Yet another Court of Appeals case, Ecoplexus v. Currituck County, examined the denial of a solar farm and applied the same principles as in Dellinger v. Lincoln County and Innovative 55 v. Robeson County, but with some interesting twists.


Ecoplexus arises from Currituck County, a county that is now widely known as, well, I’ll just say it: anti-solar and anti-renewable energy.

In this hostile environment, Ecoplexus applied for a special use permit (SUP) to develop a solar farm on a former golf course. Three of the four SUP standards were the same as we always see (won’t harm health and safety; won’t harm adjoining property values; is harmonious with the area).  The fourth standard related to having adequate public facilities to serve the development.

Ecoplexus introduced engineer Tommy Cleveland, whose testimony has been cited by previous courts in finding that solar farms are just not material dangers to public health and safety. It also introduced Rich Kirkland whose matched pair analyses have been cited by at least three previous Court of Appeals panels as adequate to establish that a use will not harm the value of adjoining properties (and two of those opinions involved solar farms).  Additionally, a licensed engineer testified in detail about drainage and runoff.

Opponents hired Herb Eckerlin and Ron Heiniger, two former professors from NC State. Eckerlin expressed opinions about N.C. tax policies, energy prices in Germany and California and the economic value of solar photovoltaic facilities.  He also said it was his opinion that the types of panels listed in the application might not be the kind of panel ultimately used.

Ron Heiniger presented no tests or data but offered his opinion about problems with stormwater runoff carrying nutrients and herbicides.

A certified appraiser also testified for the opponents and claimed, essentially, that Mr. Kirkland’s market impact analysis (that studied numerous solar farms in numerous areas) was not good enough. But he offered no data of his own.  Other witnesses expressed what are called “generalized fears.”

Court’s Analysis

Once again, the Court (through the pen of Judge John Tyson) analyzed this case through the lens of the prima facie case and whether opponents’ testimony was competent and substantial.

The Court reviewed all of the studies presented by the applicant and found that they were, in fact, more than sufficient to establish a prima facie case.  It then discussed why the testimony presented by opponents was either speculative and generalized and therefore “incompetent” or, as in the case of their appraiser, not based on data or studies and therefore not substantial.

The Court also took issue with the county’s order, which only considered evidence presented by opponents and not by the applicant.

Accordingly, the matter was remanded for approval.

Other Commentary That You Won’t Read Anywhere Else

First, and of greatest interest to me, is that landowner Currituck Sunshine Farms, LLC – one of the petitioners – is owned by economist James Owens, former CEO of Caterpillar, Inc., the world’s largest manufacturer of construction and mining equipment, diesel and natural gas engines and industrial gas turbines. He is also the brother of David Owens, the guru of land use law in North Carolina and professor at the UNC School of Government.

Second, the Ecoplexus opinion elevates even further the importance of determining whether an applicant met its prima facie case (“The Board’s decision must include and be based upon all of the Petitioners’ evidence, or lack thereof, to show a prima facie case.  The denial cannot be based on evidence solely presented by the opponents to the solar farm.”)

And third, Professors Eckerlin and Heiniger, I have discovered, are philosophically opposed to solar farms, and we’ll be seeing them around the state on a more regular basis. However, they won’t be doing so saying they represent N.C. State, thanks to a letter from the university informing them that they cannot say that they speak for or represent the university on these matters.

Both of them testified against a solar farm in a Nash County case last October (that I’m now handling in litigation) and against a solar facility in Iredell County where I cross-examined them the second night of testimony last December 21, two days after the Ecoplexus case was published. (I went to the Iredell hearing with copies of the Nash County Order, which specifically found that their testimony was based upon both speculation and conjecture, and copies of the Ecoplexus opinion).

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The Court of Appeals recently reviewed three issues in a Randolph County rezoning: was the decision “spot zoning”? Was it arbitrary and capricious? And was it adopted with appropriate procedures?  On spot zoning the law was slightly expanded. On the other two issues the court reminds us of the distinction between judicial and legislative functions.

If the case McDowell v. Randolph sounds familiar it’s probably because you’ve seen the caption before.  This was the parties’ third trip to the Court of Appeals, each under different facts and slightly different causes of action, but all involving the McDowells (as plaintiffs) versus the McDowell Lumber Company next door.

Rightful Disclosure: My colleague Kip Nelson and I represented Randolph County. For this reason I won’t editorialize as I typically do, but I can give you additional facts from the record that weren’t in the opinion.

The Facts

McDowell Lumber Company was initially rezoned to heavy industry in 2005 when the county’s comprehensive plan map showed only half the site to be slated for industrial use while the other half was designated for Rural Growth. In 2007 the Court of Appeals found the site to have been spot zoned, primarily because of the inconsistency between the comp plan map and the rezoning.

The county amended its growth plan in 2009 to create Rural Industrial Overlay districts to allow, among other things, sawmills and lumberyards to be located near their sources of materials (forests). And in 2010, McDowell Lumber was rezoned to Rural Industrial Overlay, but as a conditional district.  The only condition of the 2010 rezoning was the added approval of an extremely site specific development plan that showed where every building and structure was required to be located.

Six years later (2016) McDowell Lumber returned for another rezoning, but only to change one small aspect of the site plan – the placement of a chemical dipping vat about 200 feet from its original placement ON THIS 137 ACRE SITE (caps were intentional). The underlying zoning district remained the same.  And the purpose for the site plan change was to create a location where the vat could be covered, thereby reducing dust, noise, emissions, reduce the amount of internal trips, and lower the probability of runoff or spills onto adjoining properties.

The Board of Commissioners voted to approve the rezoning and adopted a short statement explaining why the rezoning was consistent with the Growth Plan and reasonable and in the public interest.

But it was Not Spot Zoning

Spot zoning is an archaic concept that harkens back to the days when land use planning was in its infancy, zoning was still new, and courts needed ways to identify whether the local government had exceeded the bounds of rational thought.  Today it exists primarily as a litigation tool for NIMBYs in search of one more bullet for their stop-this-development gun.

To be considered spot zoning the site first must be considered a “spot,” which typically means a relatively small tract surrounded by a sea of uniformly zoned or developed property. And even if it is a spot, it’s not illegal spot zoning if there is a rational basis.  But as to the size itself, 137 acres is 130 times the size of a logical “spot” and almost 3 times the size of the largest spot ever recognized by our courts.

We showed the Court – and the Court fully  agreed – that every spot zoning case in the history of spot zoning cases defines spot zoning as the reclassification of land through the zoning process, and that nothing here was reclassified. The underlying zoning stayed the same.  The only change was minor, and it related only to a zoning condition.

So . . . now we have a case that establishes that a mere change in a zoning condition does not give rise to spot zoning.

Consistency/Reasonableness Statement

I think I once knew why our legislature enacted the requirement that local governments adopt consistency statements and statements of reasonableness and public interest, but over the past years I’ve watched planning boards and elected bodies stumble horribly over this requirement, try desperately to rationalize their otherwise rational decision, and get sued in one more of those “gotcha” causes of action.

But here, Judge Tyson reminds us that the Court’s role is limited to two things: making sure a statement was enacted and that it has something of substance in it.  Courts will not interfere even if the substance makes no sense whatsoever (although in this case the statement was pretty well written).

And the Decision was Not Arbitrary or Capricious

Claiming this decision was arbitrary and capricious was a Hail Mary football throw in search of a ball and a receiver. A rationale was clearly present in the record to support this very minor site plan change, plus the Board articulated well how it furthered the goals in the Growth Plan.

The Court reminds us that it must look at the whole record and if there is any plausible basis it must affirm the decision.  Why? Because the review is “deferential.”  Courts do what courts do, and legislatures do what legislatures do, and courts don’t second guess the wisdom of the legislative body.  Well, as a rule anyway.

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Tonight the State Senate voted 45-0 to approve Senate Bill 419, and I’m doing a rather undignified happy dance.  Approval does not mean passage.  The bill still must pass the House, but approval by the Senate means it is alive for the short session in 2018.

SB 419 is North Carolina’s first comprehensive zoning and land use reform since the early 1920s.  It began in the Zoning and Land Use Section of the NC Bar Association and has been a multi-year, collaborative project.  Unlike most legislation, it was drafted, vetted, and reviewed through an open process involving members of industry and government.

SB 419 was not a vehicle for making substantive policy changes to land use and zoning law or for increasing or diminishing powers of government. Changes represent clearer language, consensus updates, or codification of settled law.  Changes without clear consensus were deleted and were reserved for other, separate bills.

Various drafts were posted on websites and sent to several constituencies for input, comment, and suggestions.

Summary of key points:

  • Consolidates city and county zoning and development regulation statutes into a clearer framework that makes regulations easier to follow, simpler to find, and consistent with modern business and government needs. Intentional differences (e.g. bona fide farms) are kept.
  • Replaces separate city and county statutes with a single, simpler, consistent statute applicable to all local governments.
  • Definitions listed in one place; board powers now found in one place; simplifies confusing and outdated terms.
  • Establishes uniform, consistent procedures for adopting ordinances, processing applications, and administration of building permits.
  • Makes no substantial changes in the scope or nature of local government authority to regulate development or to exact land, construction, or money as a condition of development approval.
  • Reduces confusion for local elected officials, staff, land owners, developers, neighbors, and the public based on widespread input.

Why was Modernizing These Statutes Important?

Over the century since the initial adoption of zoning statutes, the statutory framework has become unwieldy, confusing, and hard to use for lawyers, zoning officials, developers, and the public. They’ve been anything but user friendly.

How We Got To Where we Are

The Zoning and Land Use Law Section has, over the past decade, developed several proposals to clarify and simplify North Carolina zoning laws. These initiatives have been non-partisan and had the support of the public and private sectors affected by these statutes. The first such effort was G.S. 160A-393, the codification of appeals from quasi-judicial boards (2009), and the second initiative was the modernization and update in 2013 of the statute on boards of adjustment, G.S. 160A-388.

With the board of adjustment update, we did two things right. We footnoted every change to explain the thinking of the drafting committee, and we sent drafts to every possible stakeholder asking for input. The democratized process created both trust and better legislation.

The present effort began in 2013 in side discussions during the rewrite of the board of adjustment statute. Drafting began in earnest in 2014, and the first legislative effort passed the House in 2015 but didn’t reach the Senate.  After the 2016 session, the Zoning and Land Use Law Section took the final version of the 2015 bill and continued to work with affected parties to identify and resolve remaining technical and policy areas of concern.  After an additional six months of consultation, discussion, and revisions, an updated consensus version of the Chapter 160D proposal was completed in early 2017.

A Tremendous Group Effort

If there is a star in the cast of characters it is David Owens at the UNC School of Government.  This task was nothing short of gargantuan, and there is only one person in this state capable of doing the primary drafting, and that is David Owens.  David is also trusted by every planner, city and county attorney, and private attorney in the state, and he was the only person who had memorized every sentence in the 117 page bill.  He also authored the over 600 footnotes.

LeAnn Nease Brown offered great insight and diplomacy, and Robin Currin, one of the best land use attorneys in the state (now attorney for the City of Asheville) worked both sides of the spectrum, communicating with developers and city attorneys who were either distrusting or wanting to convert the bill to a reform vehicle for their interests.  Michelle Frazier, lobbyist for the NC Bar Association, demonstrated why she is recognized as one of the best in the business, helping us to stay on top of the labyrinthine legislative process.

But the true heroes are the senate sponsors, Floyd McKissick of Durham and Michael Lee of Wilmington.  Senator McKissick knows zoning laws inside and out from service on the Durham City Council, and his support was key.  Among the Democrats, he is highly trusted and respected.

Michael Lee, however, is the one person whose support made this bill viable and who enabled its approval by the senate.  Michael is a former law partner, and I know him well.  Smart as the dickens, competent at everything he does, and one of the most efficient time managers I’ve ever met.  Michael read and reread this bill, asking many questions.  He met with us, helped with different stakeholder groups, and made sure senate leadership was aware that this was a nonpartisan effort to improve the laws for all people of this state. The respect he has earned in the Senate was clear.

And I’m Back

When I began work on this bill over three years ago, something in my schedule had to give way, and it was this blog. Now I’m back, and I hope to continue providing you with keen insights into the ever changing legal landscapes of zoning, land use, and environmental laws.

Read future posts for legal updates, practical insights, and opinions without apologies.

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A recent N.C. Court of Appeals decision asked all the right questions about a zoning administrator’s authority to make discretionary decisions related to standing. And with one exception, found in the dissent, the Court gave all the right answers.

In Morningstar Marinas, et. al. v. Warren County and Ken Krulik, Warren County Planning and Zoning Administrator in His Official Capacity, you will encounter about 6 pages of facts that boil down to this: Morningstar Marinas asked Mr. Krulik, the zoning administrator, for an official interpretation of a zoning matter.

Making official interpretations of zoning ordinances or zoning matters is one of the necessary things that, by statute, zoning administrators do.

Mr. Krulik issued his decision, and Morningstar filed the necessary paperwork to appeal his decision to the Board of Adjustment. Hearing appeals of zoning administrators’ decisions is one of the necessary things that, by statute, BOAs do.

But instead of sending the appeal to the Board, Mr. Krulik decided that the BOA did not have authority to hear this appeal because, as Mr. Krulik further decided, Morningstar did not have standing to appeal his decision. Even Mr. Krulik’s decision that Morningstar had no standing could not be appealed to the Board because, by Mr. Kruliks’s personal determination, Morningstar had no standing.

Morningstar then filed an action for a Writ of Mandamus with the superior court, and the judge properly issued the writ, ordering Mr. Krulik to send the appeal to the Board of Adjustment. If Morningstar had no standing, then the BOA would make appropriate findings which would be appealable to superior court.

Writs of mandamus hardly ever pop up in zoning cases, but the discussion of the writ merged nicely into the Court’s discussion of the zoning administrator’s statutory authority.

A Writ of Mandamus is a judicial order to a lower tribunal or governmental employee to perform a certain task. A writ is appropriate when the task is ministerial, not discretionary; the person petitioning for the writ has a right to have the task performed; and the person (Mr. Krulick) has an obligation to do it.

The Court of Appeals correctly explained that the question whether a litigant is an aggrieved party with standing to appear before a BOA is a question of law, and zoning administrators are not empowered by any statute to make these decisions. Boards of Adjustment, on the other hand, are. It is merely the zoning administrator’s job to forward the case to the BOA, and if the party’s standing is at issue, then the BOA decides.

Judge Davis then wrote this sentence, which I placed three stars beside on my hard copy of the case: “We are unable to conclude that a zoning officer is vested with the authority to make such legal determinations regarding standing, particularly where the result, as here, would be to insulate the very same officer’s decision from review.”

Sidebar: In almost any context you can imagine, the judge whose decision you appeal is not the same judge who grants you permission to appeal his or her decision. The concept is so basic it is almost axiomatic. End side bar.

In this blog I have previously lauded Judge Robert N. Hunter’s view that, in our system of government, power is never assumed and is closely scrutinized, and a person (or city or county or agency), has the power granted by statute and no more (my summation, not his). Judge Davis’s analysis could not have been more logically developed, and he arrived at a decision that I’m sure Judge Hunter would have concurred with had he been on the same panel.

However, where the Court got the case wrong was in the dissent, which made both a legal and a factual error.

First, Judge Elmore used a pre-Mangum case to discuss who has standing. As a short history, an old case (Jackson v. Guilford County) was expansively read by future courts for the proposition that one must show a decline in property value in order to have standing in a zoning case. Mangum v. Bd. Of Adjustment got us back on track and said that there are other factors a court can and should consider when determining standing.

Second, Judge Elmore (who, in his defense, was not a zoning attorney before moving to the bench) correctly states that a party must allege how they have standing on appeal. His factual error was to assume that this showing is made when appealing from a zoning administrator to a BOA rather than a BOA to superior court.

In 29 years I have litigated or handled zoning cases in over 150 cities and counties, and I have never seen a planning department appeal form which provides a place for an appellant to explain why or how they have standing to get before the BOA. Typically, you give your name and address and the decision you are appealing and why you think the decision was wrong That’s it. And even when you reach the BOA your standing is not an issue boards typically discuss or weave into their decision. Standing can be made the issue, and in that circumstance the board could address it. Standing only necessarily becomes an issue when you decide to appeal to the superior court, now governed by N.C. Gen. Stat. § 160A-393.

Judge Elmore’s dissent gave Warren County the automatic right to appeal to the N.C. Supreme Court, and it did appeal. If the Supreme Court follows his lead it will (1) partially unravel Mangum; (2) make standing an issue in the zoning appeal process at a point where it is not now an issue; (3) force Boards of Adjustment to deal with standing issues when they need not be addressed; and (4) grant powers to zoning administrators to become gatekeepers as to who gets to challenge their decisions.

And that is dangerous.

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The zoning protest petition is the greatest unchecked power ever placed in the hands of an unelected citizen in North Carolina.  It’s past time we repealed the statute.

North Carolina’s protest petition statute (N.C. Gen. Stat. § 160A-385) grants an anomalous and unjustifiable power to a citizen who owns a mere 5% of a 100 foot buffer surrounding land considered for rezoning.  Upon the filing of a short petition of protest, a single citizen, elected by and answerable to no one, alters the decision-making authority of a duly constituted and elected government. It’s a decision exempt from judicial review.

In short, the petition prevents the city from approving the rezoning except upon a 75% vote, a threshold higher than the 2/3 vote necessary to amend the U.S. Constitution.

In the American system of government, individual citizens are granted rights and freedoms, but not powers.  Rights and freedoms are actions which cannot be prohibited or controlled by a government.  In most instances, they are either (1) limitations on a government’s ability to control what we say and do or to interfere with our lives, or (2) protections of our ability to participate in democratic processes.

Powers, on the other hand, are granted only to individuals who are elected or appointed to office through controlled processes and who swear an oath to uphold the law and use their powers to serve others.  Those powers can be legislative or executive, and they are always subject to judicial review.

Such powers include the ability to pass laws, enforce laws and interpret laws.

Protest petitions run afoul of the American system of government because they aren’t rights or freedoms.  Rather, the protest petition statute grants, to an unelected citizen, the power to manipulate the decision-making authority of a duly-elected legislative body for the citizen’s personal benefit.

The citizen’s reason for protesting is not subject to judicial review, even if his or her reasons were admittedly for racist, sexist or other reasons that would be unconstitutional if proclaimed by someone in office. And the protesting property owner could live in Texas, Oregon or China and be unaffected by the intended use.

Under modern zoning statutes, adjoining neighbors have a right to be notified of the proposed change, to attend all public meetings, to have access to every document filed, to write or call council members, to hire experts and legal counsel, and to speak at public hearings.

But no unelected person – even someone whose property adjoins the rezoning site – should be granted the unbridled power to control the vote threshold required for the elected body to act.

It’s worth repeating.  Such a power in the hands of an unelected citizen is without precedent, it is contrary to our system of checks and balances on governmental power, it has no justification, and it is wrong.

N.C. Gen. Stat. § 160A-385 should be repealed.

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When a law partner poked his head into my office to give me the breaking news about Patrick Cannon, Charlotte’s newly-indicted mayor, my head told me that I should feel some degree of outrage, but my heart only felt sadness.

Like all of us, I watched the news unfold to learn what seemed to be an inescapable fact, that another elected official – this time one of our own – had learned to monetize and commoditize the powers that were entrusted to him by the good people of his community.

Patrick Cannon probably broke several criminal laws, but his sin was that he violated a contract – a contract that was negotiated by our forebears who believed in the virtues of self-governance and held high hopes for the future of a nation ruled by law.  It is a contract that arose from a notion that any person, regardless of station or birth, could be chosen by citizens to enact and carry out laws for the benefit of all.

And it is a contract that was perfected to include citizens of any gender, any sexual orientation, any religious background, and yes, any race.

The terms of the contract are as simple as they are grand. We the people grant powers to ordinary citizens to make or execute laws, and in return, they agree to use that power for the benefit of us, the governed.

Our senators, congressmen, city council members, judges, and mayors hold that power in trust as fiduciaries of the common good.

I feel sad for Charlotte, and even sad for (now former) Mayor Cannon. But mostly I feel sad for the thousands of men and women elected or appointed to public office who uphold the contract day by humble day, always giving, often sacrificing, and never expecting anything in return.

We may have allowed political corruption to become an occasional and salacious spectator sport, but we’ve never allowed it to become our culture.

Over 29 years I have represented citizens, developers, property owners, cities, counties, and governmental agencies in somewhere between 150 and 200 different communities throughout our state. I have never had a citizen or developer ask whether there might be a way to purchase favorable treatment, nor have I ever experienced a planner, board member or elected official hint that a payment or
anything else of value would result in a certain outcome.

I am confident that if any of my many colleagues who practice land use, zoning, and environmental law had received such a hint, I would have heard about it.

Patrick Cannon became a headline because he is the exception, a point that gets lost in the many articles and editorials we’ve read.

Nonetheless, each Patrick Cannon adds one more log to the smoldering fire of suspicion in our nation’s mind that most of our elected officials are on the take.  And that is sad.

There is a high probability that in tomorrow morning’s newspaper we will read about somebody killed in a tragic auto accident.  What we won’t read is an article describing the tens of thousands of drivers who made it safely to work or to school or to their child’s piano lesson and home again safely.

The only thing that has raised my ire in the aftermath of this sad event has been listening to citizens and pundits take partisan political glee in watching an opposing party member take a fall for corrupt behavior. Shame on all of us who reacted this way.  And shame on others who gloat when public corruption arises, as it equally does, from Republican ranks.

The public office that is defiled belongs to all of us, not to any party or party faction.

It’s easy to repeat the worn adage that power corrupts. What we should remember is that power and self-governance also ennoble us, in large ways and small, as we go about the daily and sometimes tedious business of running our democratic institutions for the people.

Unfortunately, those are the acts and decisions that don’t create headlines.

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A recent N.C. Court of Appeals decision expanded upon and clarified when a prior quasi-judicial decision is binding on future boards.

Disclosure: It was my privilege to have served as co-counsel at the board level and as lead litigation counsel for the petitioners in this case. While I don’t believe the commentary below exhibits bias, disclosure of my representation is proper.

In Mt. Ulla Historical Preservation Society, et. al. v. Rowan County, the Society, Miller Air Park and about two dozen citizens appealed a 2011 decision by the Rowan County Board of Commissioners, who found that a 1200 foot broadcast tower met the standards for a conditional use permit. Specifically, petitioners challenged the board’s finding that the use would not materially endanger the public safety of planes from nearby Miller Air Park.

A key problem with the 2011 decision was that it was contrary to a 2005 Rowan County decision concerning the same company’s application for the same tower in the same location.  In 2005, the county found – based on evidence presented – that a 1350 foot tower would endanger local air traffic.  The ONLY difference between the 2005 and 2011 tower applications is that the tower proposed in 2011 had been lowered by 150 feet (from 1350 to 1200).

The implication of this 150 foot difference was critical to the understanding of how quasi-judicial decisions become binding on future zoning boards under N.C. law.  For those of us who live in the world of quasi-judicial decisions, this is a big issue.

The broadcast company and the county argued that the 150 foot decrease in height was equal to the height of a 15 story building and therefore the second application was “materially different” and eligible to be reconsidered by the county.  Their reasoning was essentially that “15 stories” sounded big and significant, so therefore it must be materially different than the application previously denied.

Miller Air Park pilots and other opponents countered that, at 1200 feet, the tower – two miles away but still smack dab in the middle of their extended runway – was still more than 550 feet taller than the evidence in 2005 suggested it could be and still be safe for local air traffic. The new application was therefore ineligible for reconsideration because the new application was NOT materially different.

So why the emphasis on whether the change in height was “materially different?”

A board of adjustment, or any governmental body acting in a quasi-judicial capacity, makes decisions based on evidence.  Our courts have long held that when there is a final judgment on the merits, a second lawsuit involving the same parties and the same claim cannot be re-litigated.  There are no do-overs.  Courts speak but once.

This legal principle is called “res judicata.” Roughly translated, “the matter has been adjudicated.”

Courts have also long held that res judicata applies to quasi-judicial proceedings. The problem, however, is that the two controlling cases in North Carolina were heard by our Supreme Court in 1928 and 1936, and neither case provided guidance on when a subsequent case can be considered sufficiently different that the next zoning board can re-hear and reconsider it.

When a reviewing court can’t determine an issue because there is no relevant statute and no controlling opinion from a previous North Carolina court, it looks to see if other states have addressed the question and, if so, whether there is a prevailing view.

And that is exactly what Judge Calabria, the author of this opinion, did in this case.  She (and judges Bryant and Hunter) adopted the prevailing view from other states that the second application must have addressed “the circumstance or condition that induced the prior denial.”

Stated in different words, the change must “vitiate or materially affect the reasons which produced and supported” the original denial.

During oral argument one of the judges asked me whether any significant change in the second application was sufficient.  I answered with this analogy. If a proposed chemical plant was denied a special use permit because there was evidence of danger to neighbors’ wells, the company could not return with a building of a different height, additional landscaping and redesigned road access and claim it was a new application.

However, the company could return for reconsideration if it could show that, in the meantime, all neighbors were hooked up to municipal water lines and no longer used their wells. Why?  Because this change in a critical fact would address the reason for the first denial.

Similarly, if Miller Air Park were to close, the broadcasting company would be free to return for a re-do.

The Court also noted that whether the second application is materially different is a factual determination made by the reviewing board, and it is subject to the “whole record review” standard where the Court defers to the findings of the board.

This Court got it right, and from now on in North Carolina, the Mt. Ulla case will be cited as the controlling opinion on when a change in a proposal is sufficiently different and an application previously denied may return for a second consideration.

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Quasi-judicial proceedings are quite common in land use decisions.  They are proceedings where the local board loosely follows the rules of the courtroom in order to determine if the applicant has presented sufficient evidence on which the board can make the necessary findings to issue a variance or a special use permit or to overturn a decision made by a planning staff member.

However, until a mere four years ago there were no codified rules for appealing these decisions into superior court.  None.  We basically knew that we had to file a petition for a writ of certiorari, a request that the court order the government to send its record up for judicial review.   But how you filed the petition and who were the parties and who issued the writ, and whether it could be issued ex parte and whether there were times you could go outside the record were undetermined and unknown.  It was difficult to argue that somebody did an appeal the wrong way.

Then, in 2009 (thanks mainly to the efforts of my friend and the first dean of N.C.’s land use bar, Mike Brough) the General Assembly enacted G.S. 160A-393.  “393” as it is colloquially called, spells out the rules for appealing QJPs from the local board to superior court.

But now that we have clear rules . . .  it’s advisable to follow them.

A recent unpublished opinion from the N.C. Court of Appeals (Philadelphus Presbyterian Foundation, et. al. v. Robeson County), makes it clear that the penalty for not following the rules can be dismissal of your case. In Philadelphus, several citizens protested the issuance of a conditional use permit to Buie Lakes Plantation, LLC, for the construction of a sand mining and processing facility.

Petitioners named the Board of Adjustment, the Board of Commissioners and Robeson County as respondents, even though neither of the boards were proper parties.  However, they failed to name the applicant, which was a necessary party.

Pursuant to G.S. 160A-393(e), “if the petitioner is not the applicant . . . the petitioner shall name the applicant as a respondent.”  When the matter came on for hearing, the county moved for dismissal because the petitioners failed to name a necessary party as required by the rules.  The judge agreed and dismissed their case.

Rules (and statutes) matter.

One particular thing about this case caught my eye, a second thing reminds us why the quality of judges matters, and a third thing excited me because it was a rare judicial acknowledgement of the hybrid nature of these types of proceedings.

First, what caught my eye was that the Court quoted as one authority the case Ball v. Randolph County, a case I was grateful to win for my client, Mr. Ball, in 1998.  The case was my first opportunity for oral argument before the N.C. Supreme Court.  While it’s not the first time the case has been cited by an appellate court, it’s nice now and then to feel as though you’ve made a contribution to the jurisprudence of the state.  (I’m also grateful that sixteen years later, Randolph County is my client, not my opposing party)

Second, if you read lots of appellate opinions you learn to appreciate the quality of judges and the differences in their styles.  This opinion was written by Judge Jim Ervin from Morganton, son of a former 4th Circuit Judge and grandson of a former U.S. Senator and N.C. Supreme Court Justice.  Judge Ervin’s opinions often resemble mathematical equations.  He provides all the legal and factual building blocks needed in simple and direct statements, and then explains how the only position logically reachable is the one he reaches.  Lawyers trying to decipher how he reached his position never have to guess.

Sidebar: The Court of Appeals judge who is arguably the judge most appreciated by the land use bar is Judge Robert N. Hunter (from Greensboro). Judge Hunter has shown time and again that he is sensitive to the use and abuse of power in the hands of local governments who would use delineated powers expansively rather than within appropriate limits and with caution.  Judges Ervin and Hunter are running for the same seat on the N.C. Supreme Court. It is too bad both of them cannot win.  End side bar.

Third, I was excited to read this sentence: “Although the filing of a certiorari petition certainly bears some resemblance to the institution of a civil action . . . the analogy between an appeal and a request for certiorari review . . .  is clearly the correct one.”

The context of the above sentence was a discussion of the reviewing court’s jurisdiction to hear an appeal when the notice of appeal was not timely filed.  But the importance of that sentence is this: lawyers handling these types of cases (I seldom have fewer than five going at any point in time) often are without a clear road map for handling nuanced procedural matters that were not anticipated and therefore not covered by “393.”  Until “393” is expanded, we need to know whether we look to the Rules of Civil Procedure (used in the trial courts) or the Rules of Appellate Procedure (used on appeal from trial courts) as our guide for how to proceed in those situations not anticipated by the statute.

I have argued in the past that QJPs are NOT governed by the Rules of Civil Procedure.  Rather, these proceedings are governed exclusively by “393,” and the Rules of Civil Procedure are used only in those situations clearly specified in the statute.

Whether I am right or wrong is a question to be answered one day by a statutory revision or a case that wends its way though the appellate process.

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Several years ago a Guilford County Commissioner told me, chuckling, that he had just heard Jim Melvin, Greensboro’s former mayor, defend some of his ideas for Greensboro’s downtown improvements by saying this: “I don’t want to die in a mediocre city.”

The sentiment resonates.

Last week WordPress sent me my blog statistics for 2013.  Among other data (e.g. this blog was read by folks in 67 countries, thanks mainly, I’m sure, to Google and key search terms), I learned that my post with the most hits was “Fixing a Screwed Up City,” an essay on the travails of my hometown, High Point, and the city’s decision to hire Andres Duany, called the “father of new urbanism,” to develop a master plan to fix High Point’s woes.

As I stated in that post,

“High Point’s population doubles during each of the fall and spring International Home Furnishings Markets.  As a wholesale trade show event, none of the furniture showrooms, which occupy a vast majority of the downtown space, is open to the public either during or between markets.

 In other words, we have a downtown that is permanently closed to the citizens of the city.

 On top of that we have little to no downtown public space, one way streets designed to move cars as quickly as possible from points A to B without an ability (or interest) to stop at points in between, a Main Street with an average actual speed between 45 and 51 mph depending upon time of day, and our hottest entertainment area is an outparcel-heavy district on Highway 68, three miles from downtown.

  “Screwed up,” perhaps, is a polite understatement.

One year earlier, my most read post was titled “Death of a Hero,” a tribute to Max Heller, the former business leader and mayor who led the sleepy textile city of Greenville, South Carolina into a period of renaissance that no southern city has yet to fully emulate.

The differences between High Point and Greenville are many, but the main difference is this: Greenville has been led by risk-takers with a vision.  High Point seems to be occupied by a critical mass of citizen-naysayers who fight any vision other than “what is.”  When your downtown is permanently closed to the citizens of your city, an alarm bell should go off that something is wrong and must change.

Allow me to be repetitive.  Other cities take steps to give people reasons to visit their downtown.  In High Point the issue is not just finding a reason. The real problem is finding a business that hasn’t intentionally locked us out.  Except for one hotel and one isolated restaurant, I cannot think of a single building on Main Street in our downtown that, come Monday morning, I would be allowed to enter.  I’m an outcast in my own city, and unless you own one of the downtown furniture showrooms, you are too.

In stunning contrast, when I visit my law firm’s Greenville office later this month I will join a parade of people on its Main Street trying to decide which of the many restaurants and stores to walk into for lunch or coffee.

As the Duany plan I earlier wrote about has materialized, it has rightfully been subjected to questions and criticisms.  That’s not the problem.

The problem is that for decades High Pointers have complained that we have no downtown similar to other cities.  No entertainment and restaurant district inside the city other than (1) strip areas farther north on our Main Street cluttered with signs on poles and over-head wires and (2) areas that are technically inside the city but which are closer to Greensboro than the city’s core.  Now that we’ve hired a world-renowned urban planner to give us ideas, the carping and whining seems to have gotten louder, only now the object of scorn is the plan for improvement.

The Sunday before Christmas, the retired editor of the High Point Enterprise wrote a long column that supported nothing about the Duany plan, did not acknowledge the in-your-face problem with how this city has developed, and offered no alternative vision.  Rather, he presented a series of petty, nit-picking, disgruntled comments. His column referenced the Duany plan complaints he heard at various Christmas gatherings, and it followed months of letters to the editor decrying the Duany group ideas and the costs of implementation.

This was not an isolated occurrence.

When Nido Qubein became president of High Point University in 2005, the city fought his efforts to transform a sleepy regional college into a major employer and driver of cultural life in the city.  Rezoning neighboring rent houses for gorgeous new campus buildings and the erection of a billboard on campus were hard fought battles.  When growth came fast, the university was actually asked to declare the outer boundaries of its expansion and to promise never to go beyond them.

The public’s opinion about HPU has changed.  But my point is that, as a city, our natural bent was to fight this vision and change until the results were too compelling to deny.

Great cities – like great institutions and great people – don’t become great by accident.  Greatness requires vision, hard work, risks, and the ability to acknowledge and learn from failure and move on.

Greenville has taken many chances, and in the process it has nurtured a culture of “yes, we can do this.”  High Point has business leaders and council members capable of leading in this type of environment. But too often it seems they swim against the tide of a local culture sadly epitomized by our former editor who thinks that throwing rocks and complaining is, in some twisted way, a contribution to the city’s success.

HPU’s president, Nido Qubein, spoke at a Chamber of Commerce event a few years ago and said (in paraphrase) something like this: A community is like a business.  Sometimes it has to change its culture in order to move forward, but a city can’t change its culture until it changes its attitude.

For High Point to do what Greenville and Wilmington and Salisbury and Charlotte and Greensboro and Winston-Salem and Asheville and even Fayetteville have done, it needs a new culture and a new attitude.

I don’t want to die in a mediocre city, either.

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Just before Christmas the N.C. Court of Appeals issued an opinion that illustrates the necessity of presenting facts to support your case when the board is considering a special or conditional use permit.  Opinions, speculations, conjectures and surmises, the Court properly reminds us, are not evidence.

In Blair Investments, LLC v. Roanoke Rapids, the city council denied a petition from U.S. Cellular to place a cell tower on the petitioner’s property based on findings that the tower would endanger public health and safety and not be in harmony with the area.

The record of proceedings contained the following evidentiary basis for these findings: (1) the leased lot has, in the past, been unkempt, smelled bad, is filled with garbage, and supports a run-down building; (2) one neighbor merely inquired about the “possible negative health and environmental side effects;” (3) another neighbor did not believe there was a need for a cell tower at this location; and (4) yet another neighbor stated that while she is not opposed to cell towers, she didn’t want to be able to see them.

Judge Steelman’s opinion is a concise treatise on the structure of quasi-judicial proceedings and the requirement that findings supporting or denying a special use permit must be based on competent, material, and substantial evidence appearing in the record.

On appeal, the trial court upheld the town’s denial despite the fact that there was nothing in the record to support the council’s findings.  The Court of Appeals reversed.

This opinion reminds me of a case from 2011 (Premier Plastic Surgery v. Town of Matthews) in which Judge Robert N. Hunter  showed limited patience with a Board of Adjustment that wanted to reach a certain result but didn’t have evidence to support it.  The Board’s findings, Judge Hunter correctly observed,  were “presented with no reasoning,” “merely conclusory,” “mere conjecture,” and based in “opinion.” [Disclosure: The COA remanded that case to the Board, which ignored Judge Hunter’s opinion in its second decision and order.  I represented the the petitioners in the appeal of the second decision, which has now been remanded to the Board for a third chance to get it right.  Among the superior court judge’s findings is that the Board ignored Judge Hunter’s opinion.]

Other Issues

My first question was “where were the lawyers?” and I start with U.S. Cellular.  Granted, there could have been much more legal involvement at the board level than meets the eye, but the opinion doesn’t suggest it.

It doesn’t appear from the opinion that an attorney at the board level or Court of Appeals level reminded the board or informed the court that three of the opposing neighbors’ opinions were legally irrelevant.  The Telecommunications Act of 1996 and N.C.’s Wireless Telecommunications Facilities Act of 2007 prohibit local governments from (1) basing health and safety decisions on the effect of radio frequency emissions and (2) from considering whether a tower is needed based on demand (N.C. G.S. 160A-400.52).

Second, it is the role of the town attorney to make sure a board does not base its findings on speculative comments and opinions (the common term is “generalized fears”).

My second observation is that the applicant’s evidence on whether the tower would harm adjoining property values was quite weak.  The Court determined, however, that the applicant provided the minimum evidence necessary to establish a prima facie case that it had met its burden of proof on each ordinance requirement, thus shifting the burden to the opponents.

G.S. 160A-393(k)(3) states that the opinion testimony of a lay person is not competent evidence to prove that a proposed use will harm the value of other properties.  What is missing from the statute – but which I argue is a compelling interpretation – is that the reciprocal situation would also be true: an applicant’s use of opinion testimony that a use will not harm adjoining or nearby properties is equally incompetent.  I’ve never seen a local ordinance that establishes a presumption of no harm, thus shifting the burden to opponents as a matter of law. The burden initially rests with the applicant to make the case that a use will not harm property values.  It appears that the lack of evidence on this issue was not raised by either side and therefore was not before the court.

Finally, this appears to be a classic case of an elected body having discomfort with (or contempt for) its quasi-judicial function.  Elected bodies are accustomed to making decisions in a legislative manner where council members’ feelings and opinions and even biases can be the sole basis for how they vote.  It is common that elected bodies are reluctant to give up the practically unbridled power that comes with legislative decision-making so that facts and procedures (and lawyers for the parties) control how they must vote.

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