest in the right hand column.  To subscribe, simply click the “sign me up!” button above.  If you learned something, please forward this link to others who also might benefit.]