Last week the N.C. Court of Appeals issued a new zoning decision in Musi v. Town of Shallotte.  Musi brought to light two problems that have plagued land use jurisprudence for decades and only get worse: 1) the evolution of land use law has taken so many odd twists and turns that on some issues nobody knows how we got to the place we are, and 2) our appellate courts have tended for too long to apply the aphorisms and standards of past cases with shallow analysis that is completely divorced from theories of land use planning.

The facts in Musi are easy to summarize:  Plaintiffs challenged the town’s decision to rezone certain properties from a lower to a higher density residential category.

Standing

The town challenged the plaintiffs’ standing to file the lawsuit.  Standing is the legal determination that a party has a stake in the controversy suffiicient to give them the right to seek judicial review. Only then does the court have jurisdiction over the subject matter.

In zoning cases, a local government’s legislative decisions may be challenged by anyone with “sufficient personal and legal interest in an action.”  A “legal” interest is determinable.  A “personal” interest is a vague as it sounds.

However, a local goverment’s quasi-judicial decisions may only be challenged by someone whose alleged damages are “distinct from the rest of the community,” a standard which many courts have reduced to damages to property value.

The problem with this capriciously evolved dual standard is that two different people in separate counties identically affected by the exact same type of proposed use don’t necessarily have equal chances to seek judicial review.  If John Smith lives adjacent to a proposed 250,000 sq. ft. shopping center in County A where the decision is quasi-judicial, he must show that he would be damaged differently than others in the community, enumerate those damages in his complaint and have evidence of those damages in the record being reviewed.  If Sam Smith in County B lives adjacent to a proposed 250,000 sq. ft. shopping center where the decision to allow the use is legislative, his standing threshhold is much lower. 

My point is this: the thought processes required of the elected decision-makers should not control who has standing to challenge those decisions.

Spot Zoning

Spot zoning refers to the rezoning of a small tract of land in a sea of uniformly zoned property.  A court must first determine if it is spot zoning, and, if so, decide whether there is no rational basis, which would make it illegal spot zoning.

Somewhere in our judicial history spot zoning was described by one court as “a small tract of land owned by a single person and surrounded by a much larger area uniformly zoned.”  Every later spot zoning court decision seems to have adopted the “single person ownership” standard without an ounce of thought deeper than “that’s the way previous courts did it.”

Zoning is not about title.  Zoning is about use.  According to the single owner standard, if a 3 acre tract surrounded by miles of low density residential zoning is converted to heavy industrial zoning for a foundry, it is spot zoning if the tract is owned solely by Sally Smith.  However, if the tract is owned by Sally and her brother Sam as tenants in common, it is not spot zoning. This type of rote judicial repetition does little to advance land use jurisprudence.

While working out of our Raleigh office yesterday yesterday I had lunch with Vance Moore of the engineering firm, Garrett & Moore.  Vance is one of the many outstanding environmental engineers I’ve had the privilege of working with on matters related to landfills and solid waste.

One of Vance’s expertises is conducting financial projections of the future cost of waste disposal and storage.  These projections require deep understandings of the mechanics of waste handling, the regulatory maze overlay, and financial accounting.   How much shall a company or city set aside now to maintain permanently a landfill that is capped and has no more income to cover the costs of monitoring wells, leachate removal, etc.?

But the most interesting part of our discussion concerned the many ideas and technologies and startups now moving into the solid waste industry where everybody is looking for a silver bullet that will solve, once and for all, some aspect of the many-headed hydra created by consumption and waste generation.

One of the companies Vance told me about was Arrowbio.  Arrowbio takes municipal solid waste into a facility with a small footprint where it separates the waste into three streams using gravity and water.  Plastics float to the top, metals, glass and textiles sink to the bottom, and organics float in the middle.

According to the company’s claims, 90% of all recoverable waste is removed, diverting up to 9,000 trucks from landfill disposal in one community’s calculations.  The organic waste is recycled for soil enrichment, farming, etc.

I know nothing about this company other than what Vance told me and what I found on its website.  I use it as yet one more example of technology stepping in to create solutions when we have the financial resources and broader community commitment.

 

 

Wal-Mart announced this week that it will begin developing aggressively its “Neighborhood Market” store in areas between Supercenters.  Neighborhood Markets have been around for over ten years but exist in only a few locations. This footprint is 42,000 square feet, about 25% the size of a Supercenter.

One news article speculated that the smaller format would enable Wal-mart to penetrate urban markets and places where the political winds have historically been unfavorable to Wal-Mart.  This is good guess, but off the mark.

The difference between a “regular” Wal-mart and a Supercenter is, essentially, groceries.  The Neighborhood Market is closer to a “grocery story plus” than to a general merchandise store.  The critical distinction is that grocery stores serve rooftops within much smaller radii than a general merchandise store.  Accordingly, Wal-Mart can fill in the gaps between Supercenters with Neighborhood Markets where the primary stock is food.

Would it also enable Wal-mart to penetrate those areas of historic Wal-Mart hostility?  Possibly.

In a previous post (Wal-mart vs. History) I commented that Wal-Mart’s attempt to place a store either in or near Virginia’s Wilderness Battlefield would very likely have been received differently if the name “Wal-Mart” had been replaced with the name of another large box retailer of equal size, such as Target.  Wal-Mart is its own lightening rod.

My guess is that there are some places Neighborhood Markets won’t get the rezoning green light simply because the local populace knows they are owned by Wal-mart.  Opposition will solidify around ownership, but the arguments will be couched in terms of traffic, crime and noise.

            This morning’s New York Times contained an article titled “Nudging Recycling from Less Waste to None,” a description of some communities’ efforts to eliminate practically all landfilled waste.  According to the Times, “Across the nation, an antigarbage strategy known as “zero waste” is moving from the fringes to the mainstream, taking hold in school cafeterias, national parks, restaurants, stadiums and corporations.”

             An underlying but only partially developed point in the article is the undisputed fact that we are producing more and more solid waste while land-based disposal options are fewer as cities and towns sprawl into the country sides and as citizens who produce the waste become more and more hostile to landfills in their community.  Elected officials try to sound wise and forward thinking by calling for “regional solutions,” which is a poorly disguised call for sending one community’s waste to a distant county.

             I read the New York Times every day and generally do not concede to claims of its liberal bias in news reporting.  (Editorials are a different matter).  I noticed, however, that there were no alternative or competing viewpoints expressed in this three-page (online version) article. 

             Let me start.

             The article begins featuring a photograph of recycling on Nantucket Island, an exclusive resort attracting a narrow-based demographic. Upscale enclaves exist sporadically in all states, with upscale being a loose description of a concentration of highly to over-educated habitants or visitors with high net worth who lean to the left of the political spectrum.  Chapel Hill would be an all-too obvious North Carolina example.

             “Zero waste” policies require three things: 1) popular sensitivity towards environmental problems and self-sacrifice and personal commitments as parts of the solution, 2) a government with the ability to understand the broader issues and the backbone to impose such policies or ordinances, and 3) a populace willing to accede to strict “zero waste” governmental policies.

             If there is such a thing as a political “fact”, zero waste policies have about as good a chance of passing in most North Carolina counties as regulations moving us towards zero guns or abolishing the death penalty.  Nonetheless, private companies attempting to solve the mounting waste problems created by the state’s citizens will encounter at every turn angry citizens who make few personal sacrifices yet who call for zero waste policies only as long as the “threat” of a landfill in their area looms.

             In the meantime, North Carolina has a growing population, increasing consumption and waste production, landfills with shortening shelf lives, and fewer and fewer waste disposal options.

            Earlier this week the North Carolina Court of Appeals decided two companion cases with the same name, each arising from the same development in Polk County. McMillan et. al. v. Town of Tryon was filed after the town approved the Tryon County Club’s petition to rezone property from a “P-1 open space zone” to “R-4 Conditional Use Zone” which would allow single family homes and duplexes.

 Standing

             Initially, the trial court dismissed the petitioners’ claim because they lacked standing to bring the case.  Legal determinations of standing in land use cases are farcical at best.

             “Standing” is a legal concept that requires a party to have a stake in the matter sufficient to allow them to initiate a legal challenge. It’s a principle born of common sense and practicality.  Without it, the number of suits filed for sport and entertainment by uninvolved meddlers would explode.

             In land use cases, for reasons I have never understood, counties and towns actually can change the standard for determining standing in local cases merely by determining whether the decision to allow a particular use is a legislative or quasi-judicial decision. Additionally, when standing is not even an issue before the board requiring evidence to be presented, courts nonetheless look to evidence in the record on this issue – evidence that one was not required to supply at that stage.  And North Carolina courts for decades merely repeated aphoristically the broad standards of previous cases without analyzing the principles of standing.

             My favorite example pertains to a conditional use permit in Boone where a developer wanted to place a 96 bed assisted living facility literally at the end of the Boone Airport runway.  Even though “material danger to health and safety” was a CUP standard and several pilots testified as to the danger to their lives if the use were allowed, prevailing cases would have indicated no standing because such evidence did not relate to property values.

             In the first McMillan v. Tryon case, the Court of Appeals overturned the trial court and found standing because one witness testified about inadequate roads to support school buses, noise, traffic, problems with septic tanks and springs, etc., and because the North Carolina Supreme Court has only recently, in Mangum v. Raleigh Bd. of Adjustment, allowed such testimony to invoke standing. [Disclosure: two of my partners argued the case for petitioner that led to an appropriate and much-needed expansion of this standard]

 Quasi-Judicial Sausage

             Otto Von Bismarck was alleged to have compared the ugliness of making laws with the same messiness required to make sausage.

             Quasi-judicial proceedings in land use cases in North Carolina could be added to the list.  Our appellate courts for decades have struggled with what they are, when they are required and whether certain procedures are allowed.

             The issue in McMillan was whether the decision should have been legislative or quasi-judicial when by case law rezonings are legislative yet the local ordinance required the rezoning decision, which was accompanied by a conditional use permit, to be quasi-judicial.

             The Court noted that the Tryon procedure was to engage in sequential decisions, with the first being the decision to rezone and the second being the decision whether to issue a conditional use permit.  It noted:

             “Although Chrismon, Massey and Summers make clear that a completely legislative process may be employed when a county or municipality seeks to use  conditional use zoning, if a political subdivision chooses to adopt a consolidated quasi-judicial process in conditional use zoning, we recognize that process as another valid means to exercise the valuable flexibility conditional use zoning offers when regulating land use.”

             In 2005 the General Assembly did a minor overhaul of zoning legislation, and in 2009 it enacted S44 which codified the case law rules governing quasi-judicial proceedings.  These types of hair-splitting confusions and appeals, nonetheless, will continue.

The past three days I’ve attended the annual meeting of the North Carolina Chapter of the American Planning Association (NCAPA) that met at the Greensboro Marriott adjacent to my law office.  Approximately 500 attendees from across the state attended seminars and discussed such topics as new legislation, urban infill, alternative methods for financing public improvements through the development process and transportation planning.

The first evening of the conference my law firm hosted a minority networking reception.

NCAPA meetings always have strong attendance, but this year’s conference was heavily attended for one reason only. Planners with AICP certification need several hours of professional credits related to continuing education.  Yet, in this year’s economic downtown, more and more local governments cut travel expenses and continuing education out of their budgets.

Planners, in a good economy when development is hot, are generally overworked and under paid.  Many of this year’s attendees had to dip into their own pockets in order to attend to get their credits.  Without this requirement, many of them would have sat out of this year’s conference.

I’ve been a speaker at three previous NCAPA meetings and attended this year because it was so close and because my practice footprint takes me across the state and into many of these planners’ jurisdictions. I consider them my professional colleagues and friends.  Although I scooted back and forth between my office and the sessions I wanted to attend, it was a great conference with great fellowship.

It was great to see Kaye Graybeal and Ron Satterfield of Wilmington with whom I recently negotiated a huge development agreement on behalf of Newland Communities; Leslie Bell, Director of Planning in Brunswick County, who described his office’s shift from planning to enforcement of bonds after numerous developers left or filed for bankruptcy; Glenn Simmons, a planner in Winston-Salem whose candor and professionalism I’ve always appreciated; Jack Kiser, long-time planning director in Gastonia, whose office I recently worked with in rewriting a cell tower ordinance; Sherry Ashley, a planner in Statesville who was helpful to all sides and maintained her cool 18 months ago when I represented a company in a long-fought battle for approval of an asphalt plant; and several civil and transpoprtation engineers I’ve worked with on everything from shopping centers to landfills to rock quarries.

This year’s president, who did an outstanding job, was Rodger Lentz.  Rodger and I met when he was a planner in in Cabarrus County and I was representing APAC on a matter related to its plant near the Concord Airport.  Rodger has moved up and now is in Wilson, N.C.

Photo of Tigard bike path
Photo of Tigard bike path

            This morning I spoke in Wilmington at a meeting of Coastal Carolina Tomorrow, the local developer’s trade organization.  The topic was exactions.

             An exaction, roughly described, is an ad hoc payment or concession leveraged by governmental coercion.  In most situations arising from real estate development, exactions make sense, they are negotiated, and they are fair.  But a local government with the ultimate power to say “yes” or “no” to any project has bargaining power, and it’s a power that occasionally needs to be reined in.

             Limiting our government’s power to take from us is a bedrock principle of the United State Constitution. As a nation, we have existed continuously for 220 years because we intentionally limit the powers of those we entrust with public office.

             Two fraternal twin U.S. Supreme Court cases provide a basic checklist for identifying inappropriate exactions.

             In 1987, the Court decided Nollan v. California Coastal Commission. In Nollan, the California Coastal Commission required owners of beachfront property wishing to obtain a building permit to maintain a pathway on their property open to the public.  The question before the court was whether this requirement constituted a taking under the Fifth and Fourteenth Amendments.  The Court agreed that a legitimate interest may be served by maintaining a “continuous strip of publicly accessible beach along the coast.” However, Justice Scalia reasoned that if California wished to use its power of eminent domain to do so, it must provide just compensation to the Nollans and other beachfront property owners for the public use of their land.

             The “take away” lesson from Nollan is that there must be a rational nexus between the governmental exaction and the problem addressed.

             In 1994, the U.S. Supreme Court handed down a decision in Dolan v. City of Tigard.  According to Wikipedia, Dolan “was a landmark case regarding the practice of zoning and property rights, and served to establish limits on the ability of cities and other government agencies, to use zoning and land-use regulations to compel property owners to make unrelated public improvements.”

             In Dolan, the owner of a plumbing and electrical supply store went to the local Board of Adjustment for a variance to expand the business.  The BOA agreed, as long as the petitioners dedicated land they owned for a part of the greenway for a pedestrian and bicycle path.  Plaintiffs appealed.

             The U.S. Supreme Court overturned the state Land Use Board of Appeals and the Oregon appellate courts, holding that a government may not use discretionary rights to dispossess a citizen of constitutional protections, especially where there is a questionable relationship between the exaction and the benefit conferred. The Court established a two-prong test: First, there must be an “essential nexus” between the permit conditions and legitimate state interest, and second, the exactions required by the permit condition must be roughly proportional to the impact of the proposed development.

             The most common form of exaction in North Carolina is development traffic mitigation.  Traffic mitigation sometimes gets out of hand, especially when there is no objective determination of the impact or the improvements needed to abate them.

             Traffic studies by traffic engineers offer that measuring stick.  Traffic engineers use sophisticated software to calculate a project’s traffic at peak and other times of the day and to suggest appropriate mitigation measures.  These studies are analogous to a civil engineer’s calculations of the tons of concrete and steel needed to construct a bridge.

            In 2005, the General Assembly adopted legislation allowing local governments and developers to enter into “development agreements” for long-term, multi-phased projects.  The reasons for this legislation were several, but the primary one was the inability of governments and developers to coordinate a government’s capital improvement planning while developers were pushing for or seeking changes to long-term plans to accommodate large-scale development.

             Another reason we needed this legislation has been apparent for decades.  When a developer proposes a project that can change the function and aesthetics of a community forever, North Carolina local governments actually discourage communication.  If the process is legislative, most local governments give each side a finite time at the podium to present the project.  If it’s quasi-judicial, communications with decision-makers actually are prohibited outside of the hearing. This is not poor policy.  This is institutional insanity.

            Development agreements provide a vehicle for ironing out countless details that govern the marriage between a large-scale project and the government’s policies and plans.  They provide “time at the table.”

             After having participated in the negotiation of several development agreements, several shortcomings in the legislation have become apparent to me, including, but not limited to 1) it is not clear whether regional utility authorities have the statutory authority to enter into such an agreement; 2) we don’t yet know how to include elected officials in the discussions when the ultimate decision is quasi-judicial; 3) with a 25 acre net developable minimum, a ten or twenty acre tract within or adjacent to an urban core – although of critical importance – would not qualify; 4) it is entirely unclear whether planning board review is required; and 5) the statutes leave us scratching our heads as to the statute of limitations for challenging a development agreement.

             In today’s issue of Land Use Law Quarterly, the lead article is my call for several changes to the 2005 legislation.  If you would like a copy, please email me at tom.terrell@smithmoorelaw.com and I will forward one to you.

            This morning I attended the quarterly meeting of the Carolina Wireless Association in Charlotte.  Rob Dawson, Vice-President of TESSCO Technologies, gave a fast-paced presentation on the impact of wireless communication on the existing telecommunications infrastructure.  The following bullet points are from my notes taken during Mr. Dawson’s presentation:

  • The US population is 300 million and there are already 280 million wireless subscribers
  • In December 1995, wireless data did not exist.  In 2009, there are now 55 billion text messages per month.
  • In 2007 there were 110 billion texts sent in the US; one trillion texts sent in the US in 2008; and 2.5 trillion texts this year (2009)
  • Existing networks are not designed to handle this.
  • There were approximately 225,000 towers in 2008.  We are running out of easy places to put them.
  • Since 2005 more people were able to access the Internet by mobile wireless broadband than land line.
  • AT&T is spending billions to upgrade markets to deal with wireless demand from such things as IPhones and its applications and downloads, all of which push and pull data through the network.  Also included in this wireless explosion are GPS navigation devices and machine to machine connections that increase traffic across the network.
  • Much more capacity on the network is needed.
  • From 2005 to 2012, mobile traffic will have increased 1000 fold.
  • Two megatrends are driving growth:  (1) mobile data networks; and (2) the switch from home systems to handheld
  • 3G networks were meant to handle only so much traffic.
  • More “spectrum” equals more capacity.
  • By 2020 or sooner, mobile devices will be the primary connection to the Internet.

Commentary:  The first time I handled a zoning approval for a communications tower, the users were citizens who owned what were commonly referred to as car phones, mobile units that were mounted permanently to the dash or console.  Car phones were used only by professionals who needed them or by the wealthy.  The day when middle school teens and grandmothers at church socials would whip out their handheld cell phone had not arrived.  Each tower was especially controversial and few citizens understood that times were permanently and radically changing. 

Today, our world has become irretrievably wireless.  When I represent companies constructing communication towers I seldom have to explain why the network is needed.  Fifteen years ago it was the tower that was perceived as evil.  In 2009, unless you live directly under or adjacent to a planned tower, the only thing that is abhorrent to the public is a dead spot where calls are dropped.

From a legal perspective, most telecommunications ordinances were written in the middle to late nineties to address the coming wave of towers that citizens increasingly wanted in the abstract but not in their neighborhood.  Most of those ordinances are outdated, in that they pre-date many of today’s stealthing techniques, they don’t distinguish between carriers and tower builders, and they don’t accommodate the requirements of North Carolina’s relatively new telecommunications statutes.

            This week the N.C. Court of Appeals published Tonter Investments v. Pasquotank County, an appeal by a developer who purchased three tracts of land before the county adopted an ordinance requiring all newly subdivided land to have at least 25 feet of road frontage and be within 1,000 feet of a public water supply.

             The developer alleged that this was a local government’s attempt to bypass state laws allowing lots ten acres and larger to be created without being considered subdivisions.  

             The court noted that counties have broad powers to regulate land but agreed that they have limited powers to regulate subdivisions. As such, a county may not adopt a subdivision ordinance governing lots greater than ten acres in size.  The court reasoned that the ordinances did not prevent subdivisions larger than 10 acres and that lots exempt from subdivision control are nonetheless still under zoning control.  The court upheld the ordinance as a valid exercise of zoning powers.