By John Peters
April 6, 2014
The ideal of representative government took a pounding in Mount Airy last week, as did the principle of open government.
The Mount Airy Board of Commissioners voted to establish a redevelopment commission, with broad powers largely unchecked by voter control, against an obvious and nearly unanimous local opposition to it. While that is beyond troublesome, and certainly calls for additional comment, another item the commissioners tackled screams for more immediate additional scrutiny.
The board, on a 2-1 vote, passed a rezoning request by Flatiron Group Inc. of Charlotte. That company requested the rezoning to allow the building of an apartment complex — roughly 60 units — on an 11-acre tract in the vicinity of the State Employees Credit Union, a tract that is mostly wooded at the moment.
It would appear this process, however, was done under questionable methodology when held up to state law. Even worse, it appears the measure was pushed through in such a manner that precluded members of the public having any true say in the matter.
The board of commissioners advertised in The Mount Airy News that it would be holding a public hearing on the request, and that it would be accepting public comment during the hearing.
A public hearing on a rezoning proposal is required by state law, and is generally a time when members of the public can address the board on the issue, offering support for or opposition to the request. Those comments can be solely a person’s opinion without any factual underpinning, or can be based in solid, verifiable fact.
What is supposed to happen is that the commissioners listen to the people during the hearing, and combine that with additional facts they have learned in their own investigations, to make a decision.
A quasi-judicial hearing, which is what the Mount Airy board held, is different. It is held in matters of rezoning requests in which a conditional use, special use permit, variance, or other factors are in play, as allowed by state law. This request appears to have been the case in this rezoning request.
While the city commissioners were apparently aware this would be a quasi-judicial hearing, members of the public were not. No where in the public notice published by the city is there any indication that this would be a quasi-judicial hearing and it appears the board never discussed this during an open session of their meetings.
This is important for several reasons, among them is the fact that under North Carolina code, only items that are supported by verifiable fact, or are entered into evidence at the hearing by a recognized expert, can be part of the hearing record and can be used by the commissioners to arrive at their vote.
Thus, citizens showing up at the hearing were not prepared — they had no experts, such as a traffic engineer or someone with a background in environmental sciences — to testify as to potential danger caused by the significant increase in traffic to be caused by such a development, or to speak, officially, to the environmental impact of the project. The citizens of Mount Airy were not aware they needed someone with an expertise in urban planning to be on hand to testify as to whether this development was consistent with the zoning and current use of that area of the city (though it would take little common sense to see it clearly is not).
Yet, a number of citizens were allowed to speak, voicing what is no more than their personal opinion. Was this entered into the records of the meeting, in violation of state law? Or was it ignored — essentially, were these people allowed to speak, while the board of commissioners had already decided whatever they said was worthless, to be ignored, as if they were merely talking to a brick wall in an empty room?
Furthermore, were the commissioners adequately advised by city legal counsel this would be taking place, and how they should conduct themselves? Two commissioners, Shirley Brinkley and Steve Yokeley, recused themselves from the hearing, the discussions, and the vote. Their reason? Because they had talked with people in town about the project, they had sought out additional information, one even attended the city planning board hearing, when that board voted unanimously to advise the city commission to turn down the request.
It turns out, because these two commissioners gathered information outside the quasi-judicial hearing that may affect their decision, they weren’t allowed to take part in the hearing or vote. Normally, gathering facts outside of the meetings to help one make a decision is part of a commissioners’ job, so we have to question why city legal counsel did not advise the commissioners not to do this.
There are too many questions about this whole episode to list here. Some others include why did officials from Flatiron Group Inc. attempt to contact the commissioners, on an individual basis, to discuss the project, if such discussions could make the commissioners ineligible to vote on the measure?
How did the commissioners know this was going to be a quasi-public hearing when that had not been discussed in public? Did the commissioners take part in an illegal closed meeting?
Why did city attorney Hugh Campbell instruct the commissioners who spoke at last week’s meeting not to share written copies of their remarks to members of the public and media, even though those written remarks are now part of the public record?
And the two biggest questions of all are:
1) What happened last week? What, or who, pulled a fast one on the city to get a project through that clearly was not wanted, did not fit with zoning regulations nor with existing land use in that area?
2) Has the city handled this in such a secretive, confusing manner as to have left itself wide open for lawsuits from city residents, the developers, and even potentially media organizations covering the community?