A recent unpublished Court of Appeals opinion – which I think should have been published – illustrates a common evidentiary issue in quasi-judicial proceedings and discusses a not-so-common procedural issue related to appeals from local zoning boards.  It’s the latter, procedural issue for which publication might have been merited.     

            Sidebar: Court of Appeals opinions are either “published” or “unpublished,” although both are publicly issued on the court’s website.  If a case is legally insignificant, advances no law, or if the court, for any number of reasons, wants to limit its holding to the case’s unique facts, it will not “publish” the opinion.  As such, the opinion decides the case but does not become “controlling legal authority.” End Sidebar.

 The Facts

             In Livingston v. Robeson County, Mr. Livingston sought a conditional use permit to develop a “Level IV Group Home” that was “designed to serve a consumer base for the female mentally ill and mentally retarded populations” to provide education, job training, counseling and substance abuse programs.

 

            Three things happened at the Board of Commissioners hearing. One, Mr. Livingston presented substantial evidence that he met the conditional use permit standards.  Two, neighbors presented opinions as to why he should not receive the permit.  And three, the Board sided with opinion testimony rather than evidence and denied the permit.

            A fourth thing happened on appeal.  Mr. Livingston argued that his use was allowed by right and that he didn’t need a conditional use permit at all.

The Decision

            The Court of Appeals correctly refused to hear and decide whether this particular type of group home was allowed in this particular zoning district under this particular county’s table of permitted uses. 

             Appeals in the nature of certiorari are limited to errors that occurred before the board, and the question whether this use was allowed by right was not raised.  Even so, N.C.G.S. 153A-345 provides for initial appeal to the Board of Adjustment if you believe the county zoning administrator incorrectly interprets the zoning ordinance and is wrongfully requiring you to proceed with a conditional use hearing. No such appeal was taken.  Appeal on this issue was properly denied.

 “What Ifs” Are Not Evidence

             Veterans of rezoning public hearings will know what I am talking about here.

             People, in general, are fearful of change.  People, in general, are distrustful of and unsettled by “otherness.”  And when notifications went into the neighborhood that Mr. Livingston wanted a home not for mom, dad, 2 children, a dog and a white picket fence but rather for girls who are “mentally ill,” “mentally retarded,” and who might have drug dependencies, all the neighbors, in general, became fearful, unsettled and distrustful (not to mention angry and emotionally overwrought).

             Veterans of public hearings will also know what I am talking about when neighbors came in raising all sorts of hypothetical, speculative, far flung and fanciful scenarios under the rubric “what if?”  Neighbor Chicken Little obviously feared the sky was falling, and she wanted her government to act on her fears.

             Ms. Cox raised a general fear: what if one of them “escaped?”  Mr. Lee noted that “we’ve got 29 widows in our area” (presumably gleaned from the index of local widows), suggesting “what if” a girl escaped and harmed one of them.  Ms. Freeman noted that “we all have fear” and recounted that a few months ago a 16-year-old killed somebody at a dumpster.  What if they can’t control them she asked. And another person told the tale of how an unnamed officer at an unnamed prison was killed by an unnamed ten-year-old who just wanted to leave, and who then escaped even though there was a twenty foot fence. What if . . . ?

             But there is a problem here.

             Quasi-judicial decisions are based upon evidence, not opinions.  That evidence must be competent (eligible to be heard), material (relevant to the issue) and substantial (sufficient for a reasonable person to use as a basis for his or her decision). “Speculative assertions or mere expressions of opinion about the possible effects of granting a permit are insufficient to support the findings of a quasi-judicial body.”  Also, the expression of “generalized fears” does not constitute a competent basis for denying a permit.

             There are many reasons why opinion evidence can trump evidence at the board level.  Some boards are poorly trained.  Other boards are well trained but don’t care.  This is their county and they decide who leaves the hearing room happy and who leaves unhappy.  And other times the board’s attorney sits silently when he or she has a duty to intervene. 

             The court remanded the issue to Robeson County with an order that it issue Mr. Livingston his conditional use permit.

             Scroll down to read recent posts.  Click on topics of interest in the right hand column for other posts. For email alerts on new posts, click the “sign me up” button above.  And forward to others who might be interested.

             I had long thought that one could only learn integrity in two ways: from good parenting and personal mentoring and from the examples of inspirational people.  To that short list I’m tempted to add opinions from the N.C. Court of Appeals.

             A recent but unpublished opinion (ExperienceOne Homes v. Town of Morrisville) does little to advance our understanding of land use law (it was a cut and dried decision based upon clear facts), but it provides developers a lesson in integrity when dealing with local governments.

             The facts, slightly condensed, are straightforward.

             ExperienceOne Homes was a classic pre-2008 developer whose business model can be summarized as follows: if you build it they will come. [OK, granted that that’s not in the opinion, but you can shoot me if I’m wrong.]

             ExperienceOne owned four lots in Morrisville adjacent to 3 additional lots owned by KCR Investors.  The two companies joined forces to develop 200 townhomes and 3 single family homes on their combined 7 lots.  When they submitted it for “conditional use” approval in early 2008, they submitted a detailed site plan and subdivision plat that showed the location of roads, lot sizes and a clear 200 to 3 ratio of townhomes to single family residences.  In Morrisville (as in most places), conditional use zoning means any individualized conditions approved by the town become part of the zoning district requirements. 

             In this case, one condition (which I take to be a superfluous belt added to britches already held in place by strong suspenders) was that the developers must develop according to the site plan and plat submitted.  Why add this condition?  Because the specific proposal was what the developers told the town they would do, and it was what the town said it found to be acceptable.

             Then the economic tsunami, which we all wish we could have predicted, came crashing down, and the development was placed on hold.

             A year later, in response to the types of “product” that buyers in this new world order would buy and which lenders would lend for, ExperienceOne decided it could build and sell single family homes instead of townhomes.  It returned to the Morrisville town council with the same layout and plan, only it included 202 single family homes on postage stamp lots. 

             For those who analyze cases closely, you will note that Judge McGee found the following fact important enough to quote it verbatim from the record: The developers promised the town there would be “no other major change to the layout of the site.”

             She also quoted at length from the hearing transcript where the Senior Director of Development Services told the council (highly paraphrased): Look folks, these guys have had a horrible time in this economy.  They have financing deadlines, and if you’ll allow us – the planning staff – to approve minor changes administratively, then we’ll go out of our way to work with them on an expedited basis.  For this to happen, all they’ll need to do under our ordinance is to prepare a Flexible Design Option (FDO) request.  And that FDO has to be approved by you, the town council.

             The town council expressed its desire to comply with its staff’s request to be reasonable and to work with and help this developer by authorizing administrative approval of future changes as long as the developer 1) built a bridge to the adjacent subdivision; and 2) the conditions in the previous zoning ordinance and submitted site plan would be met.  And this was done in spite of a unanimous recommendation from the Planning and Zoning Board not to have allowed the development in the first place.

             The express language (which Judge McGee also chose to quote) was “Development . . . must occur in a manner consistent with the provisions of the Townes at Everett Crossing Site Plan and Preliminary Plat . . . provided, however, that minor amendments may be reviewed and approved administratively.

             You be the judge of the FDO application’s consistency.  Instead of the 7 lots, it only included the 4 owned by ExperienceOne because KCR had backed out.  Instead of 202 homes, it proposed 143, and the density per acre had increased, causing a rearrangement of the lots and reduced green space. The road layout had changed, the architectural renderings showed a different product design, and an additional entrance had been added.  The bridge, as you might guess, was not included.

             The developers were told that this new site plan could not and would not be approved because the resolution adopted by the town required consistency of plans and design.  The planning staff tried again to work with the developers, suggesting ways to move forward.

             Sidebar:  I can list several cities and counties in this state (and in Virginia) where the development culture in city hall is “our way or the highway.”  Morrisville, on the other hand, gets a double handful of gold stars in this case for going above the call in trying to assist, rather than impede, a developer in its attempt to move from raw land status to having “for sale” signs in every yard. End sidebar.

             When the FDO came before the town, the town council said to ExperienceOne (employing literary license here): “Dudes. We tried to work with you when times were tough.  You asked us to be flexible and we were. We told you exactly what we would do.  You not only accepted it, but it was essentially your proposal.  Now you’ve gone back on your word, so we deny your request for this completely new development plan.”

             So.  What did ExperienceOne do?  It sued the town, claiming 1) the town went back on its word; 2) the town “forced” it to apply for an FDO; 3) that the town was required to adopt the FDO as proposed; and 4) the town violated its constitutional rights.

             Seriously . . .

             The Court’s opinion is quite simple.  Liberally summarized, it said “The law is ‘A’, the facts are clearly ‘B,’ the town bent over backwards to work with ExperienceOne to reach plan ‘C,’ and the town council has powers of discretion ‘D,’ yet the developers not only went back on their word, they ungratefully sued the town when there were no facts to support their claim.”  The Court cited no case law to support its position, and didn’t need to.  It just said ExperienceOne has no case.

             Under these facts, the developers’ claim that the town violated their constitutional rights was not a 90-yard Hail Mary pass to the end zone.  It was a 90 mile pass to the next stadium. 

             The lesson: There is a high probability that this case will never be cited by a future court.  It does, as I said, provide a valuable lesson in integrity.  Judge McGee never used that term, nor did she say (or do I say) that the developers lacked integrity.  However, the fact recitation and the holding return again and again to the fact that there was a bargain that the developers accepted then tried to change to their benefit.  Basic facts like this can color a court’s interpretation of a case.

             And another set of facts reaches out from between the sentences.  The developers were victims of forces beyond their control, and the town recognized it.  Rather than being arrogant and rigid, the town stuck out its hand and offered to help the developers get up off the ground.  The town clearly wore a white hat.  The developers, on the other hand, did not.  Judges are human, and most humans, all else being equal, try to do the right thing.

             How do we tell whose side is right and just?  Why, the white hat, of course.

 Humorous Comment to Readers

             WordPress, my blog’s host, tells me where my readers are coming from on any given day I choose to look.  Not who they are, but their country of origin. I am sure, for example, that if I looked today, I would have nothing but hits from the USA for the past week.

             I laughed, however, after publishing a post April 22nd titled “Learning How to Kill People for Sport and Entertainment,” a commentary on Cumberland County’s decision to classify a training ground for mercenary soldiers as an amusement park.  I suddenly had readers from Paraguay, Portugal, Saudi Arabia, Pakistan and about 20 other countries.  No doubt somebody in a beige cubicle in a nondescript federal agency noticed the traffic and now there is a file in D.C. with my name on it.

             If so, at least it didn’t stop me from recently boarding an overseas flight.

             Scroll down to read recent posts.  Click on topics of interest in the right hand column for other posts. For email alerts on new posts, click the “sign me up” button above.  And forward to others who might be interested.

            When I traveled through Europe by train 30 years ago I marveled at how cities seemed to stop and start at defined points on the broad landscape, in stark contrast to American cities that bleed forever into the rural (or at least “non-urban”) periphery.

             Thirty years later I marvel again as I travel by car through small Tuscan towns and villages.  One moment you are surrounded by wheat and barley fields, olive groves and vineyards, but when the sign says you’ve entered the town you’ve truly entered the town. 

             With the exception of Rome and Florence and a few other larger cities, you don’t ease into the urban area.  You move from countryside to developed village like you would move from a kitchen to your garage.  You’re in one or the other, but never between.

             I’m sure someone here can explain it all to me, and I’m confident that if I had read the right book before I came (hint: it would not have Fodor’s, Frommer’s or Steves in the title) I would understand both the cultural and regulatory mechanisms behind these lines of urban/rural separation.

             Everyone  has pet peeves, and #78 on my growing list is the American who knows and cares nothing about rural life, who lives an otherwise entirely urban existence, yet who insists on filling the rural landscape with subdivisions that are completely divorced from and visually incongruous with farmlands and fields.  Pet peeve #79 is the same American claiming that he lives “out in the country.”

             In Tuscany you can see for miles from most vantage points, across the fields and the vineyards, and all the scattered houses and manors you see appear to preside over the immediately surrounding fields and vineyards.  There is something about this pattern that seems “right” in an absolute sense that needs no explanation or defense, just as one need not defend Divinity or the progression of History.

             Such a simple, almost black and white, construct doesn’t mean that the American rural landscape should not support quarries where the rock exists or industry where interstate interchanges create their own distinct human-to-land relationships.  But the construct does imply a “rule” that Americans seem to honor only in the breach, that we assume cities themselves are bad and physical escape into surrounding suburbia is a form of triumph.

             The European model, however, shows that boundaries can exist.  That cities can be cities and countryside can be countryside, and we don’t have to chew up the spaces between them with subdivisions if we can find ways to make the land profitable, something the Italians can perhaps more easily do because the world continues to buy its wines and its cheeses and olive oils, and because tourists with money come here by the thousands to experience these foods and to see first hand the results of a renaissance of human mind and spirit.

             We’re staying this week at Santo Pietro, a renovated 13th century convent outside Pienza.  It’s been redesigned for travelers, but the design incorporates the 72 acre farm that came with it.  Now owned by Italian brothers who spent early years in the U.S., Santo Pietro has vineyards and olive groves and produces two wines and wonderful olive oil under its own label.  The jams and jellies we’ve eaten are its own, and we’ve actually watched the chef walk to the garden to pick more lettuce when we ordered a salad.

             When he’s not providing a personal concierge service to one of his guests about places to visit, owner/manager Giuseppe Savignano enjoys telling you about the farm that he and his brother continue to build – a farm surrounded by other working farms that you can see as you sit on the veranda looking out at Pienza about three miles away.

             Why can’t we – “we” in the inclusive American sense – do this?  Why do we insist upon paving our fields and destroying the old in favor of a McDonald’s or a Super 8?  The fact that we prefer to do this is, in a large sense, what defines us as American. 

             There are other factors at work and it would take a book to explain, but tonight I prefer to spend my time sitting on a veranda overlooking miles of countryside while I enjoy one of Santo Pietro’s 5-star meals whose olive oil and vegetables and wine are more than local.  They are part of this farm.  They are part of this home.

             Scroll down to read recent posts.  Click on topics of interest in the right hand column for other posts. For email alerts on new posts, click the “sign me up” button above.  And forward to others who might be interested.

When it comes to the numerous principles of New Urbanism I wander variously between McCauley Culkin’s “Yeesssss!!!!!” and Jerry Seinfeld’s “Yeah, yeah, yada yada yada.” But after a few days of exploring Italian villages I’ve developed a firmer conviction that a community is not truly a community unless it has a public place where people can gather as a community, for a community purpose, and the private rooms of country clubs and pool halls do not count.

To a great extent, the ancient Greek agora, the 11th century Italian village piazza, and the 18th century American town square are functional equivalents, fixed places around which towns can organize commerce, a place where information is shared, a place for public rituals from hangings to holidays, and a fully democratized location for social gatherings.

I happened to have landed in the Tuscan town of Castelnuovo di Garfagnana the night before its weekly “market” where more than a hundred peddlers sold everything from locally grown produce to Chinese-made cutlery.

But if you looked just beyond the tables of wares, the heart of the market was in the many impromptu gatherings and animated conversations among locals who, instead of rushing to an office, ambled into town.

Most obvious were the groups of men in their 70’s and 80’s, men who perhaps remember “the War,” even if they were too young to have carried a rifle, and who, in their own ways, are bridging divergent historical eras that can only touch in the musings and memories of men and women who gather elbow-to-elbow and chair-to-chair to share in the collective moment of a space that belongs to no one and yet belongs to everyone.

What has happened to the American town square, that piece of the urban jigsaw puzzle that at one time held all of our districts and neighborhoods together — the centripetal force that made all of us part of a locale with a common identity, common problems and a common future that we planned at common forums?

Both as traveler and as attorney whose clients reach into every expected and unexpected corner of the state, I think I have visited every North Carolina community whose population exceeds 5,000 people and many that are much smaller. I can only think of fewer than a handful of towns with a prominent and functional and central public space.

Yes, our Harris-Teeters and our Biscuitvilles and our Main Streets (to the extent that they have any vibrancy not sucked out by the malls and strips on the bypass) serve as places to bump into someone, but it’s not the same. Compared to the older villages of an older country, we have become more atomized and less connected to those with whom we share geographic commonality.

In the 21st century, it’s easier to connect electronically with a friend in Seattle than to speak with someone in the same public space, and you only have to visit Starbucks once to observe several internet patrons connected in a thousand ways to the universe but disconnected if not wholly oblivious to the iPad user at the next table.

I’m certainly not the first person to comment on America’s love affair with fast highways and expansive, large-lot, porchless, suburban subdivisions surrounding our urban waistlines, but there is a clarity made possible by visual contrast that enables the American traveler to mourn the loss of the metaphorical if not the actual Norman Rockwellian American community in towns whose organizing principle was the interstate highway.

Perhaps it is fitting that I scratched out my draft of this post while sitting in a public square of the small town of Pienza. Although the human interactions in front of me emanate more from tourists than locals, there is no doubt — at least in my mind — that the public square itself, as urban artifact, draws folks in and creates a sense, however temporary, of common purpose.

When it comes to the amoebic growth and prosaic functionality of the urban civitas, I am, to put it bluntly, a nerd.  I was last in Florence in 1982, the same week Italy won the World Cup in a sport I could barely play and certainly didn’t follow, but it didn’t stop me from climbing onto the base of a public monument to lead the crowd below in chants of “Uno, Due, Tre,” the number of goals scored by the Italian team.

Thirty years ago I did the obligatory museum crawl both to justify to myself and my parents this use of my own savings and because, well, I didn’t have enough disposable income to be a shopper.

But this trip I’ve been less interested in art than the city’s multi-modal streets, its public squares, its trash disposal and even its sewer systems.

I’ve tried to determine through keen observation, much like a mechanic reverse engineers a machine, how the Florentine government uses zoning to control the city’s flavor, culture and tourist appeal.  There’s obviously a stringent sign ordinance and multiple use restrictions to keep out the neon lights of a China Town and the cancerous spread of yet another restaurant with golden arches.

What I haven’t figured out (yet) is whether the ordinances are administered by the Ministry of Zoning, the Ministry of Culture, the Ministry of Tourism, or the Ministry of Urban Chaos.

Florence, like all large cities, has its graffiti and its immigrants, its street musicians and its panhandlers, and its tourists and its pigeons (in some roughly equivalent numbers).  But for the multi-square mile historical Florence, it has something most American cities lack — a unique personality.  Florence has an identity card with “Florence” stamped across its forehead at every corner and piazza.

Florence didn’t just exist in the Renaissance —  it was the Renaissance, defining the era’s art and architecture, an historical experiment made possible by the historic collision of government, church, trade guilds and private wealth existing in a tense, incestuous equilibrium where a culture’s buildings and art were perceived as wise public investments rather than wasteful and frivolous expenses.

But now, Florence is a shadow of its former self, still living in a history it wrote then abandoned.  Five hundred years later, the rest of us aren’t vistors from other countries as much as we are time travelers, each trying to step back into a century that was but no longer is.

I came here bearing a heavy prejudice.  Not against Italians, but in favor of Italians.  That Italians, like all Europeans, design their cities smarter.  That Europeans design their spaces more efficiently.

But such is not always the case.  Newer American cities have an intentionality that is better suited to modern life.  Florence, like most Italian cities and towns, is built on streets and squares that were built on top of streets and squares designed to serve Roman armies and medieval ox carts.

Today those streets barely accommodate small cars, and then in the remaining space that doesn’t exist pedestrians are squeezed onto two foot sidewalks punctuated by jutting windows and drainpipes.  Its not that I dis-appreciate the full blown charm of medieval Italian towns, and we have explored many.  I guess my point, if I need one here, is that Chicago’s grid system and Washington’s spoke system serve 21st century life in a practical way that is only possible when a city is 200 rather than 2,000 years old.

But there is another and more important point to make, and Florence is a benissimo example.

Cities can be mediocre and cities can be great, and greatness, like Italian pasta with pesto, has a time-tested recipe.

If greatness was measured by a city’s military power or industrial strength, then we would teach the lessons of ancient Sparta, Leningrad, and even Cleveland.  But instead we measure greatness by a city’s artists, its philosophers, its universities and its architectural masterpieces — all the lessons of ancient Athens, Renaissance Florence, and Paris of the 18th and 19th centuries.  And all of these accomplishments  are possible when governments support or tolerate artistic endeavors and when monied interests, for ego or profit, have visions of greatness beyond the ordinary and far in excess of mere necessity.

As I look at America from a rickety chair in front of an indecipherable keyboard in an Italian internet café in a city that was, for 250 years, the yardstick of greatness, I fear that our own historic moment has come and gone, paralyzed as we are by fringe political elements who demean education and critical thinking as “elite” and therefore unAmerican and who decry any use of the public purse for a purpose other than street maintenance and trash pickup in their own neighborhoods as a waste.

I feel like T.S. Eliot’s Prufrock who lamented “I have seen the moment of my greatness flicker.”  That small-minded Philistines, those who would not recognize a bold idea or a great public project, now define the American Zeitgeist.

As an attorney, I spend my professional life telling those who need to hear me “trust me, I’m right.”  But as the author of the previous two paragraphs, I close with the thought that I think I’m right, even as I hope that I am wrong.

            If the headline offends you, well, it offends me too.  It’s also offensive when governmental actions move from plausible defense to citizen abuse in defiance of court order and honest dealings, but that’s what just happened in Cumberland County.

             On March 19, 2012, I published a post titled “Training School Kids to be Mercenary Soldiers which chronicled Cumberland County’s attempt to categorize a 1000 acre training camp for private armies as though it were an elementary school.

             In that post I described the training camp, owned by a company called TigerSwan, as follows:

             TigerSwan is a private company that trains “warrior combatives” and mentors “tomorrow’s soldiers.”  It leased 1,000 acres in Cumberland County and filed a site plan that included multiple firing ranges (with designated 2 ½   mile “surface danger zones” to protect neighbors from ricocheting bullets) and other indoor and outdoor facilities to train private combatives in convoy security, urban warfare in a “mock village,” heavy weaponry, helicopter assaults and other similar activities.

             In addition to the use of explosives and helicopters (sometimes at night), the company estimated that it would fire at least 15 million rounds of ammunition each year, at least some of them from a 60’ sniper tower.

             Tigerswan’s motto, which has been prominently displayed on local billboards, is “FOR THOSE WHO HAVE HUNTED ARMED MEN . . . TRAINING WILL NEVER BE THE SAME.”

             The North Carolina Court of Appeals held that this use – described by the company itself in language similar to the above – did not fit the definition of a “school” as “school” was defined in the Cumberland zoning ordinance.  Importantly, the zoning administrator’s decision to categorize it as a school, although tough to defend, could at least be reasonably defended.

             But after the court’s decision the company was not shut down and was allowed to continue its operations. Although its attorneys were filing briefs with the N.C. Supreme Court claiming that the use was, in fact, a school, the Court of Appeals decision is final until overturned.  In other words, further appeal does not operate as a temporary stay of the decision.

 The New Interpretation

             Now, the same zoning administrator who was convinced that this training camp for “today’s private armies” is a “school” has issued the company a new permit that classifies it as “Outdoor Recreation/Amusement.”

             I am not making this up.

             The descriptions of these two categories from the Cumberland Zoning Ordinance are below.  Both indicate that the intent for uses classified as “recreation” is for the uses that you and I and every other reasonable person consider to be “recreation.”

  Recreation, Outdoor: An area free of buildings except for restrooms, dressing rooms, equipment storage, maintenance buildings, open-air pavilions and similar structures used primarily for recreational activities.

 Recreation, Outdoor (with mechanized vehicle operations): An area or establishment, which requires the use of motors or engines for the operation of equipment or participation in the activity.  This definition includes but is not limited to go-cart tracks, bicycle motocross (BMX) courses and the like.  This definition does not include golf courses (golf carts) or other low impact motorized activities or vehicles. (Emphasis added).

            Thus, the zoning administrator has determined that TigerSwan’s activities, which are described above, fit into these categories as “outdoor recreation/amusement.”

             There are sanitized words one could use to describe the administrator’s logic, such as “ill-conceived” and “misguided” but these terms would miss the target entirely.  I prefer stupid and arrogant.  “Stupid” should be apparent on its face when you read the definitions above.  There is no rational argument to support this new classification.  If you think you can find one, meet me in the public debate chamber.

             It’s arrogant because the county staff has taken an opposite position in current court filings, and because the decision displays an air of disdain for both the Court’s decision and the ordinary taxpaying citizens who rely upon county employees to do their jobs with some semblance of honorable intention.

             Although my clients tend to be developers and governments, I litigate these types of cases across the state all the time.  I know how expensive they are and how difficult it is for ordinary citizens to hire lawyers.  When a governmental employee toys with the county’s citizens as though it is a game, forcing the plaintiffs to dig even deeper into their savings and retirements to prepare for a second appeal over something as facially ridiculous as this, someone in charge of that employee should be embarrassed and offended and take action.

             Let me put this into a clearer perspective.  A few years ago I spread a map of North Carolina across my desk and counted the number of counties and municipalities in which I had litigated or handled some sort of land use or environmental case.  The number was slightly north of 150 and it is even higher today.  After 27 years and 150+ jurisdictions, I cannot recall a routine zoning interpretation that is so abusive in its intellectual dishonesty.

             In my opinion, if the plaintiffs in this case are forced to sue again, newly enacted N.C.G.S. 6-21.7 would allow them to be awarded attorneys’ fees.  Further, if the plaintiffs can establish a property right, and if this were found to be a knowing and intentional violation of those citizens’ due process rights, then the zoning administrator individually, as well as the county, could be liable for attorneys’ fees and damages under 42 U.S.C. Sec. 1983 and 1988.  Although the latter is more difficult for a plaintiff to establish, my gut and my experience tell me that a public records request – plus a forensic search of all electronic communications to the administrator and other officials – would provide an embarrassing amount of legal ammunition.

             In my world – as in TigerSwan’s – it doesn’t take but one bullet properly placed to eliminate an opponent.  I’m proud to state that I fire my bullets not from a gun but from the small nib of a pen.

             Scroll down to read recent posts.  Click on topics of interest in the right hand column for other posts. For email alerts on new posts, click the “sign me up” button above.  And forward to others who might be interested.

             In land use, few things merit a news “flash.”  However, you should know that in a statement signed by Justice Barbara Jackson the N.C. Supreme Court decided last Friday that it would accept for review a case I recently blogged about involving the vaguely worded and expansive statutory powers of the N.C. Department of Transportation.  

             This case is critical for those of us in the land development business – whether we work for developers or for governments – because road networks and road improvements and driveway permits are involved in almost every development in the state.  The NCDOT has purposes and mandates that make North Carolina a better state, that provide infrastructure that makes growth possible, and that protect citizens from unwise developments. 

             But the NCDOT does not have unbridled power.  Nor do we want a single agency to have discretionary powers that are, for practical purposes, unchecked.

             If the decision is broadly written, this case could delineate what the NCDOT’s statutory powers are and are not.  If narrowly written, the case’s impact could be limited to the parties and controversy before the Court.  In either case, few issues are more important to a democratic society than the limits we place on governmental powers.

             For readers who aren’t attorneys, here’s all you need to know about getting a case to the state Supreme Court: it’s hard at best, sometime impossible, and always expensive.

             When a case is completed at the trial court level, the losing party can appeal the decision to the N.C. Court of Appeals.  Although I disagree with the Court of Appeals on occasion, you should know that North Carolina has historically attracted talented and bright attorneys to this Court.  If the three-judge panel decides a case by a 2-1 vote, then the losing party can automatically appeal yet again to the state Supreme Court.

             But if the three-judge panel is unanimous, then you have to petition the high court to hear the case, and it only accepts a very small percentage of such requests.

             As soon as this case is decided, I’ll provide the insights and commentary here.

 

            Scroll down to read recent posts.  Click on topics of interest in the right hand column for other posts. For email alerts on new posts, click the “sign me up” button above.  And forward to others who might be interested.

            Boring title, I know, but in land use this is big stuff, especially considering that both topics came out of a recent N.C. Supreme Court case. Let’s look at both topics, discuss their relevancy and review how the opinion was written.

 The Facts

             Two weeks ago the N.C. Supreme Court published one of its rare land use opinions in Wally v. City of Kannapolis.

             Wally involved nothing more than a rezoning challenge.  There you go.  That’s really the only background fact you need. A developer wanted it, and neighbors didn’t.  The neighbors sued.

             However, in a lawsuit you must have a cause of action – a legal theory upon which you can obtain redress.  The Wally plaintiffs alleged two things: one, the decision involved “spot zoning;” and two, the city failed to adopt a “consistency statement.”  I’ll provide the subcategory facts below.

 Spot Zoning

             As you can see from the topics in the right hand column I have a category dedicated to “spot zoning.”  As I said in a previous blog post:

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

            And then, in exasperation with the Court’s “single owner” standard, I said this: “Zoning is not about title.  Zoning is about use.

            I was ecstatic that the state Supreme Court accepted this spot zoning case, but disappointed that it punted before carrying the ball all the way into the end zone.  But, to continue the football analogy, I’m happy for the yardage we got.

            In fact, Justice Timmons-Goodson, who wrote the Wally opinion, said this: “Zoning ordinances regulate land use, not ownership.”

            Attorneys can’t say this in court, but in this blog I can say “See? I told you.”

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

            Side bar: I write this blog to provide case commentary rather than case descriptions. It’s a problem that Court of Appeals panels are obligated to follow precedent established by an earlier and errant N.C. Supreme Court decision, even when the earlier decision facially displays jurisprudential stupidity. End side bar.

            Unfortunately, the Wally court concluded that because plaintiffs prevailed on their other cause of action (e.g. the consistency statement) it was not necessary to reach a decision on spot zoning.  But even without providing a decision per se, it discussed spot zoning anyway, giving an attorney in a future case the opportunity to persuade the Court of Appeals that it must follow Wally and get away from this focus on title rather than land use relationships.

Consistency Statements

            In 2005 the legislature amended the zoning statutes to require cities and counties to adopt what are called “consistency statements” when adopting a rezoning ordinance.  The consistency statement requires the elected body to adopt a statement explaining how the rezoning is consistent with the comprehensive plan and reasonable and in the public interest.

            What I didn’t know until Wally came out – which coincidently was while I was writing a Court of Appeals brief in a case involving a county’s adoption of a consistency statement – is that the consistency requirements for cities and counties are different.

            Wondering why?  It’s because every time a law is written there are WAY too many cooks in the legislative kitchen.  And precisely because the kitchen is so crowded and noisy, what sometimes starts as a noble and logical idea becomes an illogical or inexplicable statute.

            The consistency statement requirement for cities (NCGS 160A-383) reads as follows:

            “When adopting or rejecting any zoning amendment, the governing board shall also approve a statement describing whether its action is consistent with an adopted comprehensive plan and any other officially adopted plan that is applicable, and briefly explaining why the board considers the action taken to be reasonable and in the public interest. That statement is not subject to judicial review.”

            But the county requirement (NCGS 153A-341) starts off by saying “Prior to adopting or rejecting . . .” and it does not contain the language “and any other officially adopted plan.” (“When” versus “prior to” might seem like an innocuous distinction, but the interpretation of a statute turns on such points).

The Defense that Didn’t Work

            Kannapolis argued, essentially, that its staff report contained some consistency language and that, implicitly, because the staff’s report was before the board the staff’s opinion was therefore implicitly contained within the ordinance.  Kannapolis also argued that the court had no authority to look over its shoulder because the statement “is not subject to judicial review.”

            The Supreme Court was not impressed.  It is the content of the statement that is not subject to review. However, whether the city adopted a statement in the first place is subject to judicial review, and the Court found that having a statement written by staff somewhere in the same room didn’t count as adopting a statement.  The statute requires an elected body to adopt a statement each time it adopts a rezoning ordinance.

            Back to the appellate brief I mentioned a few paragraphs back.  I’m in litigation now representing a county in the eastern part of North Carolina that has been sued by the City of Wilson.  Wilson alleges, among other things, that the county failed to adopt a zoning consistency statement in the proper form (i.e. “prior to”).  Wilson, however, never adopts consistency statements, a point my client pointed out to the Court at the trial level.

            Wilson thought it could outsmart the legislature by adopting a single ordinance in 2006 that proclaimed all future rezonings will be deemed by law to be reasonable and in the public interest and consistent with whatever plans exist at the time.

            After Wally, every rezoning adopted by the City of Wilson can be overturned on that point alone. When the legislature says you must do something, it means that you really do have to do it.

            Scroll down to read recent posts.  Click on topics of interest in the right hand column for other posts. For email alerts on new posts, click the “sign me up” button above.  And forward to others who might be interested.

             This is a news flash post.  This afternoon the Raleigh News & Observer posted an online article stating that Superior Court Judge Shannon Joseph struck down as unconstitutional several key sections of the recently enacted legislation that overhauled and neutered North Carolina municipalities’ ability to annex urbanized areas adjoining municipal boundaries.

              The debates and clashes over annexation persisted for years and resulted in one of the most cumbersome and labyrinthine municipal statutes enacted in years.

             To read the article, click here.  To read my previous commentary on this misguided legislation, you’ll find it here: Annexation — Some New and Different Perspectives.

             I have not heard the judge describe the decision, nor have I read the pleadings or the judgment.  My information comes entirely – at this point – from the N&O.  I have learned in law that you should never promise that a certain result will ensue.  But as I sit here I’m considering how high a wager I’ll make that within 30 days of the judgment’s entry this case will be appealed to the Court of Appeals.

            According to the N&O, the problem with the law is that 60 percent of residents living in an annexed area could, through petition, nullify the action.  However, non-resident property owners could “vote,” but resident renters could not.

             Scroll down to read recent posts.  Click on topics of interest in the right hand column for other posts. For email alerts on new posts, click the “sign me up” button above.  And forward to others who might be interested.

             In a classic Andy Griffith “don’t that beat everything” moment, Cumberland County had to decide if a facility for training military, law enforcement and mercenary soldiers – complete with multiple firing ranges, attack helicopters and simulated urban warfare settings – was sufficiently similar to a private elementary or secondary school so that the facility would be allowed by right in an agricultural district.  The zoning administrator decided that the facility was similar enough for him, and he approved the site plan.

             As humorist Dave Barry sometimes has to add, “I am not making this up.”

 Facts

             Tigerswan is a private company that trains “warrior combatives” and mentors “tomorrow’s soldiers.”  It leased 1,000 acres in Cumberland County and filed a site plan that included multiple firing ranges (with designated 2 ½   mile “surface danger zones” to protect neighbors from ricocheting bullets) and other indoor and outdoor facilities to train private combatives in convoy security, urban warfare in a “mock village,” heavy weaponry, helicopter assaults and other similar activities.

             In addition to the use of explosives and helicopters (sometimes at night), the company estimated that it would fire at least 15 million rounds of ammunition each year, at least some of them from a 60’ sniper tower.

             Tigerswan’s motto, which has been prominently displayed on local billboards, is “FOR THOSE WHO HAVE HUNTED ARMED MEN . . . TRAINING WILL NEVER BE THE SAME.”

             Cumberland County’s Zoning Ordinance provides that one of the uses allowed in the A1 Agricultural district is “SCHOOLS, public, private, elementary or secondary.”  The zoning administrator reasoned that this facility fell into the category of “private school.”

 The Appeal

             When a zoning administrator interprets the local ordinance, his or her decision is appealable to the Board of Adjustment.  Several neighbors appealed his interpretation saying, essentially, that “SCHOOLS” obviously applied to the kinds of schools listed and not this type of military training ground.  The board voted 3-2 to reverse.  However, Boards of Adjustment are odd creatures in that all decisions must be by 4/5ths vote, so the decision was actually affirmed.

             The neighbors then appealed the Board of Adjustment’s decision to superior court under what is called a “writ of certiorari.” On certiorari review, a judge reviews a board’s decisions for errors of law and determines whether there is sufficient evidence to support the board’s findings.

             The trial court affirmed the board’s decision, so the neighbors appealed to the Court of Appeals, which reversed the trial court in Fort v. County of Cumberland and Tigerswan.

 What the Court Said

            Judge Robert C. Hunter’s opinion is an excellent primer in the laws governing interpretations of ordinances.

             First, Judge Hunter correctly noted that courts are not obligated to defer to boards of adjustment on ordinance interpretations, which are questions of law.  Legal interpretations are conducted under what is called de novo review where a court may freely substitute its judgment. On the other hand, courts are required to defer to the board on questions of fact.  Not rubber stamp, but defer.

             Second, the basic rule for deciphering the meaning of an ordinance or statute is the governing body’s intent. And the Cumberland zoning ordinance described the “general intent” of the A1 Agricultural district as agricultural uses “free from most private urban development” except for large lot residential uses and a “limited list of commercial uses.” Plus, Judge Hunter noted, the title of the district itself (“Agricultural”) provides yet another clue as to how the “school” category should be interpreted.

             Within that framework (plus a couple other canons of construction) the Court decided that Tigerswan’s facility was not the type of use intended when the drafters of the ordinance allowed “private schools” by right in agricultural districts.

Tigerswan’s Defense

             Tigerswan’s brief included a footnote which called foul because its opponents actually used information from Tigerswan’s own promotional materials to describe what Tigerswan did, thereby sensationalizing what Tigerswan itself already had sensationalized.  Tigerswan, instead, wanted the court to focus on the fact that it would also open its doors to teach children first aid and leadership skills.

             At most, such activities – if they in fact would occur – are what we call “ancillary uses.”

 Standing

            The county and Tigerswan objected to the petition being filed, claiming that petitioners lacked standing.

            Before a court has jurisdiction, the persons bringing the action must be sufficiently interested in the outcome to be accorded the right of judicial review.  In North Carolina, only those who are “aggrieved” and who will sustain “special damages” have standing to appeal a quasi-judicial land use decision.

            The petitioners claimed that their property values would be lowered, that all the lead from the bullets would contaminate their wells, that they were in physical danger from straying bullets, and that the noise alone would grant them standing.

            In years past, N.C. courts issued many opinions stating, essentially, that you were only aggrieved when you used certain magic words to demonstrate loss of property value.  This position, of course, was ridiculous when some of the key findings related to harm in quasi-judicial land use decisions were unrelated to property value but instead pertained to danger to health and safety and harmony with the surrounding area.

            Fortunately, the N.C. Supreme Court ended this wayward analysis in 2008 with Mangum v. Bd. of Adjustment.  Mangum involved an appeal of a BOA decision related to a topless bar.  The court found that other harms (such as water runoff, parking, etc.) could also establish standing.

            Side bar: The attorney who lost Mangum (even though she was correct as to what the law had been) was Robin Currin.  However, Ms. Currin also represented petitioners in this case, and Judge Hunter cited Mangum as the basis for finding her clients had standing here. What goes around comes around.  End side bar.

The Future

            According to a February 16 news article, there are hints of a re-do by changing the zoning ordinance to allow military training facilities in A1 Agricultural districts.  Tigerswan is also making the issue a question of jobs and income, not land use.

            In the meantime, last week Tigerswan filed a Petition for Discretionary Review with the N.C. Supreme Court.  If the Court of Appeals decision had been split, appeal is automatic if requested.  However, if the opinion is unanimous, appeal to the N.C. Supreme Court is by permission.  I predict that the Supreme Court will refuse to hear the case, allowing the Court of Appeals decision to stand.

            Scroll down to read recent posts.  Click on topics of interest in the right hand column for other posts. For email alerts on new posts, click the “sign me up” button above.  And forward to others who might be interested.