American counties and towns are peppered with an unusual governmental creature called the “Board of Adjustment.” BOA functions may vary state to state, but they are the focal point for some of the most far-reaching land use decisions made by local governments.
In North Carolina, Boards of Adjustment can issue subpoenas much the same as lawyers can issue subpoenas within the General Court of Justice (the trial courts). Subpoenas are a necessary power because BOA’s function as quasi-courts.
But there are no statutes or rules that tell Boards how they can issue subpoenas and no cases that have interpreted the BOA statutes that grant this authority. More importantly, it’s not the board but the parties who need this power because it’s the parties who have the burden of proof and the burden of producing evidence.
To my knowledge, there have been no scholarly (or unscholarly) articles written about the Board of Adjustment subpoena in North Carolina, but I’m ready for somebody to show me one.
Two weeks ago I published what I think is the first article on this topic in Land Use Law Quarterly, using that forum to challenge the enabling statutes and to ask for needed clarifications. Attached is a suggested form if you need to issue or request the issuance of a subpoena.
Enjoy my Land Use Law Quarterly article article below:
The Board of Adjustment Subpoena – Calling for a Statutory Rewrite
Overview
American jurisprudence is an adversarial system in which one party has a burden of proof. Along with the burden of proof comes commensurate power in the hands of the parties to compel the production of evidence. Without this power the burden is meaningless.
As officers of the court, attorneys are authorized by statute to subpoena witnesses to attend depositions and hearings and to require document production relevant to the controversy. As hearings proceed, attorneys – not judges – control the fact finding process, and the judge’s role is to act as arbiter of evidentiary disputes.
This adversarial system, controlled by the parties rather than the court, is an element of the Common Law system that arose out of England and spread to its colonies.
Surprisingly, our board of adjustment enabling statutes incorporate provisions of a Civil Law system where only the board itself, as judge, is granted the power to compel the production of witnesses and documents. The burden of proof, however, remains with the parties.
The Civil Law system is derived from Roman law and is practiced in various forms throughout most of Europe and other parts of the world. Broadly described, in Civil Law courts the judge directs the production of evidence, decides which questions witnesses are asked and determines the flow of the proceeding.
Our Statutes Don’t Work
City and county boards of adjustment are granted the power to issue subpoenas in N.C.G.S. §§ 160A-388 and 153A-345. The wording in each statute is identical, as follows:
“The board of adjustment may subpoena witnesses and compel the production of evidence. If a person fails or refuses to obey a subpoena issued pursuant to this subsection, the board of adjustment may apply to the General Court of Justice for an order requiring that its order be obeyed, and the court shall have jurisdiction to issue these orders after notice to all proper parties.”
Prior to 2005, county boards were not extended this power for reasons no one seemed to be able to explain. When both board of adjustment sections were revised in 2005, boards of adjustment still had only the power to subpoena without the power to enforce.
Lost in the revision and debate, however, was one essential fact: it’s not the board that needs this power. The party with the burden of proof is the one who needs this power when appearing before these quasi-judicial bodies.
The need to place subpoena power in the hands of the parties can be paramount when the party is challenging governmental action. In the case of a challenge to a zoning administrator’s interpretation of an ordinance or a zoning enforcement officer’s decision finding a notice of violation, the local government has no duty whatsoever to make sure that the administrator or enforcement office are present for cross-examination.
In the case of special and conditional use permits where many of the issues are technical or scientific, the need to compel the attendance of witnesses or the production of documents in third parties’ possession can be critical.
The problems here are twofold: First, the power to compel attendance or document production is in the hand of the wrong entity. The board doesn’t need this power to perform its function, but the party with the burden of proof does. Second, there is no statutory procedure by which the party who needs the board to exercise its subpoena power can appeal to the board to do it.
Statutory Amendments are Needed
Statutory amendments should be in one of two forms.
The first potential change would be to recognize the unique and hybrid form of governmental body we have created in boards of adjustment and to grant attorneys the power to issue subpoenas in this context. The advantage of this change is that subpoenas can be issued quickly and efficiently by officers of the court knowledgeable of the process.
The disadvantage is that citizens appearing without legal counsel would not have the same statutory authority. However, this is not a new issue because citizens appearing pro se in the General Court of Justice don’t have subpoena powers either. Citizens who choose to appear pro se could simply appeal to the board to issue the same subpoena an attorney would.
The second potential change is to clarify G.S. 153A-345 and 160A-388 to establish a procedure by which parties may request the issuance of subpoenas and to make it abundantly clear that it is a nondiscretionary administrative function performed by the board chair.
If the issuance requires board action, then parties will have to wait until the next board meeting – the meeting when the matter is most likely to be scheduled for hearing – in order to get a subpoena issued, and by that time it is too late. The hearing will have to be postponed until the next meeting a month later. Such a cumbersome procedure would be riddled with both inefficiency and frustration and we can do better than that.
Scroll down to read recent posts. Click on topics of interest in the right hand column for other posts. For email alerts on new posts, click the “sign me up” button above. And forward to others who might be interested.
The Sound of Chirping Birds
On a few occasions I’ve used this blog to comment on the economy that undergirds land development and growth. Two years ago, I woke up on New Year’s Day and, reflecting on the economic carnage we all had witnessed during 2009, wrote a post that captured what it felt like to have been in a profession that was bloodied and bruised by an army we never saw coming over the hill. Those of us with clients in the land development business seemed to carry more body bags than other industries did.
I ended that post on note of mild optimism with these words:
“So today, January 1, step with me into 2010. If you come through the door with me the brass section won’t play and the champagne won’t flow, but I can promise that the sun will come up, and if we wait awhile we’ll soon hear chirping birds.”
Little did I know how long the night would last. But I’m listening closely, and I believe I hear the distant sound of chirping birds. I’m looking hard and seeing the faint glow of a sun about to rise.
Economists can debate numbers on graphs, but I look at newspaper headlines, the upticks in numbers of filings for rezonings, new client activity, and smiles on realtors’ faces. I notice local giving to nonprofits and gauge activities of new companies in town.
You can talk about the Euro and GNP and the Dow Jones all you want, but I believe the sun is rising.
To read my January 1, 2010 post in the original, click here. To read it without the extra click, read below:
Ringing in the New Year with Appropriate Punctuation
Happy New Year.
I’m sure that’s the first time I’ve written that phrase without the usual and somewhat clichéd exclamation point. New Year’s Eve celebrations have a sense of falsity about them anyway. Mildly fake revelry. A feeling that we’re required to stay awake two hours past normal bedtime although we’re really not sure why.
Today I just want to ease open the door to 2010, pause quietly as I glance back at the worst economic year of my lifetime, and step unnoticed into the New Year.
That quick, backward glance is not pretty. It provides no reason to linger unless you’re the driver who rubbernecks at highway carnage.
This year we were reminded that a capitalist economy has contractions, but the tidal ebb was different this time because the root causes did not seem to be part of the natural order of things. There was a feeling that those who controlled our banks and investment houses – folks who should have been on “our” team – betrayed us and became economic terrorists.
The aftermath left us bewildered and angry. Bank failures. Layoffs. Personal and corporate bankruptcies. Depleted retirement funds and crippled university endowments.
Civil discourse was rare as the pundit class, followed by legions of letter-to-the-editor writers, flooded the streets. Republicans blamed Clinton and developed apoplexy at the Democratic spending spree that was supposed to right our ship. Democrats viciously accused the Republicans who controlled all three branches of government for most of the preceding eight years.
If there ever was a year when the center did not hold, when the falcon broke from his master’s perch and W.B. Yeats’ beast slouched towards Bethlehem to be born, this was that year.
We scoff at folks who make victimhood their walking screen saver, yet “victim” seems to be an appropriate adjective to capture the flavor of a year when millions of people who didn’t deserve what happened to them had to suffer through a crisis that thousands of Wharton grads and Harvard MBAs did not foresee, and, to a great extent, caused.
Last night we shared New Year’s Eve with several friends, including one of the nicest guys I know who was informed in early December that his large law firm was downsizing again. His last day in the office was yesterday, but his mortgage and college tuition payments still come due. In my perfect world, brains, kindness, honest dealings and a great work ethic should not be rewarded with a pink slip.
The recession that we label “2009” really started in 2008 and will continue into 2010. The date change makes a difference only to the extent that the economy is driven by the human psyche. Our social myth – and a myth with great power – is that January 1 is more than just another day. It’s a day we set aside for hope. It’s an opportunity for a new start. It’s that one moment on the calendar when we feel that our willpower can control our destiny.
So today, January 1, step with me into 2010. If you come through the door with me the brass section won’t play and the champagne won’t flow, but I can promise that the sun will come up, and if we wait awhile we’ll soon hear chirping birds.
Scroll down to read recent posts. Click on topics of interest in the right hand column for other posts. For email alerts on new posts, click the “sign me up” button above. And forward to others who might be interested.
Apparently we have to wait a bit longer for a final answer to the state’s million dollar question: can schools be funded by assessing developers an “impact fee.”? The latest non-answer was recently published in the N.C. Supreme Court’s non-decision in the Cary-originated Amward Homes case.
I’ve covered this issue in numerous previous posts, including my first Amward Homes commentary in Can you Hear Me Now – Impact Fees are Not Allowed by Law, and my second Amward commentary in APFOs – They’re Back.
A short synopsis of the primary question raised by the Cary controversy (found in detail at the above links) is this: can planners and elected officials strong-arm developers into “offering” impact fees in order to get official blessings on new subdivisions, especially when nobody with integrity would claim with a straight face that the “offer” was anything more than a response to extortion?
A synopsis of the Court of Appeals answer (authored by Judge Robert Hunter from Greensboro) is this: NO.
What Happened to Amward on Appeal?
The Amward Homes decision in the Court of Appeals was unanimous, meaning all three judges agreed with the holding, although Judge Jackson added a further comment that she thought the appeal was “interlocutory,” or premature. When Court of Appeals decisions are unanimous, the only way to get your case before the N.C. Supreme Court is to petition for what is called “discretionary review.” And the high court’s discretion in 95% of its requests is not to touch the lower court decision.
But Amward was accepted for review, and the Supreme Court’s decision was limited to three sentences: “Justice Jackson took no part in the consideration or decision of this case. The remaining members of the Court are equally divided, with three members voting to reverse and three members voting to affirm the decision of the Court of Appeals. Accordingly, the decision of the Court of Appeals is left undisturbed and stands without precedential value.”
Confused? Let me Translate
Justice Jackson was a member of the Court of Appeals panel that decided Amward in 2010, but she was then elected to the state Supreme Court. It would be improper in many respects for her to hear on appeal a decision she rendered below.
Because the remaining justices were three for and three against, there weren’t enough votes to overturn or affirm the Court of Appeals decision. Consequently, it stands as written and is binding only on the parties before the court. However, it also “stands without precedential value.”
“Precedential value” is a slippery term. What it really means is that the developers’ victory and Cary’s loss (including Cary’s obligation to pay the developers’ attorneys fees is undisturbed. However, the decision is not “binding authority” on future courts in other but similar matters (that is, future courts may ignore it). Nonetheless, the reasoning in the opinion certainly can be used as “persuasive authority” which a court may consider.
Precedent versus persuasiveness. There’s a difference, but it’s sometimes thin.
Are There Any Tea Leaves for Future Decisions?
You bet.
As long as the N.C. Supreme Court maintains it current composition, future cases (I predict) will face a Court that disfavors impact fees by at least a 4-3 margin.
Justice Jackson not only sided with the developers in Amward Homes, but she authored the Union County impact fee case (Union Land Owners v. Union County) that struck down Union County’s attempt to impose an APFO. Based on past opinions, Justice Jackson has demonstrated a judicial philosophy that courts must keep a watchful eye on local governments seeking creative ways to use newfound powers to levy fees and taxes and to make sure those powers are properly exercised and not beyond clear statutory authority.
I like that.
Scroll down to read previous blog posts or click on a category of interest in the right hand column. To be alerted by email 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.
If your knowledge of land use theory comes from a textbook you might think zoning is about the right and logical use of land. But if your knowledge comes from life in the zoning battle trenches where bullets fly fast and shrapnel wounds are common, you know that zoning decisions often have more to do with the human psyche – our fears of the unknown, our petty prejudices, and our deep-seated need to protect our territory from invasion.
Occasionally I will hear about – or be involved with – battles where those who complain the loudest about the use of land are folks who “came to the nuisance,” if the use, in fact, is a nuisance at all.
The classic example in the Triad involved a rezoning adjacent to the Greensboro airport. The Airport Authority all but begged the Guilford County Board of Commissioners not to allow a proposed subdivision because it was directly in the path of the airport’s next and planned runway. The commissioners approved the rezoning anyway.
When the Airport Authority announced that the runway, in fact, would be built and that FedEx planes would be using it, who do you think cried foul and sued to stop it? That’s right. Residents in the subdivision who knew they were building/buying next to an expanding airport.
Yesterday I learned of a recent battle in Mecklenburg County that interested me partly because it involved neighbors’ complaints of farm odors and an environmentally-needed, green, recycling operation where everything from leaves, to vegetables to animal waste is converted into the mulch and soil materials you buy at any garden store.
And it also interested me because it was a classic “move to the nuisance and then complain” story. In this case, all the complaining neighbors moved into subdivisions that sprang up around the already existing farm operation and then complained that manure and natural organic mulching odors are objectionable.
You can read about Wallace Farms here. Their seven-generation farm operation (dating back to 1863) has grown and expanded over the years, and it was no secret that it existed. And you can read about some of its battles with the City of Charlotte and NC DENR that began with complaints from neighbors at this link.
I’m sure there are other perspectives and that the City of Charlotte might protest Mr. Wallace’s description of its Gestapo tactics when trying to close him down as a result of neighbors’ complaints. However, the best third-party corroboration that new neighbors moved in and then complained can be found if you Google “Wallace Farms” and kept scrolling to find a link to a website where neighbors communicate among themselves about it.
Like many of you, I have limited patience with folks who choose to create urban lives in rural areas then complain that existing farms have odors, generate dust, and often have tractors running sunup to sundown. And the same principle applies to any one who chooses to move next to an airport or a landfill, and then complains about it.
Side Bar: One of my many [nerdish?] habits is that I love to drop 50¢ in local newsstand boxes across the state to see what land use issues are making local headlines.
This was a word of mouth story that I went online to check out. Eric Wallace of Wallace Farms, it turns out, coaches a little league baseball team whose fifth grade second baseman is Hayden Murdock. Hayden’s dad, Eric, is an executive at Wells Fargo who owns a Christmas tree farm and takes time each December to sell Christmas trees from his family’s farm at a lot in High Point. Eric remembers every thing about every customer year to year and, recalling that I live my life in battles over the right and best use of land, told me this story.
To read previous blog posts, continue to scroll down or click on a category of interest in the right hand column. To be alerted by email 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.
Zoning Appeals and Statutes of Limitation
If you’ve ever wondered what frightens lawyers and keeps them up at night I can describe it in three words: statutes of limitations.
A “statute of limitation” is a fancy way of describing a deadline to file a lawsuit. That’s all it is. The problems with these deadlines are that 1) they sometimes are unclear and 2) they are totally and completely inflexible.
For example, the deadline to file an action challenging a legislative zoning decision is two months. How clear is that? “Two months” can’t be a shorthand way of saying “60 days” because 60 days is just as short and it’s much better defined. And if your action begins in January, do you get an extra two – or three – days to compensate for February’s short month? Actually, nobody knows.
With quasi-judicial decisions, the rule is not the vague “one month” but the precise 30 days, and it’s codified in N.C. Gen. Stat. § 160A-388(e2) as follows:
”Any petition for review by the superior court shall be filed with the clerk of superior court within 30 days after the decision of the board is filed in such office as the ordinance specifies, or after a written copy is delivered to every aggrieved party who has filed a written request for such copy with the secretary or chairman of the board at the time of the hearing of the case, whichever is later.”
The N.C. Court of Appeals recently published a case clarifying when the 30 days begins to run and affirming the strict 30 day cut-off when appealing from a quasi-judicial decision.
In McCrann v. Village of Pinehurst, The Village Chapel requested a special use permit to construct a “learning center.” The relevant dates (all in 2010) are as follows:
July 2 and 6 – Pinehurst Village Council hearing dates
August 24 – Village Council votes to issue the permit but doesn’t yet prepare an order
August 25 – Petitioner McCrann leaves voicemail with Pinehurst’s attorney requesting a copy of the written order
August 30 – special use permit filed and copies mailed and faxed to Mr. McCrann
September 30 – Petitioners filed a Petition for Writ of Certiorari
Ouch.
August has 31 days, which means that August 30th to September 30th is 31 days, not 30 days. Within 2 weeks the Village and The Village Chapel filed responses alleging that the appeal was time barred. (This is when a lawyer immediately calls his “carrier.”)
Petitioners contended 1) that they “substantially complied” with the 30 day statute of limitations and 2) that because lawyers for all parties had been so cordial and professional that the Village and Village Chapel should be “estopped” from suddenly playing what might seem, to some, to be hardball.
The Court of Appeals was not in a mood to oblige. It noted that the statute was not followed in two key ways. First, no request was made in writing to the chairman or secretary at the time of the hearing, which operates to grant an additional three days. And second, they filed their petition a day late and several thousands of dollars in attorneys’ fees short. “Substantial compliance” might be a good defense for breach of contract, but it doesn’t get you around a statute of limitations deadline.
The court noted that “statutes of limitation are inflexible and unyielding. They operate inexorably without reference to the merits of plaintiff’s cause of action.” Also, “the purpose of a statute of limitations is to afford security against stale demands.”
In other words, dead is dead. (There is no “mostly dead” the term coined by Billy Crystal’s character Miracle Max in The Princess Bride.)
As to the highly original and first-time asserted but-we-were-all-playing-so-nicely-in-the-sandbox defense, the court had limited patience and simply noted that estoppel has a specific definition and this wasn’t it. Case dismissed.
Two other comments.
First, the toughest part of being an appellate judge is deciphering the facts. Briefs often are written by lawyers who don’t know how to tell a story and who immediately convert numerous organizations and parties to confusing acronyms. Timelines are screwy and there is no common plot to which factoids can be attached. (And in land use cases, the facts can be, well, boring to all but the parties involved). Once the facts are figured out, the law is often not that hard.
The facts in this case are uncommonly easy to read and understand, and I’m sure Judge Stephens sat at her desk with the usual printed Record on Appeal and parties’ briefs and thought to herself “I might get home in time for dinner tonight.”
And second, it is always appropriate to disclose any personal connection I have to an opinion I write about. In this case the The Village Chapel was represented by four outstanding lawyers who also are my colleagues in the SML Raleigh office: Clyde Holt, Dave Neill, Brad Risinger and Matt Leerburg.
To read previous blog posts, continue to scroll down or click on a category of interest in the right hand column. To be alerted by email 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.
