Chowan County admits improper procedure by Planning Board
But no reason to revoke solar developer’s permit, despite critics’ protests
BACKGROUND: In an article a few weeks back, we reported that the Chowan Planning Board had erred in approving a Special Use Permit for construction of a solar farm on Yeopin Road. Later when the issue arose, the County Attorney, Lauren Womble (wife of the District Attorney) offered a legal opinion that the citizens who challenged the permit could not appeal because the Statute Of Limitations had passed. The citizen group argued that they should not be bound by the Statute of Limitations because the Planning Director had made a mistake in following State Law with respect to these matters and that the permit should be rescinded as invalid. The County Attorney wrote a letter to the Board of Commissioners, which stated that the Contractor had an equity interest and reiterated her position reference that Statute of Limitations.
The citizen group had obtained a copy of the minutes of the Planning Board Meeting for the date in question, which was followed up with a request for the audio tapes of the meeting. The typed summary of the minutes implied that specific issues had been voted on in accordance with the NC General Statutes. But the audio transcript failed to confirm the facts that were previously presented.
At the April 20 regularly scheduled meeting of the Planning Board, this issue arose again. There were two speakers who addressed the various concerns and the inconsistencies between the minutes and the audio tapes. After the speakers were finished with their remarks, the County Attorney addressed the contention that the meeting was conducted unlawfully. She admitted that issues of fact had not been voted on as required by NC General Statutes. Both speakers had suggested that the Planning Board should simply admit that they made a mistake and re schedule the consideration of the Special Use Permit in accordance with State Law.
Mrs. Womble stated that even if a mistake had been made, the only remedy was to argue the case before a Superior Court Judge.
Another issue that arose was the question of whether or not, the Planning Board had operated within “Quasi Judicial Procedure” as required by statute. It was suggested that if the Planning Board failed to follow these rules that the meeting should be considered as illegal. Another speaker addressed the “constitutional vested property right” issue that had arisen with respect to the solar developer’s interests. There were several references to case law on this issue.
But, the opinion of the County Attorney, Mrs. Womble, remained that Superior Court was the only remedy available to the citizen group.
As if the explanation by Mrs. Womble were not enough, board member Jim Leggett asked if the board could waive the strict provisions of the statute at their discretion! Needless to say, Womble stated the wording of the General Statute was clear, that statements of fact were required to be voted on as individual items, and that no alteration of procedure was possible.
From the foregoing, it was clear to all in attendance that the County Planner erred on several fronts. Based upon that realization, the concern has arisen whether Quasi Judicial Procedures should be managed by the Planning Department – an advisory board that is appointed, rather than elected.
In another jurisdiction, the Currituck Board of Commissioners recently voted to remove these functions from their Planning Board in favor of the Commissioners who are elected by the people in the county with ultimate responsibility to the taxpayers.
A copy of a April 4, 2016, memo from the County Attorney to the Chowan County Commission follows:
Pursuant to Chairman Smith’s request to review the status of the O2emc special use permit, please review the following:
On August 18, 2015, Chowan County Planning Board voted to approve (5-1) the special use permit for the O2emc, Inc. solar project on Yeopim Road. On or about August 31, 2015, the official notice of the Planning Board’s permit decision was delivered to the applicant and filed according to Section 3.13(B)(3) of the Chowan County Zoning Ordinance. On March 15, 2016, five and a half months later, County Planner, Elizabeth Bryant, received correspondence from Chowan Planning Board member, James Robison, regarding his concerns related to the issuance of the permit. Specifically, Mr. Robison requested the County to revoke the permit and conduct a new hearing. I have attached a copy of Mr. Robison’s analysis for your review.
The County does not have jurisdiction to revoke the permit. Grounds for revoking an issued permit are set out in Section 11.06 of the Chowan County Zoning Ordinance, which states, “a zoning, sign, special use, or conditional use permit may be revoked by the permit issuing authority (in accordance with the provisions of this Section) if the permit recipient fails to develop or maintain the property in accordance with the approved plans, the requirements of the Ordinance, or any additional requirements lawfully imposed by the permit-issuing authority.”(emphasis added) There is no evidence, or even a claim that O2emc is violation.
The County cannot take unilateral action to revoke an issued permit without violating the applicant’s constitutional rights. Here, the applicant has a common law vested property right in the issued permit. Please consider, the developer sought and received permission from the County to construct a solar farm, which was reduced to writing, and was thereafter relied upon by the developer in making further investment. (Cardwell v. Smith, 106 N.C. App. 187). Under the 5th Amendment of United States Constitution and Article 1, Section 19 of the North Carolina Constitution, the government cannot deprive a citizen or his property rights without just compensation and for a governmental purpose. (Eminent Domain)
Reporter’s note: As evidenced by the memo above, the citizens group continues to fight an uphill battle.