Two days ago the Board of Supervisors in Virginia’s Orange County approved a Wal-Mart.  Whether the 55-acre tract was within or just near the Wilderness Battlefield where up to 30,000 Union and Confederate troops were killed or wounded, was a key issue placed before the board.  According to news reports, several historic preservationist groups had already hired legal counsel to overturn the likely approval, and their lawsuit challenging the decision was filed yesterday, the day after the decision. [Disclaimer: I have represented Wal-Mart on three occasions and sued it on another]

             You know that the lawsuit wasn’t hastily prepared when it begins with a quote by Pulitzer Prize-winning historian James McPherson: “The Battle of the Wilderness was a great turning point in the Civil War — the first clash between Robert E. Lee and Ulysses S. Grant and the beginning of the end for the beleaguered Confederacy.”

             According to Wikipedia, the “Wilderness” was a 70 square mile area of tangled woods where the Battle of the Wilderness was fought just a few miles from the Battle of Chancellorsville.  The Battle to Stop Wal-Mart actually began in 2008 when the Civil War Preservation Trust began a campaign to halt the development, aided by, among others, actor Robert Duvall, a descendant of Robert E. Lee. 

             Commentary: Changes in the neighborhood landscape always evoke emotional responses, often out of proportion to the change. If we could turn back the calendar’s pages and apply, instead, for zoning approval for an upscale lifestyle center or even a Target in the same location, I suspect the preservationists’ response would have been remarkably different.  Wal-Mart has for years been a lightening rod for neighborhood groups opposing not a land use but a business concept that Wal-Mart, being the best known, had come to personify.  When it comes to Wal-Mart and local governmental decisions, it’s unfortunately not a fair or level playing field.

            This week the Pennsylvania Commonwealth Court (Commonwealth v. East Brunswick Township) used the doctrine of preemption to overturn a local ordinance that attempted to regulate the application of sewage sludge.  Sewage sludge, typically in the form of residue from wastewater treatment plants,  is a form of pasture fertilizer that farmers love.  It is nitrogen rich and often provided for free. However, for reasons related to everything from heavy metals to odor to irrational fears, sewage sludge is regulated in its application.

             The doctrine of preemption is simply stated.  When a federal or state government adopts comprehensive regulations governing a particular activity, lower governments may not adopt their own regulations because they have been “preempted.”  The doctrine is not without a strong policy rationale.  In North Carolina, solid waste disposal is a statewide issue, and the General Assembly has adopted a comprehensive set or laws and regulations applicable statewide.  It is unmanageable both for statewide regulators as well as companies working regionally or statewide in the area of solid waste if every county and municipality had its own regulations.

             The Pennsylvania Commonwealth Court agrees, quoting an earlier Pennsylvania case, Liverpool Township v. Stephens, 900 A. 2d 1030 (Pa. Cmwlth. 2006):  “Ordinance 13 not only conflicts with the Solid Waste Management Act, it also interferes with the General Assembly’s goal of a uniform and comprehensive scheme of regulation of municipal sewage treatment that leaves no room for side-by side municipal regulation . . . Balkanized regulation of the disposal of municipal sewage sludge would stand as an obstacle to the SWMA’s comprehensive regulatory scheme.” (emphasis in the opinion).

             To my knowledge, North Carolina courts have not used the term “Balkanization” to describe a problem governed simultaneously by multiple regulatory schemes, but it’s an apt term.

            This month we are witnessing a phenomenon of intensity unparalleled in my lifetime – Congressional August recess “town hall meetings” where citizens are turning out in droves to shout their congressional representatives down, to call elected official unsavory names from microphones, and to compare our nation’s leaders to Hitler and Attila the Hun.

             Last week I spoke with one of my colleagues who, like me, attends public hearings on matters related to changes in the landscape and where opinions are expressed more through emotion than logic.  Both of us wondered if we were embarking upon a new and acceptable standard of public discourse, where civility is sacrificed on the altar of political expediency.  We both agreed that this current phenomenon was the result of mass communication in the digital age, where crowds can be whipped into action through fear tactics and threats, when Medicare- dependent Americans can be convinced that the government should not be involved in health care, leading to identical letters to the editor and identical slogans use on placards in Oregon as in Florida.  We also agreed that it was unique to this president and this issue.

             Time will tell whether we are wrong and whether we have embarked on a new age.  I hope for the sake of all of us that we haven’t.

            This past Thursday I commented that the Permit Extension Act of 2009 failed to include development agreements.  House Bill 1490 was hastily cobbled together to add development agreements to the list of local government approvals and to correct this oversight. 

             HB 1490 also excepts Union County from the Act, allowing it to reallocate water capacity to other projects if a permit lapses.

              Yesterday the General Assembly passed the “Permit Extension Act of 2009.” In essence, the Act suspends the termination of any development approval permit that was current and valid between January 1, 2008 and December 31, 2010.  “Development approval” is broadly defined, and includes wastewater permits, erosion control permits, subdivision plat approval, air quality permits and special and conditional use permits, among others.

             Commentary: The Permit Extension Act is an acknowledgement of what was termed in the Act’s first paragraph “a state of economic emergency in the State of North Carolina and the nation” and the special hardships suffered by the land development industry.  Instead of spending money that doesn’t exist in government coffers to revisit every lapsed permit, the General Assembly adopted a common sense measure that simply maintains the status quo until the economy is revived.

             From the private perspective, many of the approvals obtained from state and local agencies have sunset provisions tied to initiation of site activity.  Loss of approvals would heap additional losses upon a weakened industry that creates substantial jobs and increases the local tax bases.  From the governmental perspective, it would take inordinate and unnecessary staff time to re-discuss and re-approve lapsed permits. 

             The only thing missing from this Act is the inclusion of Development Agreements as a type of approval that is vested.  Someone was asleep at the wheel.

I write this from New Bern, North Carolina which is hosting the Solid Waste Association of North America (SWANA) Quad State Conference.

When I first attended a SWANA conference several years ago I learned that the industry’s focus and direction could be gleaned better from the vendors who attended to set up booths than from the conference agenda.  This year was no different.

Ten years ago the issues were effecient hauling, better equipment for landfill compaction, new technologies for landfill construction, and recycling.

This year the focus is on alternative solutions to waste disposal, waste-to-energy technology, carbon footprints and carbon credits, using capped landfills for solar or wind generated power, and more effecient ways to extract and use methane gas.

It’s a marriage of energy and waste.

All industries morph, but the industries that morph successfully are the ones that find a profitable way to solve society’s newest problems.  Solid waste handling and disposal in this country alone is a multi-multi-billion dollar endeavor.  There are seemingly countless new ideas and technologies chasing limited venture capital funds. Many of these new ideas and ventures will fail.  But some will succeed.

            Earlier today Judge Elmore filed Court of Appeals case Jennings v. Fayetteville, a wrongful death case arising out of a young man’s death during a heavy rainstorm when he was caught in a drainage ditch and drowned.  The City of Fayetteville appealed the trial court’s ruling that it did not have governmental immunity.

             Generally explained, governmental immunity exists for what are called “governmental activities” unless the municipality has waived immunity by purchasing liability insurance.  However, a municipality is liable for its actions in “proprietary activities.”  Governmental activities are those activities (e.g. police, fire) that are conducted almost exclusively by a governmental entity.  Proprietary activities are activities that could be conducted by private individuals or entities, such as a fair, waste disposal, etc.

             The court’s dilemma was that there have been North Carolina cases declaring both immunity and non-immunity for maintenance of storm drains.  The case turned on a previous ruling in a 1996 Court of Appeals case (Kizer v. Sanford) that had not been overturned by the N.C. Supreme Court. The court reasoned that because Kizer was the more recent case and that both Kizer and the current case were heard after the passage of the Clean Water Act, Kizer would stand.

             Commentary: The connection between the Clean Water Act, which was passed to manage water quality, and the maintenance of storm drains, which pertains to water quantity, is tenuous at best.

            Yesterday the General Assembly, after years of delay and hand-wringing, finally adopted Senate Bill 44, an act that codifies the laws on quasi-judicial proceedings.

             Quasi-judicial proceedings are the legal processes by which elected and appointed boards make findings of fact based upon evidence before them, and applies those facts to previously adopted standards or laws.

             Previously, quasi-judicial proceedings were governed entirely by an occasionally inconsistent body of case law, and legal challenges were not covered by the NC Rules of Civil Procedure. 

            This act clarifies mechanical issues, such as how a writ of certiorari is obtained, what must be included in the Record of Proceedings, and which party has which duties during litigation.  It also clarifies a party’s right to obtain evidence outside the record to prove or disprove standing and to prove or disprove bias by decision-makers, two key issues often raised on appeal but on which the hearing was not focused.

             The act also affirms the principles established in case law that certain standards must be proved by expert testimony, including a proposed use’s impact on the value of adjoining or nearby properties and the impact of traffic on public safety.

 Commentary:  In 2001 I organized a day-long seminar devoted exclusively to quasi-judicial proceedings.  In 24 years at the Bar it was the only CLE I’ve attended that was standing room only, with attendees literally sitting in the aisles and standing at the rear. The last presenter was Mike Brough, one of North Carolina’s pre-eminent land use attorneys.  Mike presented for the first time a draft of what ultimately became this law.  It took eight years to get here.  Mike also lobbied hard for its passage, and all of us who practice land use law in North Carolina are grateful.

Two days ago the General Assembly modified NCGS 153A-343 (counties) and 160A-384 (municipalities) to require that third party rezonings (rezoning applications made by someone other than the property owner) cannot proceed until the owner has received notice by certified mail.

 Commentary: This bill was filed by Senator Tony Rand, a friend and one of my favorite members of the General Assembly.  However, Senator Rand’s initial bill draft was a disaster because it applied to first party rezonings and required service by certified mail on everyone whose property adjoined the tract in question.

 I saw Tony at an event in Chapel Hill and asked him what was going on.  He explained that a friend and client was in the hospital when neighbors initiated a third party rezoning to downzone his land.  His client/friend did not receive notice until a day or so before the hearing. Tony thought, rightfully so, that this was something between unfair and outrageous.  His cure, however, was to require notification to all adjoining owners equal to the same type of service of process required for initiating a lawsuit for everyday, garden variety rezonings.  In a year when the economy is strong, there are thousands of these rezonings across the state.  This type of notification would be the cannon-to-kill-a-fly cure and would create chaos, slow development to a halt, and serve as fodder for numerous lawsuits.

 At some point, somebody finally explained to Senator Rand or his staff the

difference between first and third party rezonings, and the resulting legislation is palatable.