A recent Court of Appeals case (High Rock Lake Partners v. NCDOT) illustrates the vulnerable position property owners can find themselves in when dealing with railroads – who answer seemingly to nobody – and the NCDOT, whose statutory powers are expansive, broadly defined, and not subject to easily available or enumerated limitations.

 The Real Facts

             Sidebar: “Real facts” is not a shorthand way of saying the facts outlined in the opinion are wrong.  Rather, it’s a way of saying I’m providing some color and interpretive background to help you understand the context and the backstory.  End sidebar.

             This case began in 2005 at the height of the go-go 00’s when land “values” appreciated at unsustainable rates and waterfront lots appreciated faster than that. High Rock Lake Partners had just bought a gorgeous 188 acres on a peninsula in High Rock Lake that was separated from the world by railroad tracks.  (As a visual, open your hand and hold it palm downward.  Think of your fingers as a broad peninsula with a railroad track running perpendicular across your hand at the knuckles.  You couldn’t get from your fingers (the peninsula) to your wrist without crossing the track at your knuckles).

             If you wanted to access the peninsula in a car, you would get on SR1135 and cross the tracks at a place just before the railroad widened into about 12 rows of horizontal tracks. (Or to maintain the same mental image, you would crawl into your car at your wrist, drive down SR1135 across the back of your hand, cross the tracks at your knuckles and onto the finger peninsula).

             On the peninsula side of the tracks, SR1135 looks more like an ancient Roman cartway than a state highway for about ¼ mile before it reaches and penetrates the lower portion of the peninsula where the developer intended to build 60 homes.

             The developer assumed that the necessary NCDOT-issued driveway permits would be forthcoming either in some straightforward fashion, or, at the least, with some reasonable conditions.  Developers typically make this determination before acquiring title during a phase called “due diligence.”  The assumption was wrong.  But that doesn’t mean the DOT or railroad are in the right.

             More to the point, the developer assumed that NCDOT would have no issue with allowing the developer to improve the portion of SR 1135 that enters the development and using 1135 as an entrance. (As another visual, think of 1135 going down your ring finger as a small, unimproved road from your big knuckle to your middle knuckle, where you would enter the development.  THAT is the point where the development would enter the state road – not ¼ mile away where 1135 crosses the railroad.  There were no concerns raised about safety or design related to the location where the development entered SR1135.  And a driveway permit is issued for that specific connection to be made.

 Getting the Driveway Permit

             NCDOT controls all access points onto state roads.  You cannot create a new entrance without obtaining a “driveway permit.”  Driveway permits can be issued with conditions.

             In this case, there seems to have been no dispute that the driveway connection itself would not be problematic.  The rub was that NCDOT believed the “at grade crossing” ¼ mile from the subdivision entrance had to be widened.

             NCDOT also required, as a condition of obtaining the permit, that the developer get the approval of two different but related third parties – Norfolk Southern, as the operating railroad and NC Railroad, as the owning railroad – thereby outsourcing any approval authority NCDOT had and allowing third parties with no duties to the public to control state highway access.  NCDOT would not assist the developer in acquiring rights to cross the railroad on the state’s right-of-way.

             Norfolk Southern replied, saying it would oppose any changes to the at-grade crossing but would consider conditioning its approval on the developer providing “grade separation.”

             “Grade separation” is railroad-speak for a tunnel or bridge.  And the estimated cost to build a bridge was $3 million (a fact learned not from the opinion but from the developer’s counsel, an attorney I’m currently opposite in a Rutherford County case).

             If you didn’t know it already, here’s something you won’t learn from reading the opinion:  even in the go-go 00’s, there was no way a developer could acquire the land, build the infrastructure, create only 60 perkable lots and sell them for an amount that would pay for a $3 million bridge.  Thus, Norfolk Southern had, for all practical purposes, vetoed a landowner’s access to a state road.

             So High Rock Lake Partners challenged the driveway permit by appealing the permit conditions to an entity called the DOT Driveway Appeals Committee.  The committee upheld the division engineer, and High Rock Lake Partners went to court.

 The Challenge

             The developer/owner claimed that once NCDOT determined that the driveway entrance itself could safely be made, NCDOT lacked the statutory authority to require the developer to make improvements to a railroad/state road crossing ¼ mile up the road and to place the burden of third party approval on the developer.

             The issue before the court, therefore, was whether NCDOT exceeded its statutory authority.  And the point of this post is that NCDOT’s authority is already quite broad and just got broader.

             As a general proposition, state agencies can only exercise the powers delegated to them by the General Assembly.  And as a general canon of statutory construction, when there are two applicable statutes – one general and one specific – the specific statute controls over the general. 

             The developer pointed out that N.C. Gen. Stat. §136-18(29) (the statute that allows NCDOT to establish its own policies and adopt rules concerning driveway connections and the conditions that can be imposed) was not written broadly enough to encompass this situation where third parties are allowed to require $3 million in off-site improvements.  The developer broke down each phrase of this statute and pointed out that none of them applied.

             The court’s reply, boiled to its essence, was that the developer was right about the specific powers enumerated in N.C. Gen. Stat. §136-18(29).  It did not govern this situation.  But instead of finding for the developer the court determined that the appropriate way to resolve the issue was to look to the “general powers” sections in the statute. (And general powers are always broadly defined).

             One of those general powers is listed in N.C. Gen. Stat. §136-93 (“No opening . . . shall be made in any State Road . . . except with . . . a written permit from [NCDOT] or its duly authorized officers, who shall exercise complete and permanent control over such roads and highways . . .”

             “Complete . . . control.”  This stings.  Instead of looking for a way to carefully delineate the power of one of the state’s largest agencies, the court found, instead, a way to bless the agency’s unbridled power.  And the italicized emphasis in the quote above?  It’s not mine.  It was done by the court.

             Sidebar:  In 26 years of practicing law I’ve seen governmental power abused in many ways.  Some cities and some state agencies seem to breed a culture of arrogance and brute-power decision making.  Other agencies master the art of passive aggressive “approvals” that essentially deny use.  But it would not be fair to NCDOT if I didn’t add that, in my experience throughout many of the state’s DOT divisions, this particular agency has a long history of collaborative approvals and reasonable cooperation with the private sector.  In spite of what seems to be unbridled power by statute, the best check is sometimes the department’s own culture.  Describing NCDOT as having a “culture of humility” certainly overstates the case, but the flavor of the phrase is not inappropriate. End sidebar.

 What’s next for High Rock Lake Partners?

             It’s not clear.  The company has petitioned the N.C. Supreme Court for “discretionary review.” (When a Court of Appeals panel of three judges renders a unanimous opinion, you must seek the higher court’s permission to hear the case).

             NCDOT has filed a response alleging that the developer has failed to show it meets any of the bases for granting review (e.g. matter of significant public interest, conflicting Court of Appeals decisions, etc.). NCDOT also bases its response on the principles established in one of my cases (Town of Spruce Pine v. Avery County).

             Interestingly, NCDOT points out to the court what I pointed out several paragraphs ago, that the developer made assumptions about getting the permit and, well, made a mistake by buying the land before determining whether a driveway permit would be feasible.  But a developer’s assumption or mistake should not have any bearing on a court’s interpretation of an agency’s authority.

             When one case raises issues concerning the power of railroads and the authority of NCDOT to control access to the state’s highway system in the context of citizens’ use of land, the matter should be considered one of significant public interest.  I hope the high court grants certiorari.  I’ll keep my eyes peeled and let you know what the N.C. Supreme Court does.

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             In my last post I commented (again) on the obligation of governmental officials to use the powers we grant them for the public’s benefit and not their own.  But bloggers, I have discovered, have ethical obligations too, and it was for ethical reasons I decided I could not comment on a recent Court of Appeals opinion (Bojangles v. Town of Pineville).

            No, it was not my case, but it was a case prominently cited by opposing counsel at a Board of Adjustment hearing and on certiorari review in a dispute I am involved in over the vested rights status of a medical waste incinerator in the Town of Matthews (Mecklenburg County).  As I post this, the judge still has not rendered a decision.

             The ethical issue here is a conflict of interest.  Conflicts of interest arise when there is a fiduciary duty to someone else affected by your own financial or other interest.  When personal and fiduciary interests compete, you have a conflict.

             In the almost 3 years that I’ve written this blog I’ve learned that my readers include attorneys, planners, judges, elected officials, citizens and academics.  I get several hundred hits per post, a number that far exceeds my subscriber base.  I don’t know how much this blog influences opinions, but I certainly would like to think that it does. And for that reason alone, I have fiduciary duties to readers.

             So let’s delve a bit deeper to examine my personal interest.  When attorneys litigate, it’s a gift to be able to understand the merits of your opponent’s case, but it’s necessary that you find the zeal to understand and advocate your client’s position. 

             But therein lies the problem.  Commentary on new cases can become a conflict of interest in two ways.  First, when a new opinion comes out, it is practically impossible for me or any attorney to separate personal opinions of the case from a client’s interests.  And to the extent that you take your time to read this blog for education or insight, you need to know that my commentary is not colored by an existing client’s interests, just as you want to know that a financial reporter’s coverage of a company isn’t affected by his stock ownership.

             Second, and in most circumstances, my professional (and ethical) duty to my clients limits my ability to take positions here that are opposite their legal interests.  So, the best approach with Bojangles, I decided, was not to comment at all on what, to me, was a fascinating “canon of construction” case where two of the state’s finest land use attorneys took dictionaries in hand and duked it out over the meaning of the word “replace.”

             Sidebar:  I have used this space on numerous occasions to applaud the limits we place on overreaching or abusive governmental powers in the area of land regulation.  My previous positions in this blog have been consistent with the position I would have taken on the Bojangles case, which would have been consistent with my client’s position in the incinerator case.  But that still doesn’t mean that commenting would be ethical.  In fact, the essence of a conflict is that it should prevent you from engaging in the decision regardless.  End sidebar.

             Legal bloggers, to my knowledge, have no codified ethical standards.  Accordingly, I have to use a “gut check.”  On a couple of past occasions my gut check told me that disclosure of a personal connection to the case was all that was needed. Here, it required more.

             Each time a case comes out many folks ask me what my take on it will be, and Bojangles has been no different.  When asked, I’ve explained my dilemma. At some point I might be clear to comment.

             In the meantime, stay tuned.  A recent case out of Cumberland County provides lots of fodder for how a zoning ordinance should be interpreted.  And I’ll tell you all you need to know about it.

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            I’ve written several posts in this space on the topic of governmental ethics and the often-shifting and occasionally fuzzy line separating personal interest from public good.  As I said in a previous post (Government Ethics (Redux)):

“From lowly Soil and Water Conservation District representatives to the President, men and women elevated to elected and appointed positions have fiduciary duties to the public.  They exercise and are entrusted with powers we have handed them to take care of the rest of us. This power can be used beneficially for the common good, or it can be abused for all the reasons that gave rise to Shakespeare’s many tragedies.”

            Last week the Raleigh News & Observer reported on a legislative ethics opinion that illustrates how frustrating governmental ethics can be.

            Rep. Stephen LaRoque requested a formal ethics opinion regarding his ability to sponsor legislation making billboard ownership more profitable by increasing billboards’ visibility. The “problem” is that he owns billboards.

            The legal opinion, in essence, said that it was OK.  Even though “the bill would provide a reasonably foreseeable financial benefit” to Rep. LaRoque, the facts that he owned “relatively few billboards” and the legislation “would not benefit [him] to a greater extent than other billboard owners,” the ethics rules would allow him to sponsor the legislation.

            Let me rephrase the legal opinion.  Even though Rep. LaRoque could use his powers as an elected official to directly enhance his personal wealth, it was OK because 1) the legislation wouldn’t enhance it too much and 2) other billboard owners would make more money too.

            In the immortal words of Colonel Sherman Potter of M*A*S*H 4077, “horse hockey.”

             It’s only coincidental that this example involves billboards.  I’m not picking on that industry.

             What’s frustrating is that ethics in any profession is not about what feels right and wrong but rather about the strict application of general rules to specific circumstances.  In this case, the rules governing the N.C. General Assembly provide an exception that enabled Rep. LaRoque to use his fiduciary powers for his own private gain.

             If the billboard industry had contributed $100,000 to LaRoque’s political campaign and then lobbied him to sponsor this bill, the rules would allow it.  But if a member of the industry or public handed him a mere $5 bill to vote for the legislation, and he accepted it promising to do just that, both of them could land in a federal penitentiary.

             Interestingly, when this legislation was reviewed by the Rules Review Commission, both the chairman (Ralph Walker) and member Faylene Whitaker recused themselves because Mr. Walker leases land for billboards and Ms. Whitaker rents billboards to advertise her business.  To them it was a no-brainer, and they didn’t see the need to request an ethics opinion.

             I trust Mr. Walker’s and Ms. Whitaker’s gut check much more than I do Rep. LaRoque’s formal opinion.  And I wish more local and state officials were equally attuned.

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            Not my farewell, but my blog partner’s farewell. Someone you didn’t know existed.  My job in this space has been content.  To provide commentary and insights into the world of land use and the environment that you don’t get from any other source.  But like all endeavors, there’s a team.

             If you go to the top menu and click on “The Author” you will find a video of me taking off in a helicopter.  Yes, that’s really me taking off in a real helicopter to look at real land with a real client, but the aerial view after that is stock footage somehow magically spliced in by Jessica Robertson who, until two weeks ago, was the marketing guru in my firm’s Greenville, S.C. office.

             The other parts of that video, including the scene where somebody who looks like me from behind speaks to a group of elected officials, were all Jess. (She called the guy my “stand in”, although I much preferred the term “stunt man.”)  And of course, the overlays of those images on the guy who actually is me was her work.

             The logo you see above is her creation.  The muted law firm “shingle” you see was her design.  Even the name of my blog was her idea. But she has left our firm and I thought it was appropriate to use this space to say farewell.  As of two weeks ago, Jess became Senior Account Manager of a company called Vantage Point Marketing.

             I have no clue as to what her new company does, and I’m sure they must have a website.  But if you or your company or your city or county needs marketing advice, consider this a shameless and unapologetic plug. Jess is, I think, the only person I’ve ever worked with who I actually would consider a genius.  And the right side of her brain does more than design.  She composes classical music, too.   And she’s fun to work with.

             Thanks Jess.  Well done, Vantage Point Marketing.

             Stay tuned for more blog posts. I have entries soon to go up on ethics of elected officials and a recent case that pits a landowner against the powers of railroads and NCDOT.

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            American counties and towns are peppered with an unusual governmental creature called the “Board of Adjustment.”  BOA functions may vary state to state, but they are the focal point for some of the most far-reaching land use decisions made by local governments.

             In North Carolina, Boards of Adjustment can issue subpoenas much the same as lawyers can issue subpoenas within the General Court of Justice (the trial courts).  Subpoenas are a necessary power because BOA’s function as quasi-courts.

             But there are no statutes or rules that tell Boards how they can issue subpoenas and no cases that have interpreted the BOA statutes that grant this authority. More importantly, it’s not the board but the parties who need this power because it’s the parties who have the burden of proof and the burden of producing evidence.

             To my knowledge, there have been no scholarly (or unscholarly) articles written about the Board of Adjustment subpoena in North Carolina, but I’m ready for somebody to show me one.

             Two weeks ago I published what I think is the first article on this topic in Land Use Law Quarterly, using that forum to challenge the enabling statutes and to ask for needed clarifications.  Attached is a suggested form if you need to issue or request the issuance of a subpoena.

             Enjoy my Land Use Law Quarterly article article below:

 The Board of Adjustment Subpoena – Calling for a Statutory Rewrite

 

Overview

            American jurisprudence is an adversarial system in which one party has a burden of proof.  Along with the burden of proof comes commensurate power in the hands of the parties to compel the production of evidence.  Without this power the burden is meaningless.

             As officers of the court, attorneys are authorized by statute to subpoena witnesses to attend depositions and hearings and to require document production relevant to the controversy.  As hearings proceed, attorneys – not judges – control the fact finding process, and the judge’s role is to act as arbiter of evidentiary disputes.

             This adversarial system, controlled by the parties rather than the court, is an element of the Common Law system that arose out of England and spread to its colonies.

             Surprisingly, our board of adjustment enabling statutes incorporate provisions of a Civil Law system where only the board itself, as judge, is granted the power to compel the production of witnesses and documents.  The burden of proof, however, remains with the parties.

             The Civil Law system is derived from Roman law and is practiced in various forms throughout most of Europe and other parts of the world.  Broadly described, in Civil Law courts the judge directs the production of evidence, decides which questions witnesses are asked and determines the flow of the proceeding.

 Our Statutes Don’t Work

             City and county boards of adjustment are granted the power to issue subpoenas in N.C.G.S. §§ 160A-388 and 153A-345.  The wording in each statute is identical, as follows:

             “The board of adjustment may subpoena witnesses and compel the production of evidence.  If a person fails or refuses to obey a subpoena issued pursuant to this subsection, the board of adjustment may apply to the General Court of Justice for an order requiring that its order be obeyed, and the court shall have jurisdiction to issue these orders after notice to all proper parties.”

             Prior to 2005, county boards were not extended this power for reasons no one seemed to be able to explain. When both board of adjustment sections were revised in 2005, boards of adjustment still had only the power to subpoena without the power to enforce.

             Lost in the revision and debate, however, was one essential fact: it’s not the board that needs this power.  The party with the burden of proof is the one who needs this power when appearing before these quasi-judicial bodies.

             The need to place subpoena power in the hands of the parties can be paramount when the party is challenging governmental action.  In the case of a challenge to a zoning administrator’s interpretation of an ordinance or a zoning enforcement officer’s decision finding a notice of violation, the local government has no duty whatsoever to make sure that the administrator or enforcement office are present for cross-examination.

             In the case of special and conditional use permits where many of the issues are technical or scientific, the need to compel the attendance of witnesses or the production of documents in third parties’ possession can be critical.

             The problems here are twofold: First, the power to compel attendance or document production is in the hand of the wrong entity.  The board doesn’t need this power to perform its function, but the party with the burden of proof does.  Second, there is no statutory procedure by which the party who needs the board to exercise its subpoena power can appeal to the board to do it.

 Statutory Amendments are Needed

             Statutory amendments should be in one of two forms.

             The first potential change would be to recognize the unique and hybrid form of governmental body we have created in boards of adjustment and to grant attorneys the power to issue subpoenas in this context.  The advantage of this change is that subpoenas can be issued quickly and efficiently by officers of the court knowledgeable of the process.

             The disadvantage is that citizens appearing without legal counsel would not have the same statutory authority.  However, this is not a new issue because citizens appearing pro se in the General Court of Justice don’t have subpoena powers either.  Citizens who choose to appear pro se could simply appeal to the board to issue the same subpoena an attorney would.

             The second potential change is to clarify G.S. 153A-345 and 160A-388 to establish a procedure by which parties may request the issuance of subpoenas and to make it abundantly clear that it is a nondiscretionary administrative function performed by the board chair. 

             If the issuance requires board action, then parties will have to wait until the next board meeting – the meeting when the matter is most likely to be scheduled for hearing – in order to get a subpoena issued, and by that time it is too late. The hearing will have to be postponed until the next meeting a month later.  Such a cumbersome procedure would be riddled with both inefficiency and frustration and we can do better than that.

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             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.  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 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 believe I hear the distant sound of chirping birds.  I’m looking hard and seeing the faint glow 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 rising. 

             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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            Apparently we have to wait a bit longer for a final answer to the state’s million dollar question: can schools be funded by assessing developers an “impact fee.”?  The latest non-answer was recently published in the N.C. Supreme Court’s non-decision in the Cary-originated Amward Homes case.

             I’ve covered this issue in numerous previous posts, including my first Amward Homes commentary in Can you Hear Me Now – Impact Fees are Not Allowed by Law, and my second Amward commentary in APFOs – They’re Back. 

             A short synopsis of the primary question raised by the Cary controversy (found in detail at the above links) is this: can planners and elected officials strong-arm developers into “offering” impact fees in order to get official blessings on new subdivisions, especially when nobody with integrity would claim with a straight face that the “offer” was anything more than a response to extortion?

             A synopsis of the Court of Appeals answer (authored by Judge Robert Hunter from Greensboro) is this: NO.

What Happened to Amward on Appeal?

             The Amward Homes decision in the Court of Appeals was unanimous, meaning all three judges agreed with the holding, although Judge Jackson added a further comment that she thought the appeal was “interlocutory,” or premature.  When Court of Appeals decisions are unanimous, the only way to get your case before the N.C. Supreme Court is to petition for what is called “discretionary review.”  And the high court’s discretion in 95% of its requests is not to touch the lower court decision.

            But Amward was accepted for review, and the Supreme Court’s decision was limited to three sentences: “Justice Jackson took no part in the consideration or decision of this case.  The remaining members of the Court are equally divided, with three members voting to reverse and three members voting to affirm the decision of the Court of Appeals.  Accordingly, the decision of the Court of Appeals is left undisturbed and stands without precedential value.”

 Confused?  Let me Translate

             Justice Jackson was a member of the Court of Appeals panel that decided Amward in 2010, but she was then elected to the state Supreme Court.  It would be improper in many respects for her to hear on appeal a decision she rendered below. 

             Because the remaining justices were three for and three against, there weren’t enough votes to overturn or affirm the Court of Appeals decision.  Consequently, it stands as written and is binding only on the parties before the court.  However, it also “stands without precedential value.”

             “Precedential value” is a slippery term.  What it really means is that the developers’ victory and Cary’s loss (including Cary’s obligation to pay the developers’ attorneys fees is undisturbed.  However, the decision is not “binding authority” on future courts in other but similar matters (that is, future courts may ignore it).  Nonetheless, the reasoning in the opinion certainly can be used as “persuasive authority” which a court may consider.

             Precedent versus persuasiveness.  There’s a difference, but it’s sometimes thin.

 Are There Any Tea Leaves for Future Decisions?

             You bet.

             As long as the N.C. Supreme Court maintains it current composition, future cases (I predict) will face a Court that disfavors impact fees by at least a 4-3 margin.

             Justice Jackson not only sided with the developers in Amward Homes, but she authored the Union County impact fee case (Union Land Owners v. Union County) that struck down Union County’s attempt to impose an APFO.  Based on past opinions, Justice Jackson has demonstrated a judicial philosophy that courts must keep a watchful eye on local governments seeking creative ways to use newfound powers to levy fees and taxes and to make sure those powers are properly exercised and not beyond clear statutory authority.

             I like that.

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             If your knowledge of land use theory comes from a textbook you might think zoning is about the right and logical use of land.  But if your knowledge comes from life in the zoning battle trenches where bullets fly fast and shrapnel wounds are common, you know that zoning decisions often have more to do with the human psyche – our fears of the unknown, our petty prejudices, and our deep-seated need to protect our territory from invasion.

             Occasionally I will hear about – or be involved with – battles where those who complain the loudest about the use of land are folks who “came to the nuisance,” if the use, in fact, is a nuisance at all.

             The classic example in the Triad involved a rezoning adjacent to the Greensboro airport.  The Airport Authority all but begged the Guilford County Board of Commissioners not to allow a proposed subdivision because it was directly in the path of the airport’s next and planned runway.  The commissioners approved the rezoning anyway.

             When the Airport Authority announced that the runway, in fact, would be built and that FedEx planes would be using it, who do you think cried foul and sued to stop it?  That’s right. Residents in the subdivision who knew they were building/buying next to an expanding airport. 

             Yesterday I learned of a recent battle in Mecklenburg County that interested me partly because it involved neighbors’ complaints of farm odors and an environmentally-needed, green, recycling operation where everything from leaves, to vegetables to animal waste is converted into the mulch and soil materials you buy at any garden store.

             And it also interested me because it was a classic “move to the nuisance and then complain” story.  In this case, all the complaining neighbors moved into subdivisions that sprang up around the already existing farm operation and then complained that manure and natural organic mulching odors are objectionable.

             You can read about Wallace Farms here.  Their seven-generation farm operation (dating back to 1863) has grown and expanded over the years, and it was no secret that it existed.  And you can read about some of its battles with the City of Charlotte and NC DENR that began with complaints from neighbors at this link.

             I’m sure there are other perspectives and that the City of Charlotte might protest Mr. Wallace’s description of its Gestapo tactics when trying to close him down as a result of neighbors’ complaints. However, the best third-party corroboration that new neighbors moved in and then complained can be found if you Google “Wallace Farms” and kept scrolling to find a link to a website where neighbors communicate among themselves about it.

             Like many of you, I have limited patience with folks who choose to create urban lives in rural areas then complain that existing farms have odors, generate dust, and often have tractors running sunup to sundown.  And the same principle applies to any one who chooses to move next to an airport or a landfill, and then complains about it.

             Side Bar:  One of my many [nerdish?] habits is that I love to drop 50¢ in local newsstand boxes across the state to see what land use issues are making local headlines.

             This was a word of mouth story that I went online to check out.  Eric Wallace of Wallace Farms, it turns out, coaches a little league baseball team whose fifth grade second baseman is Hayden Murdock.  Hayden’s dad, Eric, is an executive at Wells Fargo who owns a Christmas tree farm and takes time each December to sell Christmas trees from his family’s farm at a lot in High Point.  Eric remembers every thing about every customer year to year and, recalling that I live my life in battles over the right and best use of land, told me this story. 

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             If you’ve ever wondered what frightens lawyers and keeps them up at night I can describe it in three words: statutes of limitations.

             A “statute of limitation” is a fancy way of describing a deadline to file a lawsuit.  That’s all it is.  The problems with these deadlines are that 1) they sometimes are unclear and 2) they are totally and completely inflexible.

             For example, the deadline to file an action challenging a legislative zoning decision is two months.  How clear is that?  “Two months” can’t be a shorthand way of saying “60 days” because 60 days is just as short and it’s much better defined. And if your action begins in January, do you get an extra two – or three – days to compensate for February’s short month?  Actually, nobody knows.

             With quasi-judicial decisions, the rule is not the vague “one month” but the precise 30 days, and it’s codified in N.C. Gen. Stat. § 160A-388(e2) as follows:

 “Any petition for review by the superior court shall be filed with the clerk of superior court within 30 days after the decision of the board is filed in such office as the ordinance specifies, or after a written copy is delivered to every aggrieved party who has filed a written request for such copy with the secretary or chairman of the board at the time of the hearing of the case, whichever is later.”

             The N.C. Court of Appeals recently published a case clarifying when the 30 days begins to run and affirming the strict 30 day cut-off when appealing from a quasi-judicial decision. 

             In McCrann v. Village of Pinehurst, The Village Chapel requested a special use permit to construct a “learning center.”  The relevant dates (all in 2010) are as follows:

 July 2 and 6 – Pinehurst Village Council hearing dates

August 24 – Village Council votes to issue the permit but doesn’t yet prepare an order

August 25 – Petitioner McCrann leaves voicemail with Pinehurst’s attorney requesting a copy of the written order

August 30 – special use permit filed and copies mailed and faxed to Mr. McCrann

September 30 – Petitioners filed a Petition for Writ of Certiorari

             Ouch. 

             August has 31 days, which means that August 30th to September 30th is 31 days, not 30 days.  Within 2 weeks the Village and The Village Chapel filed responses alleging that the appeal was time barred. (This is when a lawyer immediately calls his “carrier.”)

             Petitioners contended 1) that they “substantially complied” with the 30 day statute of limitations and 2) that because lawyers for all parties had been so cordial and professional that the Village and Village Chapel should be “estopped” from suddenly playing what might seem, to some, to be hardball.

             The Court of Appeals was not in a mood to oblige.  It noted that the statute was not followed in two key ways.  First, no request was made in writing to the chairman or secretary at the time of the hearing, which operates to grant an additional three days.  And second, they filed their petition a day late and several thousands of dollars in attorneys’ fees short. “Substantial compliance” might be a good defense for breach of contract, but it doesn’t get you around a statute of limitations deadline.

             The court noted that “statutes of limitation are inflexible and unyielding.  They operate inexorably without reference to the merits of plaintiff’s cause of action.”  Also, “the purpose of a statute of limitations is to afford security against stale demands.”

             In other words, dead is dead. (There is no “mostly dead” the term coined by Billy Crystal’s character Miracle Max in The Princess Bride.)

             As to the highly original and first-time asserted but-we-were-all-playing-so-nicely-in-the-sandbox defense, the court had limited patience and simply noted that estoppel has a specific definition and this wasn’t it.  Case dismissed.

             Two other comments.

             First, the toughest part of being an appellate judge is deciphering the facts. Briefs often are written by lawyers who don’t know how to tell a story and who immediately convert numerous organizations and parties to confusing acronyms.  Timelines are screwy and there is no common plot to which factoids can be attached. (And in land use cases, the facts can be, well, boring to all but the parties involved).  Once the facts are figured out, the law is often not that hard.

             The facts in this case are uncommonly easy to read and understand, and I’m sure Judge Stephens sat at her desk with the usual printed Record on Appeal and parties’ briefs and thought to herself “I might get home in time for dinner tonight.”

             And second, it is always appropriate to disclose any personal connection I have to an opinion I write about.  In this case the The Village Chapel was represented by four outstanding lawyers who also are my colleagues in the SML Raleigh office: Clyde Holt, Dave Neill, Brad Risinger and Matt Leerburg.

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            As a general proposition, I support billboards.  As a general proposition.  Billboards help ME when I need to find an interstate exit with my favorite fast food and a bathroom.  Billboards help me find hotels when traveling long distances. Yes, sometimes the blue signs with 6 different hotel or restaurant logos work just fine, but sometimes I want the information miles in advance.

             As you might imagine, there is a “however” built into my first sentence.

             The case for regulating any industry is usually made by the industry itself, not third-party meddlers.  If all restaurant owners operated sanitary kitchens, health inspectors would not be needed.  If some banks and finance companies hadn’t been, at times, unscrupulous, we wouldn’t need finance consumer protection laws. 

             Regulations usually come in cases of singular excess or gross negligence, and it seems the only way to close the barn door after one horse has escaped is to regulate the entire industry. 

             Billboards.  However.

             Two weekends ago I returned home from Pine Knoll Shores, traveling the familiar route along Highway 70.  The 100 mile stretch from Morehead City to Goldsboro is a billboard industry mecca.  If you’re not advertizing on a billboard you don’t exist.  My guess is that the 2010 census would reveal as many billboards on Highway 70 as there are people living east of I-95.

             But that’s not really my point. Yes, it’s an extremely ugly stretch of highway, and billboards are more than half of the ugliness.  Too many. Too close.  Too garish. Many of them are damaged and needing repair.  But I’m not calling on those local governments to control an industry so that I have a pretty drive home.

             My point is that the industry itself is doing a good job of asking local governments to consider when enough is enough. 

             Case in point.  A few miles west of Havelock you encounter a black and gold billboard advertizing Johnson Lexus in Raleigh and Durham. One hundred yards later you encounter another black and gold billboard advertizing Johnson Lexus in Raleigh and Durham. And after yet another 100 yards you see the identical billboard.  And after yet another 100 yards you see the identical billboard.  One half mile.  Nine identical billboards.

             I’ve only used the company’s name twice and without looking back at the preceding paragraph you can tell me exactly what company I described.  You do not need me to write

 Johnson Lexus

Johnson Lexus

Johnson Lexus

Johnson Lexus

Johnson Lexus

Johnson Lexus

Johnson Lexus

Johnson Lexus

Johnson Lexus

 in order for you to remember the company’s name.  And you certainly don’t need these billboards to assist you in finding local businesses and services near the highway.  These dealerships are more than 100 miles away. After a while, instead of reading “Johnson Lexus,” I read

 Regulate Me!

Regulate Me!

Regulate Me!

Regulate Me!

Regulate Me!

Regulate Me!

Regulate Me!

Regulate Me!

Regulate Me!

 

View showing some of the Johnson Lexus signs along Highway 70

 

 

 

 

 

 

 

 

            So that we are clear, I find no fault with Johnson Lexus.  In fact, I commend the company for strategically using media available to get its name in front of buyers.  They probably have excellent data on the number of higher income potential Lexus customers in their market who travel Highway 70 to the beach and back. Johnson Lexus knows, as do all political candidates and all companies entering any market, that advertising must be done continuously in order to penetrate our collective consciousness.  The perceived return on investment from these billboards must be high because they only had about four of the identical billboards in this stretch several years ago.

             And so that we are even clearer, I find no fault with the billboard industry for making the most of what local governments allow it to do.  But the point of insane saturation is clearly approaching if it is not already here.  The industry can’t flirt with such heavy bombardments of in-your-face visual clutter beside the publics’ right of way and then claim indignation when the political tide shifts in one of the local cities or counties and billboards are amortized.

             The latest trend now is to illuminate billboard faces with high definition brightly lit displays that change every few seconds.  The same billboard now advertizes multiple companies in sequence.

             What used to be a static image with a couple of muted spotlights is now a changeable Times Square marquee.  If all billboards along Highway 70 – or even some arbitrarily stated fraction – were illuminated, it would be like driving through New York’s brightly lit and sign-crazy Chinatown at 45 to 55 miles per hour for almost 100 miles.

             Billboards are a form of real estate development where space is leased, although zoning ordinances often regulate them as signage in the same category as the name of the company on its building’s Main Street awning.  In our auto-dependent world, highway information signs serve a function (although that same function is increasingly being served by smart phones and ipads, which, over time, may obviate the need for highway signage at all).

             I’ll continue to drive along Highway 70 despite the (growing) number of billboards.  But I’ll be watching with interest when the locals perceive the tipping point to have been reached.

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