Last Friday, August 23rd, N.C. Governor Pat McCrory signed three bills into law whose passage demonstrates how solid waste has transformed from a regulated industry into a political football.  Some new measures, like changes in application fees, are mundane.  Other measures, however, such as the allowable leak factor in hauling trucks, are highly charged, with opponents claiming everything from environmental disaster to political malfeasance.

 How did solid waste become so politicized?

The politicizing of solid waste took a giant step backwards in October 2005 when the Raleigh News & Observer trumpeted in above-the-fold, front page, 72 point type, “Yankee Trash Invades North Carolina.”

The headline demonized responsible companies developing five landfills already favored and approved by local host governments in the eastern part of the state.  Although each landfill was or would become fully compliant with federal Subtitle D regulations, environmental groups had found a new cause du jour.

In 2006 the legislature imposed a statewide moratorium on the construction and permitting of new facilities, and a year later it enacted the Solid Waste Act of 2007 which legislatively banned 5 large facilities in various stages of permitting but which had already received local approval.

Bias disclosure: I represented developers of two of these landfills (one pre-approval and the other post-approval) and spoke regularly to one of the consultants of a third. The staff of governmental power feels differently depending on whether you’re holding it or being hit by it.

I agree with Democrats who, since 2011, have decried a heavy-handed Republican legislature’s undoing of countless legitimate local government decisions.  But Democrats who think the practice started with this Republican-controlled General Assembly have conveniently forgotten the heavy-handed implications of the aforementioned Act of 2007 which nullified five legal and legitimate local government decisions to approve these facilities.

A pendulum pushed too far in any direction will, in time, react by swinging just as far the other way.

The Regulatory Reform Act of 2013

Regulatory reform was the North Carolina legislative mantra in 2013.  Reform culminated in several bills, but none as sweeping as House Bill 74, termed the “Regulatory Reform Act of 2013.”

H74 touched on everything from meals served at bed and breakfast facilities to regulation of fraternity houses, but the meat of the bill was in changes to rule-making, and the regulation of water quality, sedimentation controls and solid waste.

I’ll focus on solid waste and hit a few highlights.

Environmental Impact Studies

Until now, N.C. G.S. §130A-295.6(a) required NCDENR itself to conduct a study of the environmental impact of a proposed landfill and allowed the agency to pass any study costs to the permit applicant.  As written, the former statute gave a blank check to the permitting agency without a concomitant incentive to spend wisely.  As revised, applicants are required to contract with a qualified third party and only reimburse NCDENR for costs incurred to meet public notice and hearing requirements.

Leachate Collection Lines

Leachate collection line maintenance has been changed from annual cleaning (with two year cleaning allowed under certain conditions) to the more logical five year mandatory cleaning. (N.C.G.S. §130A-295.6(h))

Daily Cover

Currently, alternate daily cover is approved by NCDENR on a facility by facility basis.  However, alternate covers that at one time might have been experimental are now routinely used (e.g. Posi-Shell).  N.C.G.S. §130A-295(h1) provides that once NCDENR approves an alternate daily cover for one landfill, the cover is deemed approved for others.

Research and Development

Landfills receiving at least 240,000 tons of waste per year are required to engage in R&D for alternate disposal technologies, including gas-to-energy and waste-to-energy technologies, and to cooperate with the state’s universities and community colleges in this effort.  (N.C.G.S. §130A-295(h2))

Municipal Solid Waste Fees

N.C.G.S. §160A-314.1 was rewritten to provide that cities may impose and collect solid waste fees.  However the fees may not be used to enhance the city’s general fund.  Rather, fees may only enable the city to recoup solid waste collection and disposal costs.  Certain “surcharges” may be levied when the city contracts with another local government for waste collection or disposal.  Surcharges may be placed in the city’s general fund.

Penalties

Administrative penalties used to be levied based upon NCDENR’s determination of “the degree of harm caused by the violation and the cost of rectifying the damage.”  H74 created a list of 11 factors which made penalty assessment broader and fairer. N.C.G.S. 130A-22(d).

Storage of Nonhazardous Recycled Materials

N.C. G.S. 130A-309.09A forbids local governments from regulating the height or setback of recycled material stockpiles unless within 200 yards of a residential district.  Although I don’t know the backstory, this provision has all the hallmarks of a measure that originated with one legislator’s desire to block one local government’s effort to regulate one company’s business.

Local Government Solid Waste Management Plans

Although not part of the Regulatory Reform Act, House Bill 321 absolved local governments of their responsibility to develop and implement ten-year plans for local management of solid waste.

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There were more statutory changes in the area of solid waste but these are the high points.  This week I’m attending and speaking at the SWANA Quad-State conference in Myrtle Beach.  Stay tuned for interesting updates from the conference.

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It appears that my previous post (Protest Petitions Killed . . . Finally) was premature. The NC House did vote overwhelmingly to repeal G.S. 160A-385 which grants unelected citizens a unique power to control the decision-making authority of a city council engaged in routine rezonings.

However, the Senate refused to accept this amendment (called a “proposed committee substitute”) to a bill the Senate had previously approved.

In the meantime, several comments were posted (or attempted to be posted) to my blog, several comments arrived by email, some came face-to-face on the street, and others came indirectly by letters to the editor. My commentary and replies follow:

    Nobody has Responded to My Argument

    So far my central point is unchallenged by politicians, neighborhood advocates, academics and other attorneys. As I said in reply to one of the comments:

    “There is no justifiable basis for allowing an unelected and unaccountable citizen to force a super majority vote on any duly elected and constituted democratic body. While there are examples of votes requiring more than simple majority (e.g. to amend the Constitution or ratify a treaty), not one of them is triggered by the petition of a single citizen. The protest petition is a power without any precedent in any context in local, state or federal government.”

    Someone I respect a great deal took issue with my comment about majority vote being a bedrock principle of our democratic process, reminding me that we modify majority vote in certain known circumstances. He wrote: “At the federal level a simple majority is not enough to ratify a treaty, to break a filibuster, override a veto, or to propose an amendment to the Constitution. State legislatures are similarly bound for a variety of issues for which more than a simple majority is deemed prudent. At the municipal level . . . the issuance of a variance has always required a supermajority. It may or may not be a wise policy to require a supermajority in a given circumstance, but it is not unprecedented.”

    Exceptions to the rule do not disprove the rule, and my point still awaits credible challenge.

    All of the situations listed above are built into a constitutional or statutory structure and serve a system built on checks and balances. Not one of these votes is triggered by a single citizen deciding on his or her own that a duly elected governing body must decide a certain issue by a supermajority vote. That is why protest petitions are anomalous and, if used at all, constitute a misuse of unaccountable power.

    Viewing a protest petition as a citizen strong-arming a developer is myopic. It is rather a single citizen strong-arming a duly constituted political body that was elected by the will of the people through a controlled democratic process called an election. If you want to control a vote on the city council, then you need to run and get elected. But even then the only vote you get to control is your own.

    Professor David Owens

    Nobody is more important to the study and understanding of land use law in North Carolina than David Owens, professor at the UNC School of Government. David took issue with my response to groups who claimed they had no prior knowledge that the amendment to this bill would be filed. I said, in summary, that the development community had no prior knowledge that the bill to modify the statute would be filed back in 2005.

    Professor Owens corrected my broad brush description and suggested that I make it clear that the development community had ample time after the 2005 bill was filed to work with the drafters and other groups (unlike this year when the amendment appeared overnight and at the end of the session). His description of the 2005 discussion is below:

    “The development community had direct knowledge of these specific proposals over a six month period and took advantage of that to make a number of substantial contributions to improve the bill under consideration. Saying or implying otherwise is a disservice to the strong inclusive intentions of Sen. Clodfelter and Rep. Allen and to the good work of those in the development community, the planning community, and local government who worked collaboratively to produce the end result that was enacted.”

    It is fitting that I correct that point in this post, and I apologize to readers, Sen. Clodfelter and Rep. Allen, and especially to Professor Owens, for my oversimplification that skewed historical facts.

    Claims that Zoning Cases are Different

    I’ve heard the argument many times that zoning cases are different because individuals who live next to a proposed land change are directly affected.

    This argument gains no traction with me. This year our legislature passed numerous bills that directly and substantially affect citizens far more than a zoning change, including bills that suppress the constitutional right to vote; bills that impose government’s heavy hand into private decisions between a woman and her physician; bills that deny basic health care and legal representations to indigents; and bills that, essentially, shift scarce resources from public schools to private, religious schools. Each of these bills was passed by majority vote, and I have yet to hear someone advocate or argue that it is fair to grant a single citizen directly affected by one of these bills the power to sign a petition that forces our legislature to approve the bill upon a supermajority vote.

    The question, you see, is not whether a zoning or statutory change is good or bad or wise or unwise. The question is how much power we grant to a single person not chosen by the citizenry, who is not answerable to anybody, to control the vote threshold of the local (and duly elected) city council.

    Tone of Discussion

    I write this blog to add to the intellectual discourse regarding land use and environmental issues and to offer a voice and insights that usually are not represented in public discussion. Whether you agree with my positions, I hope that I have acquitted this task professionally and with integrity.

    Some of the comments and attempted comments to the preceding post threatened the tone of discussion that I wish to protect.

    I have known for years that there is a subculture of citizens who live in developed neighborhoods, shop in developed retail centers, work in developed office complexes and play in developed recreational areas, who nonetheless despise developers and anyone connected to the development process.

    I was unprepared for the spiteful tone of “discussion” by some commentators, including a local blogger (he refuses to use his name and believes erroneously that I should know who he is) whose rants were filled with grammatical errors, poor syntax and personal invective. After posting his first comment I refused to post others in order to maintain the decorum of this blog. His were not the only ones I decided not to accept, but they were illustrative.

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In an unexpected move the NC House voted last Thursday to repeal the statute that allows citizens to file protest petitions which frustrate a city’s ability to rezone land except upon a favorable 75 percent majority vote. The decision saw little debate, and the N.C. League of Municipalities, whose members were evenly split on the issue, remained neutral.

Dating to the 1920s when conditional zoning, trained professional planning staffs, instant communication, and well-developed comprehensive plans were not the norm, protest petitions have become an anomalous and routinely abused power.

The protest petition statute provides that when a person who owns as little as 5 percent of the property surrounding a rezoning site signs a petition, the city council loses its ability to make a zoning decision by majority vote. On a nine member council, one person’s signature raises the vote threshold to a seven member super majority vote.

Neighborhood groups are slow to acknowledge the many instances when protest petitions are used to deny a rezoning that is recommended by a professional planning staff, consistent with the adopted growth plan, and even identical to the zoning of adjoining lots. Nor do they acknowledge the manifest unfairness of such an extremely low five percent threshold (usually one person) triggering a 75 percent majority vote, an onerous margin even higher than the two-thirds vote required for Congress to amend the U.S. Constitution.

They perceive protest petitions merely as creating fairness. If your question is whether a rezoning process should be fair, the answer is always “yes.” But how to implement a fair process is not the question.

The question is how we can justify allowing a single citizen, answerable and accountable to no one, to have unilateral power to commandeer a duly elected city government by allowing the citizen to control two of the government’s votes. It is a power without precedent or rationale in a democratic system based upon the bedrock principle of majority vote. And such power, of course, is patently unfair.

Council members are elected by the will of the people; the neighbor is unelected and self-appointed. Council members are required to listen to staff’s analysis; the neighbor is not. Council members are required by statute to consider the comprehensive plan, but the neighbor is not.

A council’s decision is subject to a variety of legal challenges, but the neighbor’s decision to protest is not subject to legal review except as to whether it was filed in time and meets the five percent requirement. Neither is the neighbor, like council members, accountable at the ballot box, yet we essentially give that unelected person two votes on the city council.

There is no other power extended to a single citizen by our statutes that is greater than the power allowing one person to alter the manner in which duly elected officials can transact the public’s business and deny an entire city its right to have a decision made by majority vote.

Several groups and legislators have complained that the provision eliminating protest petitions was slipped into a reform bill last week without their knowledge or consent. However, when the protest petition statute was modified in 2005 to create the 5 percent threshold, the bill was drafted by Senator Clodfelter with assistance from the planning community. The development community had no prior input or knowledge.

When the issue was hotly debated in Greensboro in 2009, the development community offered several compromises. The Greensboro Neighborhood Congress refused to accept any of the compromises offered, including raising the threshold from five to twenty percent and implementing a two-thirds vote rather than three-fourths.

Modern rezonings follow a highly prescribed process that includes pre-zoning comprehensive planning, staff review, planning board review, public notice and public hearings. It is a process designed for open participation, deliberation, and yes, fairness. Thanks to the legislature, the protest petition can no longer be used to subvert this democratic process.

POSTSCRIPT: UNC School of Government professor David Owens, the most knowledgeable person anywhere on N.C. land Use law, emailed me this morning to correct my description of the 2005 legislation. Among other points, he reminded me that Senator Clodfelter proposed the bill to clarify the confusing language in the then-existing statute. At that time, the threshold was 20% of the owners “on any one side” of the property. However, unless the property is a perfect square (it never is), it’s difficult to determine what constitutes a “side.” And, there could be more than four sides, depending upon the tract’s shape.

The building and development communities did participate in the discussion, as Professor Owens noted, and there were some compromises made to accommodate their concerns. My point remains, however, that they had no prior knowledge that the bill would be filed, just as neighborhood groups had no prior knowledge that this amendment would appear last week in S112. And my major contention remains as well: all we were doing in 2005 was tinkering with a tremendous power that should never be placed into the hands of a single, unelected person to essentially control a democratically constituted government.

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This past week the U.S. Supreme Court issued an opinion in Koontz v. St. John’s Water District, a case lauded by property rights advocates as a “landmark ruling” and claimed by the permitting/planning communities to be an unreasonable shackle on legitimate governmental powers. It is neither.

What were the [true] facts?

The facts read differently in the respective majority/minority opinions. I’ll merge the facts from each and offer some interpretative analysis to fill in some gaps.

Coy Koontz bought 14.9 acres in Florida in 1972. A power line and drainage ditch created a naturally divided 3.7 acre northern tract and 10.2 acre southern tract. Permitting laws (which are not challenged here) allowed the water district to impose “such reasonable conditions” as are necessary to protect the district’s water resources.

The southern tract appears from the facts to be bona fide wetlands, containing up to a foot of water at many times of the year. The northern tract, as Alito described it, was “largely classified as wetlands by the state” but he also cited some quick “facts” suggesting it was either misclassified or the classification wasn’t relevant to him. It was clear that Mr. Koontz needed to add fill so that he could build upon it.

When Mr. Koontz requested a permit, he offered to build a dry pond to catch runoff and to place the southern 10.2 acres into a conservation easement. The District found that offer to be insufficient for mitigation and, according to Justice Alito’s fact summary, told him that he could either (1) reduce the amount of impervious surface (a phrase not found in the opinion but which I’m assuming is what was meant) to one acre, place the holding pond under the building, and dedicate the remaining 2.7 to a conservation easement, or (2) continue the plan as submitted on 3.7 acres but make costly improvements to wetlands miles away as mitigation.

In her dissent, Justice Kagan delved deeper into the testimony and facts from the trial court rather than relying upon, as Alito did, a vague and convenient fact summary. It’s only in reading the dissent that you learn the District did not make an either/or “demand” or act in a bullying fashion that the planner/permitting world is capable of doing. Rather, according to Koontz himself, the District mentioned several possibilities for mitigation “only in broad strokes.” Koontz refused to discuss alternatives and it was he, not the government, who took a “my way or the highway” approach.

In short, Koontz was not the victim property rights advocates might make him to be, and the District was not acting in an arbitrary, oppressive or unreasonable manner. Nonetheless, I support the majority’s holding and find the result to be both correct and little more than the application of existing law under new facts rather than a significant extension of the law.

    The Holding

The holding itself is simply described. The twin rhyming cases of Nollan and Dolan apply equally when the government makes an unreasonable demand for the expenditure of money in exchange for a governmental benefit, and it makes no difference whether the permit was approved or denied for a citizen to have a legal claim. (The second point acceded to in the minority opinion).

Justice Alito opened his opinion by describing Nollan and Dolan as cases that “provide an important protection against the misuse of the power of land-use regulation,” thus setting the stage for a discussion of the abuse of governmental power. He proceeded to describe Nollan/Dolan as protections against governmental employees making what he repeatedly termed “extortionate demands” on private citizens.

Alito correctly and clearly noted that Nollan and Dolan affirmed the government’s right to require that a development project mitigate its impact on the community. However, the mitigation required must have some reasonable connection (nexus) to the impact, and the mitigation must be roughly proportional to the impact.

He astutely observed, though, that governmental employees with broad and discretionary power either to withhold a permit or a needed recommendation to an elected body can be like bullies on the playground (my phrase, not his), making “extortionate demands” on private citizens who had unequal power at the bargaining table. Whether you’re a bully demanding a quarter from a smaller child to allow him to use the swing set or a planner/regulator demanding a king’s ransom for a simple permit, the principle is the same. This unequal power enables the government “to pressure an owner into voluntarily giving up property for which the Fifth Amendment would otherwise require just compensation.”

“Extortionate demands.” You will see this phrase again many times. However, it only captures the majority’s sentiment. It does not describe the holding.

    Case Commentary

• I have competed in this rodeo many times and in many places (and in three states) on the federal, state and local levels. The abuse of governmental power exists on a sliding scale in many corners and crevices. Power is an intoxicant. Some people need regular doses, and the parade of developers and citizens coming to the planner/regulator on bended knee creates both an expectation and a rich opportunity for that daily or weekly dose of power. Sometimes the “extortionate demand” is palpable and delivered with a whiff of arrogance or, worse, a tone of indifference. Other times it’s subtle and expressed through a passive aggressive refusal to return calls or to acknowledge ordinance provisions that the planner/regulator knows exist. Nollan, Dolan and now Koontz are necessary to protect citizens under appropriate circumstances. To liberally paraphrase Justice Potter Stewart, “The abuse of governmental power is hard to define, but I know it when I see it.”

• The playground bullies of the planner/regulator world are the exception, not the rule. In 28 years I’ve handled matters in over 150 towns and counties and found most state and local regulators to be solid civil servants who are not paid their worth. Most of them are willing to listen, offer good advice and seek workable solutions with developers. Several outstanding planners/public servants come quickly to mind, such as Guy Cornman (Davidson County), Hal Johnson (Randolph County), Bob Harkrader (Burlington), Leslie Bell (Brunswick County), Jonathan Marshall (Cabarrus County), Chris Murphy (Winston-Salem and one of my blog readers), Ron Satterfield (Wilmington) and Les Eger (Guilford County). And no, I do not have zoning matters pending in any of their jurisdictions.

• I’m disappointed that Koontz didn’t present better facts and a more sympathetic petitioner. There are enough extreme cases where the powerless citizen must deal with unreasonable exactions that it would have been preferable to have had a true victim and bona fide extortionate demands. However, inasmuch as it took 19 years of circuitous wrangling to get from permit request to Supreme Court ruling, it’s hard to complain.

• If I had been one of the justices I would have found that until the government actually presented Koontz with a take-it-or-leave-it demand and the demand failed Nollan/Dolan, he had no standing. All we have here is the beginning of a conversation with the District, and therefore a case not ripe for adjudication. To that extent I agree with Justice Kagan.

• I have enjoyed watching the hand-wringing from the American Planning Association and angst-y comments from planners on the NC Planners’ Listserv who feel as though they’ve been stripped of power and rank. To my knowledge, I’ve never met Patrick Young, Asst. Director of Planning in Durham, but kudos to him for bucking the knee-jerk trend and commenting that, while the opinion might place more scrutiny on planners’ efforts to mitigate projects, the decision “could actually result in better planning” despite the perception of Koontz as an intimidating presence.

• As often as I represent the developer/builder’s interests, even I could not assert with a straight face that dedicating a conservation easement for land under a foot of water much of the year amounts to “mitigation.” The most development possible under federal and state laws for Mr. Koontz’s southern tract is a raised platform for fishing or duck and deer blinds for hunting.

My crystal ball, as cloudy as it sometimes can be, predicts that we’ll have increased litigation under the Nollan/Dolan/Koontz nexus/proportionality standards – not because Koontz lowered the threshold and made governments more vulnerable but because it calls increased attention to abuses that really do occur. Communication Skills 101 and Personal Relations Skills 102 will go a long way towards, in the words of Mr. Young, “better planning,” and even further towards avoiding lawsuits.

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I live in a city that’s pretty screwed up. In many ways. But last month a cavalry rode into town with sabers drawn and bugle blaring, and our salvation may be at hand.

In land use planning there is no official category termed “screwed up city” but it fits.

I grew up – and returned to live and raise a family in – High Point, Furniture Capital of the World. 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 majority of the downtown space and close to 100% of the store fronts, 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 in an outparcel-heavy district on Highway 68, three miles from downtown.

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

The cavalry that rode into town was a consulting group led by Andres Duany, who some have called the Father of Neo-urbanism. Duany’s team was organized by High Point “City Project” and paid for by private and public contributors who are desperate to see our city turn around before we have fallen irretrievably over the cliff.

Duany described High Point’s furniture market as “the most complete monoculture I’ve ever seen,” adding that all it is good for is “fame and tax base.” The town is designed and constructed to support a semi-annual economic event that, in itself, causes High Point to exist on statistical ledge, waiting against an unexpected event – any event – to topple it to the canyon floor below. “If the monoculture sneezes,” Duany noted, “there is no Plan B.”

In both standing-room-only public presentations, Duany expressed amazement at the obstacle created by the “market.” “When the market is gone, the entire downtown hibernates. . . . I’ve been to many places but never to a place where all the storefronts hibernate.”

In economic terms, Duany explained that the market is a “spike,” and spikes are terrible for commerce because businesses must continually “staff up and staff down.” High Point, he marveled, has the “Everest of spikes.”

Duany’s antidote is to create a mixed use town anchored by one “hot destination” district. Since the historic downtown is unavailable for that, he recommended another area several blocks north. “All it takes is two and a half blocks to create a famous destination,” citing examples of 2-3 block famous areas all of us had heard of.

High Point also must plant trees along that stretch and engage in “road dieting,” something he described as a non-negotiable aspect of the plan. Road dieting eliminates the hostile experience of speeding traffic, creates places for parking and landscaping, and nurtures a friendly, desirable place to visit.

Historical sidebar: High Point would have an even wider Main Street (it’s now four lanes plus center) were it not for my great-grandmother who, in a brazen act, moved the family business (Richardson’s Department Store) into the sidewalk space and much closer to the street, forcing all stores to move forward in order to compete. End sidebar.

Duany’s plan, presented in skeletal form after a week of charettes, included all sorts of other ideas, such as using “sea cans,” those containers used for overseas shipping, as cheap and quick ways to establish retail establishments.

If he was hostile to anything, it was the government, which he sees as an unnecessary obstacle driving up costs. “Why are all the kids these days becoming artists and filmmakers?” he asked. “It’s because those are the only things you can do without a governmental permit.”

Many other cities with fewer resources have been able to reverse urban divestiture and re-create a portion of their downtown that once was. However, no other city, to Duany’s knowledge or mine, has had to reboot their downtown without an available downtown. Stay tuned for developments!

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Two interesting things happened today. The first is obviously related to land use and the second is . . . obviously related to land use.

First, this morning the N.C. Senate Commerce Committee unanimously approved a “PCS” (proposed committee substitute) for the Board of Adjustment bill that unanimously passed the House 119-0. The changes are stylistic only (plus a correction of one very embarrassing noun/verb agreement error).

This bill was conceived and drafted this year through the Land Use Section of the NC Bar Association. Drafting was done in an open and transparent manner, and many, many folks throughout the state can find their thumb print in words and phrases in the bill draft.

[More about this bill and how it restructures and modernizes boards of adjustment in North Carolina in that vague “if/when” future of bill passage.]

Second, Smithfield Foods, with 10,000 N.C. employees, announced today that it has agreed to be acquired by a Chinese company for $4.7 billion. This acquisition will be the subject of many commentaries and editorials, but I dare say this will be the only one tying it to land use.

Several times a year I represent companies who need a zoning change before they can acquire land for development. In many cases, my clients are companies from out-of-state or are in-state but from out-of-town. The larger the company the more the rezoning can feel to a neighbor as though it’s an invasion by an outside force.

And because humans are, by nature, territorial, change wrought by outsiders tends to be feared or interpreted negatively. Similarly, our collective fear of the economic and military power growing in the East is amorphous until a company with several N.C. outposts comes under its ownership and control.

The Chinese haven’t invaded us. They have bought us. But acquisition and invasion are but two sides of the same coin, and the unsettling feeling it generates is no different than the feeling neighbors have when a development company from Ohio decides to buy Mr. MacGregor’s farm next door to build one of its subdivisions.

Unless you live next door to a proposed development, growth in one part of town is little different than growth anywhere, just as the Smithfield pigs will no doubt find that corn paid for with American dollars taste just the same as corn paid for by Chinese yuan.

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This past Sunday’s New York Times had a fascinating article on the culture of corruption in Spain and other southern European countries – countries which for centuries allowed local mayors and magistrates to enrich themselves through graft and bribery.

Three short paragraphs were harsh:

Spain is by no means Europe’s most corrupt nation — Greece and Italy are considered more so. But the sheer volume of political corruption cases here is proving deeply embarrassing.

Judges here are now investigating about 1,000 officials ranging from small-town mayors . . . to former cabinet ministers. Even the country’s conservative prime minister, Mariano Rajoy, has turned up on a list of his party’s stalwarts who were supposedly taking payments under the table. . . .

There are so many scandals that some newspapers have taken to organizing all but the biggest developments in a quick-list format, rather than writing whole articles.

Why does this article fascinate me? Because in 28 years traveling to local governmental meetings and hearings in every section of our state, I have never – and I truly mean never – heard an elected official or staff person so much as quietly hint that money or favors could result in a different outcome. Nor have I heard any other land use attorney tell me that they’ve been approached about under-the-table payments.

Equally true is that I have never represented any owner or developer who has asked me how to grease the political skids through a form of payment or favor, nor have I ever been aware of a client who did so behind my back.

Yes, we occasionally read about corrupt acts, but those are the exceptions. So why are we so different from southern Europe? Why does our political culture function on the “up and up” rather than the down low.

I could give several answers that would reverberate with shallow-minded rhetoric about how America is a better country and we are a better people, but my own barf buttons would get pushed before I could hit the “publish” command that sends my words into the blogosphere.

Rather than trying to delve too deeply into why our local government culture eschews corruption, and rather than using my observation as an opportunity to engage in blather, I’ll just simply express gratitude.

    Too Much Information?

    Perhaps I shouldn’t admit this, but I read the quoted article this past Sunday on my iPhone while sitting through a church service (which I occasionally do attend). And since I’m now tweeting, I sent it out into the world to all five of my followers before the final hymn. You can find me on Twitter by going to @terrelltom and become my sixth follower.

    Would you comment?

Among my blog readers are other land use attorneys and several elected officials, planners and other city and county staff. I would love to know – by your comments below – whether your experience mirrors my own or whether you have ever personally experienced the type of corruption in our local governments that, according to the NY Times, is prevalent in southern Europe.

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Two nights ago I attended a public hearing in Asheboro where Randolph County considered approving a new landfill next to its old landfill. Granted, landfill hearings generate their share of emotion, but civility is civility and this hearing was in short supply.

[Fair disclosure: the county is my client]

According to the Courier Tribune article, “several of the supporters were heckled loudly.” It’s true. Landfill opponents loudly booed some who voiced landfill support and cheered on cue for comments against the proposal. One opponent shouted angrily and uncontrollably at the commissioners from a podium that was only a few feet away. Others spoke in tones of voice that were derisive, condescending and snide. At least one in six speakers came from out of county. [I only address here the manner of communication, not the substance of the comments or the substance of the decision.]

Our country was built and thrives on public discourse by the wheelbarrow load. Bull horns, shouting and name-calling have their place in our parks, political parades and public corners, and those methods of communicating are a valuable part of our tradition. But there are lines you don’t cross. Once you enter the governmental chambers, catcalls and boos are inappropriate and disrespectful of the offices our elected officials hold.

Does that make me conservative and old school? Probably. After all, I’m one of the few who still thinks you should dress respectfully when coming to speak at a public hearing, and that means tucking in your shirt, no T-shirts with beer company logos, and no flip flops.

The Randolph commissioners are dedicated public servants who work hard to do their job and they did nothing to deserve what they went through.

There are few lawyers who have been in as many different hearings in as many different places as I have, and my experience Monday night was not the norm.

Case in point. As I write this I have just returned from a town council meeting in the Town of Wentworth, the capital seat of Rockingham County, and the contrast between tonight and Monday night is stark. I’ve had the honor of serving as Wentworth’s attorney or supervising attorney for more than ten years, and I’ve previously described their meetings as reminding me of a scene in a Norman Rockwell painting.

In more than ten years I have never heard a member of the public speak in anything but civil tones. Some citizens come to council meetings just because they want to know what’s going on in their community. Council members are glad to see each other and have been known to hug in greeting. Votes do not follow partisan lines, and you never witness posturing for the media. Political humility is the norm.

Tonight the retiring town administrator gave her final “budget message” and took the opportunity to make some predictions for Wentworth’s future, including the prediction that “a restaurant” may soon come to Wentworth. “A restaurant.” I noted the singular description expressed with small town hope and gratitude.

Tonight was also special because Ms. Powell, one of the council members, just turned 90 and there was cake and punch to celebrate.

Here’s to more governmental meetings in the style of Wentworth. Here’s to the tradition of civil discourse we all should cherish.

And here’s to Ms. Powell serving at least until she’s 100.

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            As a quarter-century veteran of land use battles in every corner of this state there’s little I haven’t heard.  But this much I know. What people think is often not reflected in what they say at the public podium. 

             And being a veteran Southerner in my mid-fifties, I have decently honed skills in recognizing coded language, when people sanitize the thoughts and language freely expressed around the privacy and sanctity of the kitchen table in order to say-without-actually saying what they want a board to hear (and which boards – at one level or another – are good at hearing).  Racial code words used to be prevalent in land use public hearings.  More often than not it’s now fear that Hispanics are moving into “our” neighborhood.

             After all, there are no limits to what we fear and what we think, but our uttered words and sentences wear the shackles of social and political propriety.

             Recent litigation in Nash County offered excellent behind-the-scenes glimpses of what folks say in one context but describe differently when being deposed and under oath in what feels like a private conversation in a small room with an opposing lawyer.  And now that the Court of Appeals has decided the case, I’d like to share with you what some of the plaintiffs said under oath. 

             In cases where standing is contested, courts have little choice but to accept at face value what citizens claim at public hearings.  While I’ve written and spoken about this phenomenon for years, the Morgan v. Nash case recently decided by the Court of Appeals amply illustrates my point.

              I do not quote plaintiffs to ridicule them.  I do it because it is so rare that zoning case plaintiffs are deposed on matters related to standing and where their true feelings are plumbed.

             In this case, the City of Wilson and 34 individual plaintiffs sued Nash County over a zoning decision that could enable a Mississippi company to build a chicken processing plant.  Street level comments – reported to me by many – were heavily peppered with comments about the Hispanic workers the plant would attract to the area.

             But when the same folks who say one thing on the street came to speak at public hearings, they suddenly became lifelong environmentalists concerned only about industrial impacts to water, air and soil.

             In fact, two Nash County officials explained to me at the beginning of litigation that part of Wilson’s concern, as expressed by its mayor in a private meeting, was that Nash would get the tax base while Wilson would only get what he called the “social costs.”  Under direct examination before a court reporter he denied that he said it.

 What did plaintiffs say behind closed doors?

             But what did the plaintiffs say behind closed doors?  Following are some direct quotes from lawsuit depositions that illustrate my point.  These depositions are public documents and available for anyone to read. All of the plaintiffs are white. Most of them live in a rural and somewhat upscale subdivision over two miles away.  It was clear that many of them wanted to protect their end of the county as a segregated place where only “people like us” (my phrase) can live. 

             Notably, nowhere in my deposition outline did I plan to ask – or ask without invitation – any question related to racial, xenophobic or similar fears.  The following comments were simply volunteered, but I did follow up what they initiated.

             Let’s start with Faye Daniel who did not live in the distant subdivision but just under a mile away from the rezoning site. She made it clear that she thought “GI [zoning] is going to change the complexion of our community.”  [Note: in fairness, the court reporter wrote “complex” but the comment was “complexion.”]

 Faye Daniel    

Daniel:             But . . . these jobs are not going to be held very long by local people.  It’s going to bring in illegal citizens probably . . . Unfortunately they’re going to end up being dependent upon Social Services. . . . And it’s just going to be a detriment to our community where we don’t have a higher quality . . .

Terrell:             What I hear you say is that a large part of your opposition is to the type of people?

Daniel:             Yes, that is it, and these people are brought in to do this work.  Many of them are Hispanic people . . .

Terrell:             Would they lead to some of the – any crime increase?

Daniel:             Oh yes.  Knightdale was loaded with crime.

Terrell:             From Hispanics?

Daniel:             Uh-huh.  Oh, yes.  I was protected by a gang. 

Terrell:             When you taught? [She had been a teacher in Knightdale]

Daniel:             Yes . . .

Terrell:             And would you also be worried that they would be looking for places to live in the community?

Daniel:             Yes.   

 Daniel Cantu

 Daniel Cantu lived 2.187 miles from the zoning site. As the lawyer asking him questions, I admit that he pushed one of my very pushable buttons when he proclaimed that he moved into this rural agricultural area expecting not to hear farm tractors and smell the odor of farm animals.

 He opined that the rezoning will bring the “traffic of crime” and “trailer parks and those type (sic) of people that are going to be the bulk of the low paying jobs there.”

 Cantu:             Well. This side of the county where we live (emphasis added)

Terrell:             What do you mean . . . people with higher income?

Cantu:             Yes . . . People who are going to work here are going to probably want to live close to it . . . which is around where these nice neighborhoods are and where we live.” 

John Leposa

            John Leposa lived exactly 2 miles away from the site. He was fearful that “different demographics” (his term) making up what he anticipated would be Sanderson’s work force would bring crime to his neighborhood.

Kathy Williamson

             Ms. Williamson lived 2.08 miles away.  She works at Wilson Community College but also has a real estate broker’s license and was keenly aware of the legal prohibitions against describing a neighborhood as “changing” (i.e. integrating) or mentioning racial or ethnic groups.  In the dialogue that follows, the topic is raised by Wilson’s attorney, T.C. Morphis.  The underlying issue, of course, was whether plaintiffs in Ms. Williamson’s neighborhood had standing.  I believe T.C. was unprepared for her answers.

 Morphis:          You said you still have a valid real estate broker’s license, is that right?

Williamson:     I do.

. . .

Morphis:          Now, is it important when you’re trying to sell property to know about property values?

Williamson:     Absolutely.

. . .

Morphis:          What influences property values?

Williamson:     Things we’re not allowed really to talk about.  Good neighborhoods – you can’t really say that to a client.

. . . . .

Terrell:             What makes a neighborhood good or bad?

Williamson:     Things like traffic, and . . . [very long pause]

Terrell:             When you say “those things you can’t talk about,” what are those things?

Williamson:     I’m not even going to go there.  Let’s not even . . .

Terrell:             Are you talking about black people and Hispanic people?

Williamson:     We don’t talk about stuff like that.

Terrell:            So you don’t talk about black people or Hispanic people?

Williamson:     No.

. . .

Terrell:             Is income level one of them?

Williamson:     Income level?

Terrell:             Uh-huh

Williamson:     No.

Terrell:             Then what else?  You had a plural list.  [a long pause that reached perhaps two minutes followed this question while I sat and waited]

Williamson:     Rednecks.  That’s all I’ve got to say.    

 Were plaintiffs truly concerned about the environment?

             To bolster my point that plaintiffs’ claims of environmental damage from Sanderson’s plant were chicken poop at best, following are some selected testimonies from plaintiffs’ depositions.  No plaintiff could do anything more than repeat a general theory they had overheard that a chicken processing plant (or other industrial use) would have a negative environmental impact.

 Kevin Bright

             Kevin Bright lived 2.864 miles from the rezoning site, the farthest of any plaintiff.  He lives on the banks of the Tar River and regularly fertilizes his yard.

 Terrell:             So you don’t want GI zoning close to where you live?

Bright:             I don’t want it because it’s in the protected watershed, and in proximity to                                     our water supply, our drinking water supply in the reservoir.

. . .

Terrell:             But you don’t drink the water.  Your water . . . comes from a well.

Bright:            Well, it comes from the well.  It comes out of the ground.

Terrell:             So you’re telling me that 2.864 miles away is a potential for some type of                           a groundwater contamination occurring [that affects you].?

Bright:             Sure. Sure.

Terrell:             Based on what?

Bright:             Based on proximity to the river.

Terrell:             But you don’t drink from the river.

Bright:             Well, I don’t know that for certain.  But I’m saying that the contamination                                     of the water supply is very likely.

. . .

Terrell:             Your well water is separate from the surface water, is it not?

Bright:             I don’t know.

Terrell:             Do you have any idea what all that nitrogen that you put on your grass is                            doing to the river?

Bright:             I have no idea. 

 Sandra Bright

 Terrell:             Why shouldn’t this 150 acres be [rezoned] exactly like your subdivision’s                           been [rezoned]?

S. Bright:         This is a protected watershed.

Terrell:            Yours is not? You’re on the water . . . Why am I not figuring this one out?

S. Bright:         Ask the question again?

 George DeSanto

             Some plaintiffs complained about noise pollution from an industry that would be located over 2 miles away.  One of them was George DeSanto who had recently moved to Nash County from New Jersey.

             Why? Mr. DeSanto stated, in all seriousness and oblivious to the irony, that he moved to Nash County because he wanted a quiet place to ride his [loud] motorcycle.

 Joe Lybrand

             In addition to environmental concerns from any industry moving into the southern part of the county, Mr. Lybrand wanted to keep out farms!

 Terrell:             Does it bother you that there are farmlands all around you?

Lybrand:         No.

Terrell:             You’re not worried if a dairy farm came in?

Lybrand:         Yes, that would worry me.   

             Mr. Lybrand wasn’t the only one who moved into a rural area but didn’t want to be near farms.  Plaintiff Gail Sullivan stated that she would attend a public hearing to protest a planned horse or cattle farm because of the odor and flies.

 Was the Rezoned Tract in Their Neighborhood?

             Standing to be a plaintiff is a fact specific inquiry, and one of the questions I put to most plaintiffs was whether they knew any of the individuals who lived on property adjoining the rezoning site.  Not a single plaintiff (of approximately 25) who lived in the distant subdivision knew any of their “neighbors” over two miles away.  Following is a typical exchange where I asked one of the plaintiffs (in this case, Joe Lybrand) why he considered the rezoning site over two miles away to be his neighborhood:

 Terrell:             You don’t know Roger Parker, do you?

Lybrand:         No

Terrell:             You don’t know Ada Morgan, do you?

Lybrand:         No.

Terrell:             You don’t know Judith or David Scull, do you?

Lybrand:         No

Terrell:             You don’t know Cecil or Bertine Williams, do you?

Lybrand:         No

Terrell:             You don’t even know Faye Daniel?

Lybrand:         No, and I get Faye doesn’t know me, either.

Terrell:             And you don’t know Jean Bissette, do you?

Lybrand:         No.

Terrell:             In fact, you don’t know anybody who lives up on Tar River Church Road,                                     do you?

Lybrand:         I have a co-worker who has a father who lives on that road.

Terrell:             But you don’t know him.

Lybrand:         No

Terrell:             The fact is, you don’t even consider the area where Tar River Church                                  Road comes into 97 to be your community, do you?

Lybrand:         Sure I do.

Terrell:             You don’t know anybody who lives up there.

Lybrand:         So?  

 Conclusion

             To be clear, I don’t suggest that all land use opponents hide behind the environment when their real concern is one that cannot be stated publicly.  I do suggest, however, that such disingenuous statements are common, and board members should listen carefully to what is said and not said. 

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            Three years ago this morning I poured the first cup of coffee of 2010, closed the door to my study, and wrote a melancholy reflection of the economic devastation we had witnessed the preceding year.  One year ago I republished the original post (Ringing in the New Year with Appropriate Punctuation) with a follow-up reflection titled The Sound of Chirping Birds.

             We’re coming back.  In this morning’s paper I read that a national homebuilder (Pulte Homes) is the S&P’s largest “gainer” for 2012, increasing its stock value 187%.  Rounding out the top five stocks for the year is Bank of America, both a cause and symbol of the economic collapse in late 2008.

             While I never know who my readers are, WordPress tells me each day which of my past posts have hits.  For reasons unknown, these two posts continue to be found and read.

             So . . . to start the New Year that we call Twenty Thirteen, I’ll republish both posts below.

 The Sound of Chirping Birds

             On a few occasions I’ve used this blog to comment on the economy that undergirds land development and growth.  Two years ago, I woke up on New Year’s Day and, reflecting on the economic carnage we all had witnessed during 2009, wrote a post that captured what it felt like to have been in a profession that was bloodied and bruised by an army we never saw coming over the hill.  After all, those of us with clients in the land development business seemed to carry more body bags than other industries did.

             I ended that post on a note of mild optimism with these words:

            “So today, January 1, step with me into 2010.  If you come through the door with me the brass section won’t play and the champagne won’t flow, but I can promise that the sun will come up, and if we wait awhile we’ll soon hear chirping birds.”

            Little did I know how long the night would last.  But I’m listening closely, and I think I hear the distant sound of birds chirping, although they aren’t yet here.  I’m looking hard and seeing hints of a sun about to rise.

             Economists can debate numbers on graphs, but I look at newspaper headlines, the upticks in numbers of filings for rezonings, new client activity, and smiles on realtors’ faces.  I notice local giving to nonprofits and gauge activities of new companies in town.

             You can talk about the Euro and GNP and the Dow Jones all you want, but I believe the sun is starting to rise.

             To read my January 1, 2010 post in the original, click here.  To read it without the extra click, read below:

 Ringing in the New Year with Appropriate Punctuation

             Happy New Year.

             I’m sure that’s the first time I’ve written that phrase without the usual and somewhat clichéd exclamation point.  New Year’s Eve celebrations have a sense of falsity about them anyway.  Mildly fake revelry.  A feeling that we’re required to stay awake two hours past normal bedtime although we’re really not sure why.

             Today I just want to ease open the door to 2010, pause quietly as I glance back at the worst economic year of my lifetime, and step unnoticed into the New Year.

             That quick, backward glance is not pretty.  It provides no reason to linger unless you’re the driver who rubbernecks at highway carnage. 

             This year we were reminded that a capitalist economy has contractions, but the tidal ebb was different this time because the root causes did not seem to be part of the natural order of things.  There was a feeling that those who controlled our banks and investment houses – folks who should have been on “our” team – betrayed us and became economic terrorists. 

             The aftermath left us bewildered and angry.  Bank failures.  Layoffs.  Personal and corporate bankruptcies.  Depleted retirement funds and crippled university endowments.

             Civil discourse was rare as the pundit class, followed by legions of letter-to-the-editor writers, flooded the streets. Republicans blamed Clinton and developed apoplexy at the Democratic spending spree that was supposed to right our ship.  Democrats viciously accused the Republicans who controlled all three branches of government for most of the preceding eight years. 

             If there ever was a year when the center did not hold, when the falcon broke from his master’s perch and W.B. Yeats’ beast slouched towards Bethlehem to be born, this was that year.

             We scoff at folks who make victimhood their walking screen saver, yet “victim” seems to be an appropriate adjective to capture the flavor of a year when millions of people who didn’t deserve what happened to them had to suffer through a crisis that thousands of Wharton grads and Harvard MBAs did not foresee, and, to a great extent, caused.

             Last night we shared New Year’s Eve with several friends, including one of the nicest guys I know who was informed in early December that his large law firm was downsizing again. His last day in the office was yesterday, but his mortgage and college tuition payments still come due.  In my perfect world, brains, kindness, honest dealings and a great work ethic should not be rewarded with a pink slip.

             The recession that we label “2009” really started in 2008 and will continue into 2010.  The date change makes a difference only to the extent that the economy is driven by the human psyche.  Our social myth – and a myth with great power – is that January 1 is more than just another day.  It’s a day we set aside for hope.  It’s an opportunity for a new start.  It’s that one moment on the calendar when we feel that our willpower can control our destiny.

             So today, January 1, step with me into 2010.  If you come through the door with me the brass section won’t play and the champagne won’t flow, but I can promise that the sun will come up, and if we wait awhile we’ll soon hear chirping birds.

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