One short sentence at the height of the Vietnam War became a moment of public epiphany that our view of reality had become distorted.  “It became necessary to destroy the town to save it,” an Army major told AP correspondent Peter Arnett.  Just yesterday, a senior fellow at the Manhattan Institute claimed in the New York Times that U.S. energy policy has adopted the same attitude towards land and renewable energy sources (The Gas is Greener).

             Robert Bryce uses California as just one example of several states that have mandated that certain percentages of their electricity be obtained from renewable energy sources within specific time frames.

             As Bryce explains, California’s mandate is to recover one-third of its electricity (or one-third of 52,000 megawatts) from renewable sources by 2020. 

             Oh really!?  The new $2 billion, 3,600 acre solar farm in the Mojave Desert will only generate a paltry 370 megawatts.  3,600 acres.  370 megawatts. 

             Even I can do this math.  Assuming this one solar farm is typical, then it takes 9.72 acres to produce one megawatt.  Seventeen thousand times 9.72 acres equals 165,240 acres. And since one square mile is 640 acres, 165,240/640 = 258 square miles.  This means that more than half the size of the sprawling city of Los Angeles would be needed to meet California’s renewable resource quota. 

             And when you assume that the new wind and solar farms would mostly be “green” areas, the impact on the environment is clear.

             We would be destroying it to save it.

             I support reducing dependence on foreign energy sources and learning to use the wind, the sun and the tides to power our Sony PlayStations and Maytag Washers.  But, as I wrote in this blog last October 13 (Earth, Wind, Fire . . . and Google) in a post on wind turbines, “it is an interesting irony that wind-generated energy poses a cognitive dissonance for environmentalists who love the idea of clean wind energy but who have great difficulty getting over the fact that wind only exists in pretty places, such as pristine mountain panoramas and gorgeous coastal seascapes.”

             Let California’s zoning battles begin.  I’ll serve the popcorn while the rest of us sit back and watch environmental groups decide which part of their state to save and which to destroy.

 And a Note to Readers

             The nicest comments I occasionally hear fall into the when-will-you-post-another-blog category.  Yes, I’ve been temporarily absent, due entirely to work.  My plate hath runneth over with several smaller matters, coupled with three rather large ones, including recently (and successfully) concluded litigation representing and defending Nash County in a hard fought zoning case –a zoning battle that required fifty depositions but an opportunity to work with wonderful local counsel, a solid county staff and a great Board of Commissioners.

             Thanks for your patience.  In the next few days I’ll give you posts on annexation battles, recent court decisions and the connections between technological innovation and land use.

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            After my unkind post of this past Saturday (Property Good – Government Bad), I’d like to commend the legislature for proposing a bill to enact a change I’ve been suggesting for years.  House Bill 806, if enacted, would distinguish between zoning text amendments and zoning map amendments, two completely different concepts that are treated the same for purposes of statutes of limitation.  For land use practitioners, this is a big deal.

             Rather than drafting something new, I’ll quote from a paper I’m presenting tomorrow at a seminar for attorneys in Cary. (If nothing else, it proves that I’ve already presented the idea publicly inasmuch as this paper was written and submitted for printing weeks ago).

             “We use the term “zoning ordinance” to apply to map amendments and text amendments, two completely different actions – two completely different concepts – yet treat them as if they are exactly the same thing. 

            Let’s look at the difference.

             Map Amendments – a map amendment changes the status of a specific tract of land.  Map amendments typically occur when somebody holds a set of building blueprints, is seeking or already has secured financing for everything from land clearing to brick and mortar, there is a bulldozer parked nearby, and contractors and subs have submitted bids based on current market prices.

             Not only this, but everyone who potentially has a dog in the fight has been notified of the change and had a chance to become a participant in discussions. 

             It is only fair to the owner/buyer/builder that any challenges occur within a reasonable time for the challenger to hire an attorney who prepares the pleadings.  Two months (or better, sixty days) makes sense.

             Text Amendments – A text amendment changes the processes and standards for the entire jurisdiction.  A text amendment typically occurs when a member of the planning staff or elected body wants to change a definition or a requirement in the zoning laws that affect the entire jurisdiction.  Nobody is notified by mail.  Most of them slip through without media notice.  And most importantly, very few people have standing at the time to challenge the ordinance. Sometimes nobody has standing. 

            There are no bulldozers waiting to bulldoze.  There is no financing term that expires within the month.  And there are no construction contracts.  There is no reason whatsoever for such a short period of time to appeal a text amendment.

             However, over several decades of jurisprudence our courts have either failed or refused to acknowledge the difference between map and text amendments, and they simply repeat the mantra “a zoning ordinance must be brought within two months.”

             And there’s yet another problem here.  If the text amendment that nobody had standing to challenge at the time was adopted illegally or unconstitutionally, or is illegal or unconstitutional on its face, then why should we allow local governments an escape clause by which they can either use or bestow upon themselves illegal powers simply by granting them a statute of limitations cover to hide behind.  We legalize what is illegal.

 The Fix – Amend the statute to clarify that only map amendment adopted by ordinance are subject to a 60 day statute of limitations.  Zoning text amendments should be treated like statutes.”

             And those ten preceding paragraphs explain the problem.  HB 806 provides that the statute of limitations to challenge a text amendment begins to run as soon as you have standing to challenge it, and runs for two years.

             However, it fails to address another problem.  Map amendment challenges are to be filed within “two months.”  The problem is that “two months” is not precisely determinable because there is no standard length month.  We should change it to 60 days.

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            In my last post I commented that House Bills 652 and 687 assume all powers exercised by local governments are clear and precise, noting the mischief created because “implied powers” are neither clear nor precise. One reader has asked me to define “implied powers.”  Let’s return to Civics 101.

            Power flows in two directions, and the genius of our political systems is that, over time, they (generally) maintain equilibrium.

             Citizens elect legislators and approve a constitution.  Legislators, in turn, approve municipal corporate charters and establish powers to be exercised by cities and counties consistent with the citizen-approved constitution.

             It is impossible, however, to specifically describe and authorize every action necessary for a local government to do what it was established to do.  Cities, on the other hand, need to know what powers are at their disposal to do the citizens’ business.

            “Corporate powers” are those powers granted to municipal corporations (cities and towns) through N.C. Gen. Stat. § 160A-4, which vests cities with “all of the property and rights in property belonging to the corporation . . . [to] sue and be sued; [to] contract and be contracted with; [to] acquire and hold any property . . .  and [to] have and exercise in conformity with the city charter and the general laws of this State all municipal powers, functions, rights, privileges, and immunities of every name and nature whatsoever.”

            “Police powers” generally are powers of the sovereign government (e.g. federal or state) to promote the general welfare and protect the health and safety of their inhabitants.  Police powers can be delegated to local governments.  Zoning land, for example, is an exercise of the police power delegated to local governments.*

             “Implied powers” are typically described in numerous cases as “such powers as are necessarily or reasonably implied from those expressly granted or such as are essential to the exercise of those which are expressly conferred.” 

            So . . . the point remains. Interpreting ordinances and laws and determining which ones are “beyond authority” is difficult at best.  Villainizing local government employees and elected officials for doing their best to get it right only punishes governments for doing in good faith what we have established them to do.  Under House Bills 652 and 687 human error is not acceptable.

            *Side Bar: My first zoning case, loosely speaking, pertained to the zoning designation of property in a client’s estate when I was a summer associate at the Manhattan law firm of Davidson, Dawson & Clark in 1984.  I will never forget attorney Bill Buice (fellow southerner and a Duke Law School grad) asking me if I knew anything about zoning.  I replied with some degree of self-satisfaction, “I know that it’s an exercise of the police power of the state,” to which he accurately replied, “That, along with fifty cents, is worth a small cup of coffee.” Several hundreds of zoning cases later, Mr. Buice’s wisdom remains unchallenged.

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            Everyone who pays a mortgage or property taxes supports some level of private property protection, but two bills filed this week create more mischief than their sponsors realize.  Or . . . maybe they don’t.

              House Bill 652 (Property Owners Protection Act) and House Bill 687 (Local Abuse of Authority Attorney Fees) have no balance, simultaneously deifying all actions by property owners and villainizing good faith actions or mistakes by planners and other government officials.

             The Property Owners Protection Act has typical explanatory “whereases.”  The first whereas states that the NC Supreme Court “has repeatedly held that land use regulations . . . are to be strictly construed against the government and liberally construed in favor of free use of land.”  This is true, although modern courts have trended towards some deference to local government ordinance interpretations where there is a reasonable dispute.

             The third whereas states “sometimes overzealous staff interpret and enforce land use regulations beyond the scope of the law or ordinance . . .” (emphasis added).  And . . . this is true too.  I spend my life in the hallways of city and county government buildings across the state, and occasionally I do meet staff who aggressively use their positions of power to effect private visions of land development far beyond what is required by ordinance.

             But the proposed remedy is draconian and ill-advised.  If a landowner disagrees with a staff person’s interpretation and wins in court, the judge “shall award to the property owner, as costs, the actual attorneys’ fees incurred” in the challenge.

 Problem 1 – this provision leaves no discretion in the hands of the judge.  Most challenges relate to ordinance provisions that simply are not clear, and the original interpretation is more often than not made in good faith.  If the General Assembly wants to make it easier to challenge the government, it should make attorneys’ fees discretionary based upon the underlying facts.

 Problem 2 – “actual attorneys’ fees” is an open invitation to overzealous attorney billing to correct an ordinance interpretation that is statutorily presumed to be in bad faith.

 Problem 3 – This mandate could paralyze planning staffs and unnecessarily involve governmental attorneys in routine decisions. The punitive provision kicks in when a government is found to have made nothing more than an “improper interpretation.”  I have personally litigated many ordinance interpretations and attest to the rarity of a clear-on-its-face ordinance that a staff person intentionally – or stupidly – interprets another way.

 Problem 4 – The Law of Unintended Consequences has never been codified, but it applies universally.  Here, if I were the attorney representing neighboring property owners challenging a rezoning related to someone’s “free use of property” to the derogation of my own client’s free use, I could make an excellent argument for the neighbors’ attorneys’ fees as well. I don’t think this is the bill’s intent.

 Problem 5 – Governmental litigation can get expensive. Very expensive. And the taxpayers (other private property owners) subsidize the litigation.

             House Bill 652 also amends the Protest Petition statute (NCGS 160A-385) to expand protests to text amendments as well as map amendments.  Of course, it would be unprofessional to call legislators idiots, and I don’t.  But I do say that the proposal itself is idiotic.  A qualified protest petition is determined by the signatures of property owners who own land in a buffer area surrounding a parcel being rezoned.  A text amendment applies to the entire city.  If there is a way to determine a buffer for a text amendment, I’m all ears.

             Anybody?  I’m listening.

             The other bill (Local Abuse of Authority Attorneys Fees) has the same problems as H652.  This bill mandates the award of attorneys’ fees to someone who challenges a city or county whose action is found to be “an abuse of authority.”

             Irony upon ironies, H652’s second whereas is that local governments have the staff and attorney power to draft clear standards and, therefore, any lack of clarity is held against them.  However, H687, drafted by a legislative team with staff and attorneys at their beck and call is, itself, a model of muddy legislation.

 Problem 1 – the legislation does not acknowledge the statutorily recognized and court-sanctioned concept of implied powers.  Where do implied powers fall in this scheme?  Does this legislation eliminate implied powers?  If so we’re in trouble.  The same applies to generally described “police powers” that are sanctioned by legislation even if not enumerated.

 Problem 2 – what is the line between authority and abuse of authority?  Does a mere judicial victory over the interpretation of a statute constitute an abuse of authority?

 Problem 3 – as with H652, the Law of Unintended Consequences means that neighbors challenging a zoning decision for which there was insignificant technical error could have their attorneys’ fees paid.

             In North Carolina the general rule is that each side in litigation bears its own costs, including attorneys’ fees.  There are statutorily created exceptions, such as in cases of fraud, civil rights violations and other bad-actor actions.  I have practiced law for and against governments in every region of this state and I speak from deep experience.  Legislating mandatory attorneys’ fees in these situations is wrong-headed, contrary to established policies, and presumes local government staff and elected officials are “bad guys” rather than presuming that they are public-spirited citizens and servants as is the case far, far more often than not.

             If not shelved entirely, these bills should at least be modified only to address situations where there are clear facts demonstrating governmental bad faith, not just good faith differences of opinion.   

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            In a case with common facts but little precedent, the NC Court of Appeals hit a home run this week for both planners and developers against fickle, mind-changing governments in S.T. Wooten v. Zebulon Board of Adjustment.

 Facts

             S.T. Wooten Corporation makes asphalt.  The Town of Zebulon administers a zoning ordinance.  When Wooten approached the town in 2001to determine if an asphalt plant was a permitted use in a Heavy Industrial district, the town’s planning director replied by letter that an asphalt plant was permitted. The director’s interpretation of the town’s ordinance was clear and was not hedged, qualified, contingent or squirrelly.  No one appealed the planning director’s decision.

             And in reliance on this letter, Wooten spent approximately $300,000 on site improvements and in obtaining state and local permits, driveway permits, building permits, sedimentation and erosion control permits.

             However, in 2009, a new planning director was in town, and he informed Wooten that the plant’s “ultimate approval” still had not been determined because the town board must issue a special use permit.

             Wooten did the right thing.  It sought good legal counsel.

 Statutory Framework

             North Carolina statutes provide an orderly mechanism for determining the meaning of a local zoning ordinance.  The custodian of the ordinance is the planning director or zoning administrator.  He or she is judge and jury when questions arise about the ordinance’s interpretation.  Aggrieved parties can appeal the interpretation to the Board of Adjustment.  If the Board does not reverse the decision (they almost never do), citizens can appeal the interpretation to a superior court judge and go from there to the Court of Appeals.  Maybe even to the N.C. Supreme Court.

 The Opinion

             Judge Beasley’s opinion is straightforward and clearly correct.  Interestingly, as often as this scenario arises in one form or another, she had only two cases at her disposal for guidance, and neither of those cases presented facts identical to this one.

              As she stated, “we conclude that the 2001 statement of the planning director is a determination of binding force, and, because no objection was made to that appealable decision in a timely manner, it is binding on the Town.”

 The Home Run

             Judge Beasley’s decision was a home run for two reasons.

             First, it recognizes, respects and protects the proper role of the planning director.  Someone must be “on the ground” to interpret the local ordinance on a daily basis.  When he or she speaks, it is the final word, subject only to appeal to the Board of Adjustment pursuant to N.C. Gen. Stat. §§ 160A-388 or 153A-345.  Because the town did not appeal its director (as it had a right to do) it cannot undo the decision years later just by issuing a contrary opinion.

             Second, developers and private businesses like S.T. Wooten have a right to rely on the decisions and determinations of the person delegated with authority to interpret the local ordinance.  In fact, they often have no choice. Gray area determinations have to be made on a daily basis, and if the planning director’s decision is not binding then there is no assurance that the hundreds of thousands of dollars you are spending won’t be lost when a later director arbitrarily makes a different call.

The tragedy

              Inside every silver lining there’s a dark cloud, and with S.T. Wooten v. Zebulon Board of Adjustment the tragedy is that is was not published.   Although an unpublished opinion can be cited, it doesn’t have the weight or authority that a published opinion does.  I hope that Wooten’s attorneys appropriately petition for this case to become part of the library of permanent opinions.  It deserves its place. 

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            Local and state governments depend on economic growth to pay for government services, and very little growth occurs without someone buying or renting real estate.  Our collective real estate markets, therefore, are bellwethers for the nation’s economic health and our communities’ growth patterns.  Here’s where we’re trending.

             Acknowledging, of course, that today’s weather doesn’t establish a regional climate, there are three trends worth commenting on.

 Retail growth

            First, in the good news column, retailers are making more money because you and I are buying their goods. Home improvement giants Home Depot and Lowe’s recently announced huge fourth quarter gains.  Just today, McDonald’s announced that its February sales went up almost 4%, while Dick’s Sporting Goods announced a fourth quarter 30% net income. 

             When you and I buy a hamburger or a soccer ball we’re adding to McDonald’s and Dick’s ability to buy land to construct yet another store that hires yet more people who will spend their money on more hamburgers and soccer balls.

             And to pay mortgages. That’s the bad news column.

 Housing markets

            Also in today’s papers is an announcement that 23.1% of the nation’s homes were “underwater” in fourth quarter 2010.  “Underwater” means that a home now valued at $100,000 has a mortgage that exceeds its market value, say $110,000.  In that circumstance it’s hard to sell.

            And what’s worse, the number grew from 3rd quarter 2010.  It’s not a good trend, because homeowners start to drown when home prices fall.

How did this happen?

             If you remember the old Bullwinkle cartoons, let’s join Sherman and Mr. Peabody and step into the “way back machine.”

             In the early years of the last decade, banks financed homes for people with highly questionable abilities to pay back the loans.  These loans were called “sub-prime” and they took on a rating much like bonds.  As more and more money went into these sub-prime loans, more and more people could afford bigger and bigger houses and developers could finance more and more subdivisions.  Banks were confident in this scheme because they could sell these mortgages to Wall Street where they were bundled and packaged and labeled “safe” and sold to folks like you and me (and large institutional investors).

             When these mortgage terms were up and they were reset at much higher rates, defaults and foreclosures led to a drop in home values, loss of collateral value, and a plunge in the infamous mortgage-backed securities.  Bankruptcies – individual and corporate – followed.  The global financial system faltered.

            As NY Times’ David Brooks said earlier this week (paraphrased), our entire financial system was built upon the notion that our nation’s bankers wouldn’t do something stupid en masse.

            Fourteen months ago, on January 1, 2010, looking back on the disastrous year 2009, I described it this way:

             “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.”

Is there a third trend?

             Yes, and it’s also in today’s news.  Bank of America, which had much to do with the mess we’ve been in, just announced that its problems have stabilized and will get even better over the next two years. My translation: banks will soon have freedom to make more loans, and as money flows more freely through the system expansion can occur.

            So . . . my crystal ball tells me that developers will soon do more developing, builders will soon do more building, engineers will soon do more engineering, planners will soon do more planning, and elected officials will soon do more of whatever it is that they do when zoning proposals are on their agendas.

               Will it be “normal” growth?  Yes, eventually, with “normal” being defined by the more sustainable growth in the years preceding the sub-prime meltdown.

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            For more than 15 years I’ve advocated for various carriers and cell tower companies so that their customers can text their boyfriends, call their offices or surf the internet.  Until now, however, I never appreciated what a cellular infrastructure does for democracy.

             In today’s New York Times, researchers with Rand Corporation editorialize (“Can You Hear Libya Now”) that the only thing we can do to support Libya’s protestors short of military intervention is to give them  . . . cellular antennas.  Here’s how they describe it:

“Fortunately, there is an easy step the United States and its allies could take to help: deploying cell phone base stations on aircraft or tethered balloons. The calls could then be routed to Navy ships equipped with satellite communications terminals.

Base stations are small and cheap. Indeed, this kind of portable system, though not used, was already available in the aftermath of Hurricane Katrina, and in the years since the hurricane, the equipment has shrunk even further.”

            But the point is not Libya.  The point is that democracy has always been advanced through widespread communication.  The Gutenberg Press, for example, has been credited with enabling the more democratic Protestantism to gain footholds where the Catholic Church had monopolistic control on religious thought.

             Democracy in America was made possible because men like Ben Franklin and Thomas Paine had access to printing presses, and we’ve all heard many times by now that Marc Zuckerberg’s greatest legacy may actually be the use of Facebook to promote democracy in the Arab world.

             Which brings me full circle.  I’ve stood in front of Boards of Adjustment and planning boards and elected bodies in three states promoting the construction of cell towers.  In my presentations I’ve discussed comprehensive plans, zoning codes, the necessity of business to business communication, emergency professionals communicating with each other, families staying in closer communication and having 3G networks for wireless access to classrooms.

             I now will add another weapon to my arsenal.  Mass communication unfiltered by the owners and producers and editors of media corporations is an important tool for self-governance on local and national levels.

            Don’t believe me?  If their cellular reception is good enough, neighbors complaining about one of my board presentations can write and post nasty articles and photos of me on blogs, websites and as letters to the editor in the local paper even before the hearing has ended, and making good use, of course, of the very thing they came to the hearing to protest and demonize.

             Welcome to my world! 

             And welcome to America.

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             2,000 years ago all roads, it was said, led to Rome.  Today, all roads – or at least all major societal trends – lead, eventually, to changes in local zoning codes.  Like when we adopted entirely new zoning codes to adjust to being an automobile dependent society.  Like when communities adopted regulations controlling placements of the cell towers we demanded so that we could communicate 24/7 from any and every place we stood. 

             And when the world around us converted to binary codes, we eventually had to develop new zoning regulations for uses called “server farms” for companies such as Apple and Google and Facebook. 

         Now, a new kind of “farm” has emerged and local zoning codes are being rewritten to accommodate them.  “Solar farms” are proliferating, and communities must decide which types of districts they are allowed in.

             Davidson County is home to one of the largest “solar farms” in the country – second only to one in the Mojave Desert – where 100 acres of photovoltaic cells follow the sun’s daily path, generating enough megawatts for Duke Power to supply electricity to 2,600 average sized homes.

             Yesterday I read an AP article about Canton, Massachusetts using its closed landfill as a location for a small solar farm, and other communities across the country are considering using capped landfills for the same purpose.

             But photovoltaic solar panels can also be placed on top of schools and other buildings.  Are they accessory uses?  Industrial uses? Utilities?  If they are deemed to be industrial uses, could a tobacco farm converted to solar farm be stopped because it is spot zoning?  All of these questions must be answered.

             And don’t forget that wind power is being harnessed now through mammoth wind turbines on what colloquially are called “wind farms.”  Where and how will we allow land in our communities to be converted to such uses? 

             After the Davidson County solar farm was announced the City of Archdale in neighboring Randolph County adopted a new category for its Table of Permitted Uses for “Wind and Solar Energy Systems.”  These matters are being discussed more and more in planning departments and in council chambers every day.

            So . . . as the world goes, so goes the zoning ordinance.

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             Every now and then an appellate court issues an opinion that makes you rise from your chair and whisper “DAA-uhm,” although I was slightly more expressive when I read the recent NC Court of Appeals case Templeton et. al. v. Town of Boone.

             Templeton’s procedural history is circuitous, but the Cliff Notes version of the decision itself is straightforward. Even if a town has just rezoned your property against your wishes, you, as the fee-title-holding-tax-paying property owner, do not have automatic standing to challenge the rezoning unless you use all sorts of magic words and phrases in your complaint to prove that your property was just rezoned and the town has begun to enforce the ordinance against you. 

             DAA-uhm on each point.

             Let me say it another way in case I wasn’t clear. A local government can change the uses allowed on your land in what might be characterized as a hostile rezoning, but if you aren’t presently seeking permits or trying to change uses, or if the town sits idly by and takes no affirmative steps to enforce the ordinance for a mere two months, then the statute of limitations will pass and you are forever barred from challenging what could have been a patently illegal or unconstitutional abuse of power.  And if you can jump through that hurdle, then the court will parse the ordinance to see if you have precisely alleged that you own the land just rezoned.

             Waiter . . . check please!!

 What is Standing?

             “Standing” is the right to ask a court to determine a legal dispute in which you have suffered a wrong.  If you are party to a contract that was breached, you have a right to sue. If you are a third party unaffected by the contract’s performance, you don’t.

             In cases where zoning decisions are litigated, standing has long been the subject of debate because a plaintiff’s connection to rezoned land can lie somewhere between marginal and manufactured.  For example, as I write this I’m heavily involved in litigation where most of the plaintiffs live a straight-line-crow-flying distance of two to two and ½ miles away from the land just rezoned.  Among their numerous complaints is that somebody else, the landowners themselves who wanted the rezoning, were entitled to a certain type of notice from the government.  The two-plus-miles-away neighbors think they have standing to question whether somebody else’s rights were abridged.  (In my legal opinion, only the owners of the rezoned tract have a right to question whether an ordinance adopted for their protection was followed, but we’ll find out later what a court thinks). 

             But back to the point, North Carolina has a long and still-growing body of law on the rights of certain neighbors of the rezoned tract to challenge a government’s decision in court. In all of those cases our courts have had to determine if an adjoining or nearby owner has a right to challenge the decision.

             However, if it is your own land that has been rezoned, your standing to challenge the decision has always been assumed. Some might even say it is axiomatic. I certainly do.

             But wait.  There’s more. 

             I spoke with both attorneys.  Susan Burkhart, outside counsel for the Town of Boone, is known to be an outstanding attorney in an outstanding firm, and she got an outstanding result for her client.  By email, Susan explained that Mr. Templeton was found not to have standing because, in reality, his property really was not affected by the ordinance. 

             If she’s right, then that’s another problem.  The opinion doesn’t say that.  It says Mr. Templeton alleged he owned land that was affected by the zoning ordinance, and that basic allegation wasn’t good enough.  The court therefore dismissed the case because Mr. Templeton’s pleadings were deficient.  It was not dismissed because other facts proved that his allegation was wrong.  Thus, Templeton stands for the proposition that a landowner does not have automatic standing to challenge the rezoning of his own property unless he uses the right words and phrases in his pleadings.

Have we Ever Gotten Standing Right?

             Our courts have struggled with standing for decades. And if Templeton is an indication, we’re making matters worse, not fixing them.

              For starters, our analytic structure is schizophrenic. When someone seeks to change a parcel’s zoning status, our statutes presume that adjoining property owners have a stake in the matter and require that they be notified in writing within prescribed times.  The property must be posted to inform neighbors of the request. The same citizens are given a right by statute to express opinions or to provide evidence at a mandated public hearing. 

             But after the decision has been made, the same neighbors who had been presumed to have a stake must now prove to the court that they have a right to be a plaintiff. 

             Our analytic structure is also backwards.  Standing should reflect an assessment of a rezoning’s effect on neighbors after a board’s decision is made.  Standing should not be determined by the zoning board members’ mental processes in getting there.  Nonetheless, we actually have different standards for determining standing depending upon whether the board was acting in a quasi-judicial fact-finding capacity versus a legislative capacity, even if the effect on neighbors is identical.

            If the decision is quasi-judicial, statutes require a plaintiff to be “aggrieved” and to allege “special damages.”  If the decision is legislative, plaintiffs must demonstrate they were “directly and adversely” affected, which sounds like “aggrieved” to me, but let’s not get lost in the abstracts and instead consider an example that illustrates the point.

             Suppose County A allows fast food restaurants by a special use permit, while 50 yards away across the county line in County B the same type of store is allowed through a legislative zoning process.  Same street, same use, same neighborhood, same adjoining neighbors, but because the approval process is different in each county a court must apply different standards to decide whether neighbors have standing.  And in this (sort of extreme) example, the couple who lives in between could have standing to challenge one but not the other.

             Go figure.

 The loss of value “rabbit”

            For 40 years we wandered in the desert of lost property values being the only factual basis providing standing to challenge quasi-judicial decisions.  Like hounds prematurely freed from our leashes, we spent 40 years chasing a single rabbit through the legal thicket.

            Even if health and safety were explicit standards before the board, it would make no difference that a proposed and extremely loud race track would harm the health of most patients in the hospital next door.  The hospital would have standing only if its property value would be diminished.  It would make no difference that a proposed cell tower at the end of an airport’s runway would pose significant safety hazards to pilots and passengers alike.  The airport could only challenge the rezoning if its airport property would thereby be decreased in value. 

             The basis for this myopic exclusion of all other factors was an N.C. Supreme Court decision, Jackson v. Guilford County, a 1969 case that was published the same month that Sesame Street made its TV debut. 

             Although one never fully knows all the facts from reading the court’s opinion, neighbors in Jackson alleged that a proposed trailer park would harm their property values.  The court stated, “. . . the owner of adjoining or nearby lands, who will sustain special damage from the proposed use through a reduction in the value of his own property, does have a standing to maintain such proceeding.”

            So . . . the neighbors’ basis was affirmed.  The court never ever ever said that loss of property values was the sole basis upon which a party could establish standing.  Nonetheless, the line you just read in the preceding paragraph was expanded to the point where you practically had to hire an appraiser to appear and testify in a garden variety rezoning case if you wanted to preserve the right to litigate the decision.

 “Mother May I”

             When I was a kid we played a game called “Mother May I” where the designated “mother” would stand on one side of the yard and the rest of the kids on the other.  “Mother” would arbitrarily and sequentially tell each person whether they could approach using whatever number of baby steps, giant steps, leaps or hops the mother chose.  But if they didn’t use the phrase “Mother may I?” before starting, they had to return to the beginning.

            At some point in our 40 year wanderings courts began to look increasingly hard for magic words and phrases to see if plaintiffs had precisely alleged “special damages” or harm.  Did plaintiffs say “Mother may I?”

 The Mangum Case

             The North Carolina Supreme Court recently determined that plaintiffs had standing in a Raleigh Board of Adjustment strip club case to challenge a decision using parking, stormwater and other allegations (i.e. not property values) as a basis for standing.  Mangum v. Raleigh Bd. of Adjustment was Moses leading us out of the desert.

            The Mangum court also reminded lower courts that North Carolina is what is called a “notice pleading” state where citizens aren’t required to play “Mother may I” to gain access to our state’s judicial system.  Or, as the Mangum court phrased it:

“[I]t is the essence of the Rules of Civil Procedure that decisions be had on the merits and not avoided on the basis of mere technicalities.”  To deny a party his day in court because of his “imprecision with the pen” would “elevate form over substance” and run contrary to notions of fundamental fairness.” 

           The Templeton court, however, wasn’t satisfied with the Mangum decision or notice pleading.  It said:

 “Even though plaintiffs’ complaint alleges that plaintiff Templeton is the owner of real property ‘affected by the zoning ordinances adopted by the Town of Boone . . .’ the complaint makes no specific allegation that plaintiff Templeton’s property is located within 100 feet of a major traffic corridor or that any portion of his property could be seen from a major traffic corridor.  Therefore . . . [the] complaint does not make factual allegations which would support a finding that plaintiff Templeton’s property is ‘directly and adversely affected . . .’  Accordingly, we hold that plaintiff Templeton has not made sufficient allegations to carry his burden to establish standing to bring his statutory claims against the Viewshed Protection Ordinance adopted by defendant . . . and those claims are properly dismissed.”

             Three points.  First, if you follow the nuances of legislative and quasi-judicial decisions, you might have noted that Mangum was a quasi-judicial decision affecting one tract of land while Templeton was a legislative zoning text amendment affecting a broad area.  Two, so what?  Notice pleading is notice pleading no matter the nature of the case origin.  And three, in “notice pleading” a plaintiff makes a bare bone allegation to put somebody on notice of a claim.  If the claim has no merit, our rules are framed so that the case is dismissed after a substantive review of the facts or legal claims, not whether certain magical words and phrases were used at the pleading stage.

 The injustice of “unripeness”

             The last party I would join is one that has “tea” in the title.  But that might just be the last party in town, and I’m looking for an invitation.

             The ultimate mischief of the Templeton case is that is does not recognize a landowner’s standing in a zoning case as accruing the moment the legal status of the landowner’s land has changed.  Instead, it says that a claim is not “ripe” for judicial review until the government begins to enforce the law, as though the law was passed for sport and never was intended to be enforced anyway.  In doing this, Templeton establishes a clear mechanism whereby a city or county can utilize whatever unconstitutional or illegal processes it wants in the adoption of a zoning ordinance that denies owners substantial rights related to use of their land.  And as long as the city or county waits two months while the statute of limitations passes before it takes any action to enforce the new law, nobody will be around to challenge the ordinance for that very reason – the statute of limitations has now passed.

 So, what’s next?

             Under our procedural rules, when a three-judge Court of Appeals panel is split, a party can automatically appeal its decision to the state’s Supreme Court.

            In this case the court was divided thanks to a fairly tightly worded dissent by Judge Jackson who correctly noted the problem in allowing governments to wait plaintiffs out until the two-month statute of limitations has passed.  Although Judge Jackson weighs in first with an academic discussion of standing in various types of constitutional challenges, she absolutely nails her point by referencing an earlier unpublished opinion in which a plaintiff was found not to have standing to challenge a new ordinance because it had not yet been injured through denial of a permit or other form of ordinance enforcement.  But when the same plaintiff returned to court after an enforcement action had been completed, the plaintiff was told that the two month statute of limitations had passed.

             In other words, you’re screwed because our courts don’t grant you standing to sue before two months, and you’re screwed because our statutes don’t allow you to sue after two months.  But screwed is screwed and there’s no legal term that will better suffice.

             Unfortunately, the Templeton plaintiffs did not appeal, and the Court of Appeals decision stands.

 Where do we go from here?

             Big question.  And the big answer in my humble opinion is that we – the broad “we,” as in North Carolina – will only truly emerge from this wilderness when we adopt new and comprehensive legislation that simplifies and clarifies standing.  In other words, we can’t just keep tweaking the ever-growing body of case law that is increasingly confusing and conflicting.  The only way to fix it is to completely rewrite it.  

              People who live anywhere from next door to more than two miles away will always claim that their sky is falling because this use or that has been allowed.  But our standards for determining standing in all land use cases should be common.  They should be clear.  And they should be written to keep out the pretenders while inviting the truly interested citizen to have a seat at the judicial table.

            To read previous blog posts, continue to scroll down or click on a category of interest in the right hand column.  To be alerted when a new post is published, simply click the “sign me up!” button above.  If you learned something, please forward this link to others who also might benefit.]

            When our elected officials take their clothes off in private its one thing.  But when they disrobe in public it’s entirely another, and I’m NOT talking about recently-resigned NY Congressman Chris Lee.  I’m talking about Chris Montgomery, Mayor of the Iredell County Town of Mooresville who recently used the town’s email system to send racy messages to his mistress and to solicit a job from the developer of a gargantuan development project the town is regulating.

             I admit that I do a pretty poor job of keeping up with Mooresville political scandals and was unaware of the latest until I received a call from Bruce Henderson, a reporter from the Charlotte Observer – coincidentally as I was driving into Charlotte – wanting my opinion.  More specifically, did the recent 2009 legislation requiring local governments to adopt codes of ethics allow the Mooresville town board to take action against him?

             Mr. Henderson, it turns out, had found an earlier blog post I had written on that topic.  I told him the same thing I said in this blog a year ago – the new local government ethics laws have no more teeth than a chicken, although he sanitized it for me and it came out thus: “The new ethics law is grounded more in education than it is in enforcement.”

             A good editor is hard to find.

            If you came to the party late, the North Carolina General Assembly, already reeling from its own ethics scandals, adopted a two new statutes, codified as NCGS §§160A-86 and 87, that required all local governments to do two things.  First, they had to adopt their own codes of ethics that required themselves to obey the law, to avoid impropriety, to faithfully perform the duties of office, and to comply with laws they already have to comply with regarding open meetings and public records.  In other words, the codes of ethics really didn’t add any new duties.

             But second and more importantly, each elected official is “required” to spend a certain number of hours each year taking courses in ethics. Courses where you learn the difference, for example, between public and private communications.  There also are no teeth in this statute to enforce attendance at these meetings, but I know from experience that the vast majority of elected officials will sincerely and conscientiously attend these seminars and become better public servants for the effort.

             When we elect men and women to handle the affairs of the governments we establish, we also draw lines.  Lines that separate their public acts from their private acts.  Lines that separate their money from our money.  Lines that separate citizens’ property from their property.

             Under current laws, about the most a city council can do is to censure or reprimand one of its members.  In a vast majority of cases that is enough.

             But the question the reporter wanted answered was whether there is an interim point – i.e. now – when the town’s board could remove him from office and nullify the previously expressed will of the citizens who elected him. Under the new legislation, the answer is no.

             The final say over who leaves office generally should be in the hands of the same citizens who elected the official, and their method of “reprimand” is the ballot box.   Whether Mooresville citizens will vote Mayor Montgomery out of office a) for having a mistress, or b) for being so stupid as to use a public computer to send his steamy messages, or c) for dancing in the fault lines of obvious conflicts of interest by soliciting work from a developer he could help is for Mooresville citizens, not its Board of Commissioners, to decide.

             For, as Martin Sheen’s character said to President Andrew Shepherd (Michael Douglas) in one of my all time favorite films, The American President, “With all due respect, sir, the American people have a funny way of deciding on their own what is and what is not their business.”

             To read previous blog posts, continue to scroll down or click on a category of interest in the right hand column.  To be alerted when a new post is published, simply click the “sign me up!” button above.  If you learned something, please forward this link to others who also might benefit.]