Is it Really the Zoning? Or Do You Just Not Like “Those People”?
As a quarter-century veteran of land use battles in every corner of this state there’s little I haven’t heard. But this much I know. What people think is often not reflected in what they say at the public podium.
And being a veteran Southerner in my mid-fifties, I have decently honed skills in recognizing coded language, when people sanitize the thoughts and language freely expressed around the privacy and sanctity of the kitchen table in order to say-without-actually saying what they want a board to hear (and which boards – at one level or another – are good at hearing). Racial code words used to be prevalent in land use public hearings. More often than not it’s now fear that Hispanics are moving into “our” neighborhood.
After all, there are no limits to what we fear and what we think, but our uttered words and sentences wear the shackles of social and political propriety.
Recent litigation in Nash County offered excellent behind-the-scenes glimpses of what folks say in one context but describe differently when being deposed and under oath in what feels like a private conversation in a small room with an opposing lawyer. And now that the Court of Appeals has decided the case, I’d like to share with you what some of the plaintiffs said under oath.
In cases where standing is contested, courts have little choice but to accept at face value what citizens claim at public hearings. While I’ve written and spoken about this phenomenon for years, the Morgan v. Nash case recently decided by the Court of Appeals amply illustrates my point.
I do not quote plaintiffs to ridicule them. I do it because it is so rare that zoning case plaintiffs are deposed on matters related to standing and where their true feelings are plumbed.
In this case, the City of Wilson and 34 individual plaintiffs sued Nash County over a zoning decision that could enable a Mississippi company to build a chicken processing plant. Street level comments – reported to me by many – were heavily peppered with comments about the Hispanic workers the plant would attract to the area.
But when the same folks who say one thing on the street came to speak at public hearings, they suddenly became lifelong environmentalists concerned only about industrial impacts to water, air and soil.
In fact, two Nash County officials explained to me at the beginning of litigation that part of Wilson’s concern, as expressed by its mayor in a private meeting, was that Nash would get the tax base while Wilson would only get what he called the “social costs.” Under direct examination before a court reporter he denied that he said it.
What did plaintiffs say behind closed doors?
But what did the plaintiffs say behind closed doors? Following are some direct quotes from lawsuit depositions that illustrate my point. These depositions are public documents and available for anyone to read. All of the plaintiffs are white. Most of them live in a rural and somewhat upscale subdivision over two miles away. It was clear that many of them wanted to protect their end of the county as a segregated place where only “people like us” (my phrase) can live.
Notably, nowhere in my deposition outline did I plan to ask – or ask without invitation – any question related to racial, xenophobic or similar fears. The following comments were simply volunteered, but I did follow up what they initiated.
Let’s start with Faye Daniel who did not live in the distant subdivision but just under a mile away from the rezoning site. She made it clear that she thought “GI [zoning] is going to change the complexion of our community.” [Note: in fairness, the court reporter wrote “complex” but the comment was “complexion.”]
Daniel: But . . . these jobs are not going to be held very long by local people. It’s going to bring in illegal citizens probably . . . Unfortunately they’re going to end up being dependent upon Social Services. . . . And it’s just going to be a detriment to our community where we don’t have a higher quality . . .
Terrell: What I hear you say is that a large part of your opposition is to the type of people?
Daniel: Yes, that is it, and these people are brought in to do this work. Many of them are Hispanic people . . .
Terrell: Would they lead to some of the – any crime increase?
Daniel: Oh yes. Knightdale was loaded with crime.
Terrell: From Hispanics?
Daniel: Uh-huh. Oh, yes. I was protected by a gang.
Terrell: When you taught? [She had been a teacher in Knightdale]
Daniel: Yes . . .
Terrell: And would you also be worried that they would be looking for places to live in the community?
Daniel Cantu lived 2.187 miles from the zoning site. As the lawyer asking him questions, I admit that he pushed one of my very pushable buttons when he proclaimed that he moved into this rural agricultural area expecting not to hear farm tractors and smell the odor of farm animals.
He opined that the rezoning will bring the “traffic of crime” and “trailer parks and those type (sic) of people that are going to be the bulk of the low paying jobs there.”
Cantu: Well. This side of the county where we live (emphasis added)
Terrell: What do you mean . . . people with higher income?
Cantu: Yes . . . People who are going to work here are going to probably want to live close to it . . . which is around where these nice neighborhoods are and where we live.”
John Leposa lived exactly 2 miles away from the site. He was fearful that “different demographics” (his term) making up what he anticipated would be Sanderson’s work force would bring crime to his neighborhood.
Ms. Williamson lived 2.08 miles away. She works at Wilson Community College but also has a real estate broker’s license and was keenly aware of the legal prohibitions against describing a neighborhood as “changing” (i.e. integrating) or mentioning racial or ethnic groups. In the dialogue that follows, the topic is raised by Wilson’s attorney, T.C. Morphis. The underlying issue, of course, was whether plaintiffs in Ms. Williamson’s neighborhood had standing. I believe T.C. was unprepared for her answers.
Morphis: You said you still have a valid real estate broker’s license, is that right?
Williamson: I do.
. . .
Morphis: Now, is it important when you’re trying to sell property to know about property values?
. . .
Morphis: What influences property values?
Williamson: Things we’re not allowed really to talk about. Good neighborhoods – you can’t really say that to a client.
. . . . .
Terrell: What makes a neighborhood good or bad?
Williamson: Things like traffic, and . . . [very long pause]
Terrell: When you say “those things you can’t talk about,” what are those things?
Williamson: I’m not even going to go there. Let’s not even . . .
Terrell: Are you talking about black people and Hispanic people?
Williamson: We don’t talk about stuff like that.
Terrell: So you don’t talk about black people or Hispanic people?
. . .
Terrell: Is income level one of them?
Williamson: Income level?
Terrell: Then what else? You had a plural list. [a long pause that reached perhaps two minutes followed this question while I sat and waited]
Williamson: Rednecks. That’s all I’ve got to say.
Were plaintiffs truly concerned about the environment?
To bolster my point that plaintiffs’ claims of environmental damage from Sanderson’s plant were chicken poop at best, following are some selected testimonies from plaintiffs’ depositions. No plaintiff could do anything more than repeat a general theory they had overheard that a chicken processing plant (or other industrial use) would have a negative environmental impact.
Kevin Bright lived 2.864 miles from the rezoning site, the farthest of any plaintiff. He lives on the banks of the Tar River and regularly fertilizes his yard.
Terrell: So you don’t want GI zoning close to where you live?
Bright: I don’t want it because it’s in the protected watershed, and in proximity to our water supply, our drinking water supply in the reservoir.
. . .
Terrell: But you don’t drink the water. Your water . . . comes from a well.
Bright: Well, it comes from the well. It comes out of the ground.
Terrell: So you’re telling me that 2.864 miles away is a potential for some type of a groundwater contamination occurring [that affects you].?
Bright: Sure. Sure.
Terrell: Based on what?
Bright: Based on proximity to the river.
Terrell: But you don’t drink from the river.
Bright: Well, I don’t know that for certain. But I’m saying that the contamination of the water supply is very likely.
. . .
Terrell: Your well water is separate from the surface water, is it not?
Bright: I don’t know.
Terrell: Do you have any idea what all that nitrogen that you put on your grass is doing to the river?
Bright: I have no idea.
Terrell: Why shouldn’t this 150 acres be [rezoned] exactly like your subdivision’s been [rezoned]?
S. Bright: This is a protected watershed.
Terrell: Yours is not? You’re on the water . . . Why am I not figuring this one out?
S. Bright: Ask the question again?
Some plaintiffs complained about noise pollution from an industry that would be located over 2 miles away. One of them was George DeSanto who had recently moved to Nash County from New Jersey.
Why? Mr. DeSanto stated, in all seriousness and oblivious to the irony, that he moved to Nash County because he wanted a quiet place to ride his [loud] motorcycle.
In addition to environmental concerns from any industry moving into the southern part of the county, Mr. Lybrand wanted to keep out farms!
Terrell: Does it bother you that there are farmlands all around you?
Terrell: You’re not worried if a dairy farm came in?
Lybrand: Yes, that would worry me.
Mr. Lybrand wasn’t the only one who moved into a rural area but didn’t want to be near farms. Plaintiff Gail Sullivan stated that she would attend a public hearing to protest a planned horse or cattle farm because of the odor and flies.
Was the Rezoned Tract in Their Neighborhood?
Standing to be a plaintiff is a fact specific inquiry, and one of the questions I put to most plaintiffs was whether they knew any of the individuals who lived on property adjoining the rezoning site. Not a single plaintiff (of approximately 25) who lived in the distant subdivision knew any of their “neighbors” over two miles away. Following is a typical exchange where I asked one of the plaintiffs (in this case, Joe Lybrand) why he considered the rezoning site over two miles away to be his neighborhood:
Terrell: You don’t know Roger Parker, do you?
Terrell: You don’t know Ada Morgan, do you?
Terrell: You don’t know Judith or David Scull, do you?
Terrell: You don’t know Cecil or Bertine Williams, do you?
Terrell: You don’t even know Faye Daniel?
Lybrand: No, and I get Faye doesn’t know me, either.
Terrell: And you don’t know Jean Bissette, do you?
Terrell: In fact, you don’t know anybody who lives up on Tar River Church Road, do you?
Lybrand: I have a co-worker who has a father who lives on that road.
Terrell: But you don’t know him.
Terrell: The fact is, you don’t even consider the area where Tar River Church Road comes into 97 to be your community, do you?
Lybrand: Sure I do.
Terrell: You don’t know anybody who lives up there.
To be clear, I don’t suggest that all land use opponents hide behind the environment when their real concern is one that cannot be stated publicly. I do suggest, however, that such disingenuous statements are common, and board members should listen carefully to what is said and not said.
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