If you listen to some opponents, you’d think Sherman’s army was scorching sacred Southern soil again, only this time marching under the Walmart standard. And today, January 25th, five days after Robert E. Lee’s birthday, Walmart meets its challengers in court, defending the Orange County (Virginia) Board of Supervisor’s decision to approve a Walmart somewhere within the seventy square mile area known as the Battle of the Wilderness.

             The Battle of the Wilderness was a huge area – did I mention it was seventy square miles? – in which the armies of Robert E. Lee and Ulysses S. Grant (not Sherman, actually) met for the first time.  If you’ve ever traveled through Virginia you’ll know that it’s a state that has admirably preserved its history. It’s a state that values its historic structures and protects its rural areas much better than North Carolina.  But that’s not what’s being litigated.

            Legal battles usually rise and fall on who can successfully frame the issue.  I frame this issue as follows: Once historians, the Commonwealth of Virginia and the U.S. Government identify the portion of the seventy square mile area that should be protected as the core battlefield, how can one appeal to history to stop Walmart in 2009 from developing in an area that for years has become populated with other retail uses and has long been zoned for commercial purposes?  If the land is as sacred as opponents claim, why didn’t they move long before now to buy it or preserve it?  Where were opponents when huge subdivisions, industries and other retail uses began to pepper the seventy square mile landscape?

             New readers may notice that I’ve made Walmart its own blog category.  Long-time readers may remember that I first covered this story when this Walmart store was approved in August 2009. (Easily found in the right hand margin of the blog).

             If you wonder why Walmart is so special to merit its own blog category, it’s because Walmart presents fascinating case studies in land use approvals that no other entity can provide. 

             My best guess is that an upscale shopping and dining development on the same site would not have generated any controversy and that a big box retailer with a large red bull’s-eye on its wall would have generated far less controversy, though the results would have been equal.

            It’s just that Walmart is a lightening rod that rose to symbolic status long before other large box retailers did.  Citizens opposed to homogenized retail – from fast food to clothing stores – have a particular disdain for the Walmartification of America, a reputation K-Mart, McDonald’s, Sears, J.C. Penney, Burger King, Target and other retailers have escaped. 

             Sometimes it defies logic.  Othertimes not.

            The issues before a zoning board should be matters such as traffic, stormwater control and neighborhood buffers, but in a Walmart rezoning the first speaker will want to talk about factory conditions in the country where Walmart suppliers have shops and the second speaker will accuse Walmart of having inadequate employee benefits.  It makes no difference that all of the legitimate land use considerations point towards approval if opponents can vilify the company on irrelevant issues, some true and some not.

              Walmart rezonings really are different.

             In zoning battles, perception and reality are bent and shaped in cauldrons of fear and raw emotion.  To summon armies to support you, you have to vilify the developer.  You have to make neighbors and the community fearful.  You can’t afford to be rational.  Every point must ring the warning bell from the Community Watchtower. After all, invasion by an outsider is imminent.  To arms.

            To some extent, Walmart brought its troubles upon itself.  For years the company took an our-way-or-the-highway approach to its ugly-to-the-community-but-cheap-for-Walmart monolithic gray buildings, refusing to work with neighbors or local governments when other developers usually would have compromised.  There are sound reasons why a company that automates its inventory and builds stores on high production counts can’t custom build a store for every hamlet in America, but Walmart became especially known for its arrogance and inflexibility because it was both.

            A few years ago the company underwent a tectonic shift in attitude.  It developed store prototypes that had a slightly more Main Street feel.  It got serious about community outreach and helping community charities.  It adopted green technologies and standards. It has experimented with smaller store footprints.  It has empowered its consultants to work more closely with local governments. And it hired some of the best public relations companies available to communicate proactively with neighbors and elected officials. 

             We’ll soon have the trial court’s decision. With prominent and deep-pocketed backers like actor Robert Duvall, legal appeals could follow.  Without having read the legal pleadings, I’m putting my money on Walmart.  As a matter of (non-legal) principle, I hope that it prevails.  Stay tuned.

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             Last winter I wrote a series of posts on ethics in government, one of which was about former Governor Mike Easley’s aide, Ruffin Poole.  Today, let’s talk about Mike.

             If you came to the party late, here’s the narrative.  Mike Easley was a young Brunswick County district attorney who made his name and reputation prosecuting politically corrupt members of his own party in the 1980s before running for U.S. Senate in 1990, a race he lost in the primary to Harvey Gantt.  He was elected Attorney General in 1992 as a crusading “top cop” of state law enforcement, then moved into the Governor’s mansion in 2001, winning in part on his reputation for not caving or pandering to partisan political pressures and his reputation as being tough on crime.

             But power is an insidious thing.  Hearing citizens call you “Mr. Governor” is soothing to the same ego that it unhealthily inflates, like a cancer causing destructive cell growth.  Bended knee supplications from powerful legislators are as gratifying as they are corrupting as your brain gets subtly confused and disoriented, twisting appeals to the authority of the office you temporarily hold into appeals made to you, personally.

             And there is a difference.

              It’s not that you’re a bad person.  You’re a good person in a culture where effectiveness requires influence in appropriate doses, but when the equilibrium is lost, influence and power can be like kryptonite to your ethical compass.

             Easley’s problems started with the woman he shares morning coffee with, his wife Mary.  First it was her trips to France and Italy at taxpayer expense, including chauffeured Mercedes limousines that cost tens of thousands of dollars each on trips that were only marginally justified.  Then it was her appointment to N.C. State University to run a campus speaker’s series under the protection of an $850,000 five year contract.

            But we knew the Governor had lost his ethical balance as well when public outrage was palpable yet they both were unrepentant and arrogant, refusing to acknowledge both the problem and the perception of the problem and hiring legal counsel to defend her contract.  They just didn’t get it, and the rest of us were slowly realizing that the man who had once been our favorite crusader against governmental corruption had himself become seduced by the Dark Side.

             Then other stories and allegations floated to the surface of the pond where scum typically can be found. The Governor had been ferried across the state on unreported personal and political trips by wealthy and influential friends who themselves were rewarded with prestigious political positions.  Awarding supporters with political appointments is routine and ethical.  If the alternative is appointing your political opponents then positions are left vacant.  But there are ethical lines that shouldn’t be crossed, and the longer you are in office the worse your eyesight becomes and the blurrier those lines appear.

             In Easley’s case it was what seemed to be the blatant quid pro quo of appointing his political supporter (and pilot) McQueen Campbell to the board of trustees of Campbell’s alma mater, N.C. State, and then approaching him as board chair about his wife being hired – at an outrageous and unsupportable salary – to a job that in any other university the person would receive, at most, at an assistant professor’s pay grade.

             Feeling the political pressure in a world where university funding is a political decision, the chancellor agreed.  The appointment, however, was short-lived.  Even the governor’s most open-minded political supporters winced and cringed when the man who wielded the largest lever in the state placed it beneath the political fulcrum to leverage hundreds of thousands of taxpayer dollars for his household’s benefit.

             In full disclosure, I liked Mike Easley and supported him in every campaign from 1990 to 2004, even holding a fundraiser in my home for him that year. I knew McQueen Campbell as a hard working and kind person.  Nonetheless, I was among those whose constant cringing gave me shoulder cramps. Yet, in a strange way I see both of them as victims.  Victims of the political culture that grinds up the best among us – Republicans and Democrats – and spits them back out with brands of shame.  Power is an addictive narcotic that leaves bodies in the political streets in red and blue states in equal numbers.

             Unless you have quit reading political news (and I wouldn’t blame you if you had), two weeks ago Governor Easley entered what is called an Alford Plea in state court for failing to file accurate campaign reports.  He was fined $1,000, received no prison time, and the federal prosecutor agreed to end his investigation as well.

             Don’t jump to the conclusion that this was backroom political deal making.  The federal prosecutor who joined in the plea was a Republican appointed by President Bush.  And the special prosecutor on the state claims was a Republican district attorney from Rowan County.  A full and successful prosecution would have been the reputation-maker of either attorney’s lifetime.

             But – and trust me on this – if both prosecutors agreed to this minor deal after interviewing hundreds of witnesses and combing through thousands of emails and other documents, it’s because they truly believed that the facts and the law were inconclusive and only supported the deal reached, and anything else might have taken months to prepare and weeks to try at the risk of a resounding and embarrassing “not guilty.” It didn’t help that an inexplicable statute gave later immunity to someone who testifies before the State Board of Elections.

             But the point, nonetheless, remains.  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.

             The problem is that political power is like Frodo’s ring. When you possess it, it consumes you in ways you don’t understand, and it works its black magic before you realize it’s happening. All we can do is to be vigilant and to keep reminding ourselves of the weakness of the human spirit and the dangers inherent in power itself.

             Our faith in our own cities and counties as well as our state and nation depends upon it.

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             Let’s talk trash.  It’s a large part of what I do each day, and I’ll start with you.  In 1960 “you” generated, on average, 2.68 lbs of trash (household waste) every single day.  But in 2007 you generated almost twice that amount at 4.63 lbs per day.  In fact, your average daily trash consumption only dropped a mere .13 pounds in 2008, the first time our daily per capita average has decreased in 50 years.

What’s going on here?

            Several trends converge to create these data, but since they are per capita calculations, population increase isn’t one of them.

            The primary factor underlying these pounds-per-day increases is that we consume more now than we did 50 years ago. In 1960 we had fewer clothes in our closets, fewer toys in our playrooms and fewer cars in our garages.  But increased wealth, credit cards, a collective and inflated sense of self worth, and the ever-perfected art of advertising have led to greater consumption of goods.  And more consumption means more trash.

            Our cultural shift to fast food feasting and convenience store grazing has created its own increase in food packaging that has a shelf life of a few minutes before it enters the waste stream to the tune of gazillions of tons of waste per hour, but that’s my gut data calculation, not one that the industry has provided.

            And don’t forget that 1960 was a world relatively free of electronic gadgetry.  The average household had one TV (black and white), one record player and perhaps a transistor radio.  We now live in a world where digital “toys” are on every shelf and desk in every room and are as necessary as clothing for our work and entertainment. And they become obsolete in increasingly shorter cycles, and then we toss them.

So what’s the big deal?

            The problem is that all of us create the problem of waste disposal while collectively interfering with logical solutions by fighting necessary landfills or refusing to allow tax dollars to be directed to more modern disposal options.

            We are an entitled society.  Have our cake . . . and then eat it too.

            But here’s where the increase in population is relevant.  An extra 1.95 pounds of trash per day times an extra 100 million or so people adds up to . . . LOTS OF TRASH.

            Last month I attended the annual meeting of the Solid Waste Association of North America (NC Chapter) and listened to several presentations on solid waste, waste-to-energy technology, and regulatory developments.  As an environmental and land use attorney, I was where I needed and – believe it or not – wanted to be.

            One of the presentations was by John G. Carlton, a solid waste engineer and engaging “futurist” with the highly regarded engineering firm CDM (Camp Dresser Mckee) in the firm’s Edison, New Jersey office.  In addition to the consumption statistics presented above, Mr. Carlton pointed out that the U.S. population is conservatively estimated to increase by 42% in the next 40 years. 

            Will we end up like the humorously mythical and future world in the movie Wall·E?  Or can we find adequate disposal options?  Because I can tell you now that, as humans, we insist upon greater and greater consumption and that all disposal options exist 40 miles and three counties away.  We can’t have it both ways.

            As our seemingly endless rural areas and large tracts of land without wetlands and streams disappear, our landfill options diminish by the day in inverse relationship to expanding urban growth. 

            One of the most interesting trends Mr. Carlton described was our move towards eleven “Megaregions” in the U.S. and Canada defined by economic linkages, transportation systems, land use patterns and population. By 2050, most of North Carolina will exist in what is described at the “Piedmont Atlantic” region that extends from the Triangle to . . . Birmingham, Alabama.

              I’m not making this up.

            These megaregions will become mega-generators of waste, causing up to develop mega-options for dealing with disposal and the wise use of disposed waste for energy.  Whether it is the conversion of landfill gases to transportation fuels, using closed landfills for solar and wind generators, or mass-burn waste-to-energy technology, converting landfills to generators of energy will be necessary.

            Carlton also discussed the effects of landfill gas, waste transport and waste-to-energy emissions on climate change and LEED certification of landfills, issues that planners and elected officials will soon absorb into their vocabularies and knowledge bases.

             Fifty years ago the waste industry was primarily concerned with collecting garbage from homes and businesses and dumping it into a hole in the ground.  Today it is a high tech, environmentally conscious industry supported by huge venture capital firms and university-backed research.  As Carlton describes its future, it will be a field dominated by chemical, electrical and mechanical engineers with an increasing army of our best and brightest who get their PhDs in . . . talking trash.

            So, as I post this on Thanksgiving Day, the beginning of our country’s second biggest three-day consumption period of the year, the take-away point I leave you with is this: we spend 99.99% of our time discussing growth in our communities without discussing the other side of the same coin – growth’s waste by-products and where and how we deal with this issue.

            But today is Thanksgiving. Go and consume.

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            When it comes to appellate litigation there are holdings (which are fodder for legal treatises) and there are lessons (which become fodder for life in the real world). Last week the N.C. Court of Appeals issued an unpublished opinion in Jobe, et. al. v. Town of Haw River that has a clear holding and a clearer lesson.  Let’s visit.

 The facts

             A citizen in the Town of Haw River (in Alamance County) wanted to construct a “construction and demolition debris recycling center and concrete plant.”

             Have you spotted any red flags on the horizon yet?  If not, they get bigger.

             The case was a mess from the beginning.  The town’s planning board held a public hearing a mere six days after the application for a special use permit was filed.

             Then, without posting the property as clearly required by Haw River’s zoning ordinance, the Town Council conducted a public hearing in September where it decided 1) not to swear in speakers and 2) just to listen to opponents.  It then decided to hear from the applicant a month later in October.  Opponents were given no opportunity to cross-examine the applicant or to offer rebuttal evidence at the second town council hearing as clearly allowed by statute and substantial legal precedent. [According to appellant’s attorney, it was even worse.  The hearing was “closed” after the end of the September meeting and never reopened when the council met again in October, yet it continued to hear evidence.]

             Neighbors appealed the town’s approval to superior court claiming failure to follow the notice requirements in the zoning ordinance and a complete absence of competent, material and substantial evidence upon which the town could have based its decision.  Surprisingly, no error was found. More importantly, the court failed to proclaim which standard of review it was using on each claim (as required).

             There are colloquialisms that would better describe this process.

 The holding

             On appeal to the Court of Appeals, the Court focused first on the fact that it was incapable of doing its job until it knew what standard of review was applied to the claim of legal error (which should have been de novo review, a non-deferential standard) and which standard of review was applied to the neighbors’ claim that the decision was not supported by evidence in the record (which should have been “whole record review,” a standard that defers to the board’s decision).

             Then the court said in four paragraphs what I can summarize in four words as its basis for issuing an opinion anyway: “Oh what the heck!” 

             It was clear in the record that public notice – as required by the local zoning ordinance – was not provided, thereby invalidating the town’s decision no matter which standard was used.  Second, it was nonetheless clear in the record that findings from the first hearing were not made upon sworn testimony, thereby rendering them incompetent.  Therefore the court reversed the trial court and upheld the neighbors’ appeal.

 The lesson

             As I said at the beginning, there’s a holding and there’s a lesson.  This case actually teaches two lessons.  First, when you seek approval of landfills, waste-related uses, asphalt and concrete plants and the like, neighbors who dislike a decision to approve will appeal.  Expect it.

             Which leads easily to the second lesson.  You can line up your votes politically and “win” before the local town board or county commission, but if you didn’t follow the ordinance and dot your “I’s” and cross your “T’s”, you’ll lose everything in court that you got from the board.  The body of case law that a board has no leeway to depart from its own ordinance is strong.

             It’s not unusual for cases to return a second time.  Can this applicant return for a second bite at the apple?  Possibly, depending upon what the local ordinance says.  Although a board sitting as a quasi-judicial body is generally bound to make the same findings and conclusions in the future that it made previously upon the same facts, it’s not clear from this decision what evidence was and was not presented.  Stay tuned.

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            Government’s ability to pull us out of a recession through increased spending was, to some degree, a major issue in recent state and federal races.  Economists battle over the data.  Citizens often don’t understand or care about the data, but they duke it out at the polls nonetheless.

            Whichever position you take, I couldn’t help but notice an article in the Triad Business Journal on-line edition that was published, coincidentally, on Election Day (“Martin Marietta Shares Rise as Rock Sales Grow”).  According to the article, Martin Marietta, one of North Carolina’s major suppliers of aggregate (stone that is used in construction), posted strong third quarter earnings because of a “6.3 percent increase in the volume of rocks, gravel and other construction aggregates sold by the company . . . .”

            About 25 years ago, one of my good friends from college went to Wall Street where he worked as an analyst for the auto industry.  He once explained to me that you don’t judge the industry’s health by looking at cars coming off the line.  You look, instead, at the companies that supply the parts the auto companies need. Sage insight from a guy who majored in Latin and Greek.

            The same principle holds for real estate growth and local land development.  If Martin Marietta or Vulcan Materials or Wake Stone or other companies in the aggregate business increase their sales, it means that somebody in the growth industry is buying.  Shopping center developers?  Residential subdivision developers?  Industrial parks?

            I could only wish.  The entire article was framed by this one sentence: “Increased state transportation spending drove much of the increase.”

            The Business Journal then added: “Looking forward to 2011, Martin Marietta said it could not issue guidance [on income projections] until the fate of President Obama’s proposed $50 billion infrastructure-investment proposal is determined – an outcome that will be impacted by today’s midterm elections.” (Read “government spending.”)

            And we know what happened by end of day on November 2nd.

            So . . . the question I have asked many times in this blog still remains. When do our planning boards get active again? When do planning staffs get to work on more than text amendments and road closings?  When does growth return?

            The answer still appears to be “not soon.” When you have the time and the patience to peer at distant horizons, economic growth does occur when public (read “government provided”) infrastructure – from roads to airports to utilities – is upgraded. But if you’re fixated on the prognosis for the next quarter’s growth, you must look at different markers. The retail industry won’t snap back until jobs and consumer spending increase on a sustained basis.  New home construction won’t fully return until the inventory of new homes and lots that piled up through 2008 is absorbed and the credit markets relax. 

            And what happens when government spending is drastically cut?  I think the answer is around the corner.

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            In the next few paragraphs I will logically connect information giant Google with land use issues, environmental sustainability, the70s R&B group Earth, Wind and Fire and M. Night Shyamalan’s summer flick The Last Air Bender.  Ready?

            If you read yesterday’s NY Times article Offshore Wind Power Line Wins Praise and Backing, you have a head start.

            We all knew that Google was expanding its digital reach into every product and service known to man, but now it’s moving into the energy business through off-shore Atlantic wind farms that stretch from Southern Virginia to Northern New Jersey.  The water-based wind-capturing turbines would transmit electricity to only four connection points on land from where it would be redistributed throughout the grid.

            Google – along with other investors, but I’ll keep it simple by referring to the name we all know – is playing the role of the Shyamalan’s Last Air Bender, uniting and conquering all of the earth’s competing elements to create electricity, modern society’s replacement for fire, only this is a movie in real time and real life.  According to knowledgeable article commentators, engineering and project costs are not the impediment.  The greatest impediment is the one power greater than the earth’s elements themselves – entrenched federal bureaucracies with the power to issue the coveted permits. 

            And there’s quite a mountain of anecdotal evidence that environmental regulators lean more than slightly away from large corporations and towards anti-corporate environmentalists.  If the turbines become an environmental cause célèbre, it could take decades to gain approval.

            However, the article quotes a deputy director of the Sierra Club who “had campaigned against proposed transmission lines that would carry coal-fired energy around the country.” She would favor this proposal.

            Stop.  Let’s dissect that point.  There are several stories behind that one statement.  First, I’m guessing that Google presented itself as the angel-winged alternative to coal, an industry that already wears a devil’s suit in the eyes of the Sierra Club. Sometimes presenting your opponent with a false choice works.  But sometimes the choice is not false.  This actually may be the alternative we’ve all wished for.

            Second, companies like Google are PR savvy.  They don’t just Bogart their way into Congress, the federal agencies, and the nation’s newsrooms.  They hire lobbying and public relations firms to quietly open doors that otherwise would slam shut, and that’s before shotguns are poked out of the windows.  It seems that Google conducted briefings with key environmental groups like the Sierra Club in advance of public disclosures so that their reactions would be private, privately discussed and, if necessary, privately addressed through project modifications.  Local governments and developers call these “neighborhood meetings.”

            The article suggests that governors of affected states also have taken a positive position because they were briefed.  I’m sure that’s just the starting point of a long list of pre-disclosure contacts.

            And third, it is an interesting irony that wind-generated energy poses a cognitive dissonance for environmentalists who love the idea of clean wind energy but have great difficulty getting over the fact that wind only exists in pretty places, such as pristine mountain panoramas and gorgeous coastal seascapes.  Google’s plans place the turbines at enough distance that the earth’s curvature keeps them out of site.

            Finally, with only four strategically selected land-based connection points, Google won’t face the very real possibility that the entire East Coast’s chance for an additional clean energy source (and it’s $5 billion project) won’t be jeopardized by the vote of one local election-conscious county commissioner who is fearful of ten angry neighbors who might campaign against her in November.  Which is too often how the world works.

            So . . . what’s it all about, Alfie?  It’s about Earth. Wind. And Fire.

            And government-issued permits.

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            I celebrate my 25th anniversary today, silently. And humbly. Twenty-five years of membership in the one profession that is needed for an ordered society to thrive under the deliberate laws of its duly-elected citizens. 

            In 25 years I have learned much, taught much, laughed much, and had moments of tears. I’ve made mistakes of law and mistakes of judgment, each one, I hope, making me stronger and better as a person and as a lawyer.

             I have gained deeper understandings and a richer appreciation of our adversarial process, where the opposing counsel is my colleague, not my enemy, where successes belong to the men and women who have entrusted to me their interests and their livelihoods, but where failure is personally felt.    

            Over 25 years I have advised governments in their deliberations of what is useful and what is good, and I have represented businesses as they have created jobs and expanded tax bases.  I have represented men and women who, because of someone else’s negligence, have lost a member of their family, a part of their body, or their ability to earn a living. And I have, on a few occasions, had the privilege of standing between a citizen accused of a crime and a powerful government that clumsily holds the levers of the fragile machinery of justice.  Over 25 years I have learned that justice is more of an ideal than a result, and that, in spite of our continuous efforts to improve our laws and legal systems they remain inherently unequal and imperfect because we, as humans, are imperfect.

            As a profession, we are often maligned on Monday by the same person who needs us desperately on Tuesday, while the methodical and tedious and time-consuming efforts required to build and present our cases in courts of law are often portrayed in abbreviated simplicity and undeserved glory in movies and TV.

            But our role in a civil society is never so keenly underappreciated or misunderstood as when, in celebration of Memorial Day or the 4th of July, citizens of admirable intention forward mass emails that credit the totality of our freedoms to victories and sacrifices on foreign battlefields, messages that ignore the ongoing battles in our own cities and neighborhoods over the centuries either to protect American citizens from society’s members who are sometimes fearful of others’ freedoms while guarding their own, or to protect citizens from a government that has taken active steps to take their freedoms away.

            I’m proud that it was lawyers with briefcases, not soldiers with guns, who fought for Rosa Parks’ right to sit at the front of the bus when the duly adopted ordinances of Montgomery denied her that freedom.  I’m proud that the rights of Jehovah’s Witnesses to practice their religion according to their own determinations, and the right of young Iowa student John Tinker to protest a controversial war, and Myra Bradwell’s right, as a woman, to become an attorney in Illinois were all defended by members of my profession. 

            I’m proud that guarantees of due process and the rights to own property free from government confiscation are protected in the courts of our country every day and everywhere, often without fanfare and sometimes without compensation, by lawyers.  For we prove to ourselves again and again that when it comes to the basic rights and freedoms guaranteed by one of the greatest documents ever written, we – not foreign governments –can be our own worst enemy.

            On September 19, 1985, I stood in a courtroom before the Honorable Edwin S. Preston and took an oath to “be faithful and bear true allegiance” to our state and federal laws and constitutional powers and to “truly and honestly demean myself” as an attorney.  And as I sit here today, reflecting on my first 25 years as a member of the bar of the great state of North Carolina, I hope my record reflects that I have lived up to my oath.  And I hope that my next quarter century gives me every opportunity to do the same.

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             I divide my life into two parts – the period when the comic strip Calvin & Hobbes graced my morning newspaper . . . and all other times.

             In June 1992 I clipped (and still have) a strip where Calvin declares “This town just ain’t big enough for the both of us.” But in the next panel he ponders what to do to win control because his mom won’t let them play with guns.  Hobbes, his pet tiger, immediately announces his solution, proclaiming “I get to be the zoning board.”

             The “zoning board” in every state that I am aware of, is a generic term for one of three creatures: the advisory planning board, the elected body making a zoning decision, and the Board of Adjustment.

             Side Bar. If you’re feeling mischievous and want to see a planner or land use attorney cringe like some folks do when fingernails are scraped across a blackboard, repeatedly pluralize the term by calling it the Board of Adjustments. There is no “s” on the end of “Adjustment,” and the correct plural form is with an “s” after “Board,” with the sole exception being when you use its acronym, “BOA”, in which case the plural is “BOAs.”  End Side Bar.

            I’ve never done a calculation, but a high percentage of appellate cases in North Carolina are from Boards of Adjustment.  The most recent opinion is the August 17 Meier v. Charlotte Zoning Board of Adjustment which, though not momentous, provides a glimpse into one of the key roles of BOAs.

             Boards of adjustment are created by statute. For cities, the statute is G.S. 160A-388, and for counties it’s 153A-345.  Their duties are specifically enumerated, and one of those duties is to serve as a local appeals court when someone charged with interpreting the local zoning ordinance interprets it in a way you believe is incorrect. 

             Attorneys expect to lose these appeals at the board of adjustment and tend to view them as just a necessary step to proceed to the next level of appeal into superior court, where the superior court judge acts as an appellate judge reviewing the board’s decision. 

            As a general rule, when it comes to appeals of a zoning administrator’s decision, BOAs are not considered level playing fields.  Why?  Because except for a very few large cities where board compositions include attorneys and developers and former planners, boards of adjustment tend to be comprised of well-meaning men and women with low to moderate civic profiles who, the day before their appointment, had never heard of the board of adjustment, knew nothing about zoning or zoning principles or concepts, had never read their own town’s zoning ordinance, and had never sat on a board with power to control peoples’ destinies and fortunes.  Everything they know, as a board member, was taught to them by the planner assigned to the BOA.  They learn to follow the planner’s lead.  In many cases they’re scared not to.  And when the board’s planner or his/her department is challenged, they circle the wagons.

             Which is not to say that planners are usually wrong.  As another general rule, planners often have to make a decision based upon an ordinance lacking in clarity and that was not written with the presented facts in mind, and they usually do a pretty darn good job.

             The recently decided Meier case involved a man (Mr. Meier) who thought a house being built next door was too tall, so he challenged the height by contacting the Charlotte planning department.

             Mr. Meier sought an ordinance interpretation on the proper method of calculating a building’s height from Keith MacVean, then the zoning administrator.  Mr. MacVean responded with a letter interpreting the ordinance. Mr. Meier, however, didn’t appeal Mr. MacVean’s opinion on how the ordinance should be interpreted until after 30 had passed.  The BOA dismissed the appeal as having been untimely filed, but a superior court judge, on appeal, held that the appeal was timely.  The Court of Appeals reversed the superior court judge and found that the BOA correctly dismissed the case because the appeal was untimely.

             The case affirms a well-known principle.  If someone charged with interpreting a zoning ordinance makes an actual and identifiable interpretation, and the local ordinance tell you how long you have to appeal to the board of adjustment, then “the appeal period begins to run as soon as the aggrieved party receives actual or constructive notice of the interpretative decision.”

 Color Commentary

                      Attorneys make way too much money off of property owners who failed or never took Human Relations 101 and who choose to fight “legal” battles or start nitpicky wars with the folks next door whose driveway connects, who they see everyday when watering the shrubbery, and whose children come over to play.  In my humblest opinion, these battles are never worth it.  Never.

             Additionally, this is yet one more well-written and well-structured opinion by Judge Ervin, son of a former judge of the United States Court of Appeals for the 4th circuit and grandson of a former justice of the N.C. Supreme Court (and U.S. Senator).  His opinion is also filled with numerous footnotes that lay bread crumbs for lawyers like me who need to interpret in later cases exactly what was decided.  We need more judges like him.

             Second Side Bar.  In case you wonder if the last paragraph is self-serving, Judge Ervin falls into the category of acquaintances who, if I saw him out of context, I would extend the courtesy of reminding him my name. He has never decided one of my cases, and I have no cases in the Court of Appeals at this time.  End Second Side Bar.

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            If you’ve ever been forced to make a decision or take a stand while frightened or anxious, then this blog post is for you.  After all, the ownership and use and memories of land and “place” evoke strong emotions.  You probably won’t study the emotional aspects of land in a law school or urban planning class, but human emotions permeate every dirt clod and every tree on every acre of land you know.

            Land use, like the political cauldrons in which land use decisions are made, does not always follow logical and linear decision-making processes.  We study the legal and logical aspects of land in our universities, but the critical decisions that affect its development and changes are propelled, more often than not, through emotional decision-making.  I’ve written and spoken about this relatively unexplored phenomenon on many occasions.  The world of litigation is full of studies on how and why juries do as juries do.  Although they probably exist, I’ve never seen similar academic studies of how and why elected officials make certain decisions on land use following presentations at public hearings.

            When we do study the emotional aspects of land use, chances are the fears and anxieties are hidden behind surrogate issues and the fearful and the anxious are elevated in stature by calling them “stakeholders,” almost as if they had an equal right to the use of the land as the person who owns it.

            This past Sunday New York Times columnist Nicholas Kristof blogged about public decisions being made because of fears of Islam (“Is Islamophobia the New Hysteria”), much the same as actions that were taken over the decades and centuries against Catholics and Germans and Mormons and Irish and Jews and Japanese where “fear spread in part because of misinformation.” When we are scared, he reminds us, we can do unconscionable things.

            Fear motivates.  But fear also blinds.

            Humans are humans, whether the perceived threat is religious or ethnic or an invasion from “outsiders” who want to impose some sort of control over the community’s land, as I wrote in my most recent post (Where Do You Shoot YOUR Machine Guns?)

            In land use, the public perception of change is too often guided by misunderstandings of facts, by fears and distrusts, and by the amplification of these misunderstandings and emotions as they proceed with urgency through the community rumor mills. 

             Elected officials who listen too closely to literal expressions of positions can reach inaccurate understandings of what is communicated.  For example, the key information provided at a hearing is sometimes based upon facts that don’t exist, and the opinions expressed are fears of change or fears of the unknown that are without foundation or any rational relationship to the project.  And sometimes the most important input is from what is not said rather than what is said.  Perhaps worse, the decision made may have less to do with the proposal itself than with preservation of the elected person’s relationship with the electorate.

             Writer’s Note: I get four to five times as many personal comments by email as I do “open” comments on blog posts, and I appreciate them in whatever form they come.  The posts which I seem to get the most input (and the least criticism) on have been posts where I have discussed the human rather than legal components of land use.  Today’s post presents nothing that I haven’t written about in this space before, but the Kristof editorial made me sit up, whisper “amen,” and move to the keyboard. 

             Additionally, I have received quite a few comments from folks about the immediately preceding post on the outdoor shooting range in the Village of Wesley Chapel (one of which was from Dave Neill, a land use attorney I work with).  Most of the commentators pointed out that the shooting range was there first.  Each of them is correct.  It was there first, and that fact was prominently noted in the post (third paragraph).  But Dave made a further comment that was especially insightful.  On the issue of losing vested rights status because of making material alterations, would it not have been an injustice, he asked, if the alterations were done to make the range safer and more compatible, but the landowner was then penalized by losing his rights simply because he was trying to be a safer and kinder and better neighbor. His point was well made and I thought worth passing along.

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            Please raise your hand if, in your humblest opinion, you think an outdoor shooting range (where fully automatic machine guns are used that shoot 900 rounds per minute) is an appropriate land use immediately adjacent to a subdivision.  Anybody? 

             I didn’t think so.

             But the North Carolina Court of Appeals has just given a green light to this insane juxtaposition of land uses in Land v. The Village of Wesley Chapel, yet another vested rights case that falls on the facts and nuances of local ordinances. And, of course, by describing it as a “vested rights” case you probably, and correctly, assumed immediately one critical fact: the shooting range was there first.

            Before I write more I should place my cards on the table.  Although I was not involved in the litigation of this matter, I did briefly represent some of the neighbors.  I was paid for that. 

            Side Bar: Journalists used to call this their “Armstrong Williams disclosure” after the Washington Post columnist was paid a quarter of a million dollars of taxpayer money (funneled through a PR firm) to write columns favoring President Bush’s No Child Left Behind law without disclosing the payments. I continue to follow the case and to communicate with neighbors whose plight I fully understand. The difference, of course, is that I write this blog for free.  Nonetheless, disclosure made. End Side Bar.

            The legal questions were whether the shooting range was classified as a use in Union County’s Table of Permitted Uses when Mr. Land bought the property in 1991, whether Mr. Land was required to obtain a special use permit under that ordinance, and whether Mr. Land “materially” altered the range to a degree that he lost his vested rights status after the incorporation of The Village of Wesley Chapel.

            As to those questions, the court held, upon de novo review, that if a use is not listed in a Table of Permitted Uses a member of the public cannot be left to guess whether his use is legal or not, and if there is ambiguity or doubt the tie is always to the runner (or the property owner).  Additionally, the materiality threshold was not met.

            But the question before the court is not the same thing as the issue before the community.  And the issue in this case was resistance to change wrought by outsiders who aren’t “one of us”.  I know.  I was there.

            The Board of Adjustment case that preceded this litigation followed the Village of Wesley Chapel’s attempt to adopt an ordinance banning shooting ranges.  Supporting the proposed ordinance at the public hearing were neighbors who could hear the shooting at all hours, one of whom held up a bullet slug dug from a tree in his backyard.  Opposing the ordinance were folks from all over the county who viscerally felt that their once-rural county had been invaded by Charlotte-employed bankers and accountants – no doubt all perceived as refugees from north of the Mason Dixon Line – who wanted Union County’s old ways to give in to their new order. 

            To these locals it wasn’t about land use.  It was about their way of life, real or perceived.

            Change and economic transition may bring new jobs or better roads and schools.  But when change threatens self-identity and unravels the local mythology of the community’s origin and purpose, those who are unable to accommodate the shifting sands will start digging the trenches and rolling out the canons.

            I would pay a great sum for a video of the approximately 15 year-old kid who wagged his finger and insolently lectured the neighbors and newcomers he called “you people.” 

            Old ways versus new.  Insider versus outsider. South versus north. Individual rights versus collective good.  It was a clash of two cultures, only this time Sherman’s army was turned back, and not with guns but with a lawyer’s argument and legal briefs.

            In a perfect world, such collisions never occur. Open air shooting ranges for machine guns are never allowed next to subdivisions.  But the world is not perfect, and growth and transitions occur in rough starts, unplanned stops, and at the ragged whims of planning boards and elected bodies.

            In almost every community you and I know, the adopted comprehensive plan is a well-considered document where land use transitions are gradual and logical, but they are overlays upon existing uses that weren’t so logically planned and where uses that made sense 40 years ago have become vested.  I know a planner who has been working for eons on a 65,000 acre project in a distant state, an entire city planned from scratch.  What an exciting opportunity to prevent in advance all the problems with land use that evolve over time everywhere else.  And a decade or more from now that planner will be able to drive into the “city” and survey the creation. Daunting or exhilarating?  You decide.

Color Commentary

            This opinion was written by the same judge (Robert N. Hunter) who wrote the opinion in the now-famous impact fee case, Amward Homes v. Town of Cary. Judge Hunter has established himself in his short judicial tenure as a conservative property rights judge.  Ironically, he is also establishing his willingness to stray into judicial activism, something he would publicly disavow, but this and a few other cases suggest otherwise.

            The question whether Mr. Land lost his vested rights by materially altering his shooting range was answered by the local ordinance, which defines “material” as more than 50% of the replacement cost at the time of the alteration.  The ordinance clearly, in context, means replacement cost of the structure. But Judge Hunter rewrites the ordinance to add the cost of the land.

            More interesting is the fact that the NRA paid for the petitioner’s litigation.  I’ve seen a letter from Mr. Land’s attorney in the town’s files where he discusses his costs and fees to the NRA.  When our nonpartisan judicial elections, despite all intentions, become subjected to partisan and single issue voting, judges become sensitive. And I do too.  Were these judges worried that the NRA would target them if they decided otherwise?  Because they made the NRA happy, we’ll never know.

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