City brought this legal action on itself

By John Peters

May 7, 2014

Always do right, simply because you know it’s right.

That advice, or something similar to it, has been passed from parents to their children countless times over the generations, and it is solid, sound counsel. Perhaps the Mount Airy Board of Commissioners would have been wise to have followed that advice in the recent vote on the rezoning of an 11-acre tract on South Franklin Road.

The commissioners voted 2-1 to grant the rezoning so that the Flatiron Group Inc. of Charlotte could build a $7 million apartment complex on what is now largely undeveloped land.

J.T. Henson, and his wife, Gladys, have challenged the vote in court. The filing asks for a reversal of the vote, and cites many of the same questions and seemingly improper actions by the city that we have questioned.

The public hearing on the zoning request was advertised, as required by state law, but rather than a normal public hearing during which anyone is free to state their opinion, the city held what is called a quasi-judicial hearing, which is more like a court proceeding than a public hearing.

Those speaking had to be sworn in, and were limited to speaking based on what they knew to be fact, rather than opinion or their feelings on the request. Those opposing the request were not allowed to cite fears of increased traffic, crime, loss of property value and environmental concerns unless they produced a recognized expert in those respective fields who could testify on their behalf.

Furthermore, the city commissioners were not allowed to consider anything outside of the testimony that was presented during the hearing, and were informed they were not allowed to take part in the discussions or vote if they had already formed an opinion before the public hearing.

The problem with this is that no one in the public was informed of this. No one had a clue they would have to produce experts, or verifiable studies, to bolster their claims. It would even appear city counsel did not adequately inform the commissioners of their limitations as well, because two of them — Shirley Brinkley and Steve Yokeley — recused themselves from the meeting based on this. Yokeley also cited the fact that he owned property nearby, so he may have not been able to participate in any event, but Brinkley should have been allowed to take part.

The remaining three commissioners — Jon Cawley, Jim Armbrister and Dean Brown — approved the request on a 2-1 vote, with Brown the lone dissenter.

It was clear that no one outside of the Flatiron Group and the owner of the property in question, Rick Shelton of Cana, Va., wanted the company or its development here. The city’s advisory planning commission voted unanimously against recommending approval, everyone who spoke at the public hearing was against the development, and the planned development is clearly not within the existing use of the land.

Yet the commissioners gave approval to the rezoning.

In this whole process, which we’ve criticized in the past for these and other irregularities, it seems the commissioners were acting solely in a manner aimed at preventing some sort of possible legal action by a big money out-of-town developer, rather than doing what they were elected to do — represent the people of Mount Airy (or, in this case, those in the municipal zoning control region just outside the city limits).

How ironic that, in seeking to avoid potential legal action rather than just doing their job, the commissioners have, in fact, invited legal action.

Generally we hate to see court action involving the government, because in the end such action costs the taxpayers. In this case, though, that’s a battle worth fighting, and a cost worth paying.

We applaud the Hensons for doing what the board wouldn’t — standing up for the rights of individual property owners.