Citizen group challenges Chowan Planning Board decision

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Claims 30-day window for appeals should be waived, in wake of illegal meeting

CHOWAN COUNTY – Last year, on Aug. 18, 2015, the Chowan County Planning Board conducted a meeting, which included an agenda item pertaining to a proposed solar project.

Later, a citizen group determined the meeting in August did not adhere to state statutes, and brought this matter to the attention of the County Manager.

Instead of acknowledging that a mistake had been made, County Manager Kevin Howard and Planning Director Elizabeth Bryant have relied upon a rule that denies the citizens the opportunity to appeal the ruling of the Planning Board.


That rule states that appeals of Planning Board decisions must be filed within 30 days after the decision is rendered. The citizens, on the other hand, argue that the meeting was conducted illegally, according to a plain reading of the appropriate statutes.

For this reason, they allege that any decision by the Planning Board was null and void therefore negated the 30-day rule for appeals. Regrettably, the Manager and Planning Director have chosen to stonewall rather than to admit that the meeting was invalid.

One member of the citizen group, Robert Kirby, is a professional engineer by trade and he has researched this issue very carefully – addressing the Planning Board at its regular meeting on March 22, 2016.

He pointed out that he was not there as a practice of his profession, but as an ordinary citizen who is concerned about the perceived lack of attention to detail, which has been exhibited by the Planning Board in the performance of its lawful and appointed duties. He stated that he felt compelled to have the official record and minutes of this meeting reflect the concerns of a number of citizens with respect to this Board and its obligation as defined under Article 1 of the Zoning Code of Chowan County North Carolina.

Kirby said the Statement of General Zoning Objectives is very clearly outlined in the Zoning Ordinance. Ultimately the County Manager, Planning Department and the Planning Board are charged by the Chowan County Commissioners, and by extension, the Citizens of Chowan County, with creating future conditions essential to public health, safety, and general welfare. As such, the Ordinance has been carefully crafted to ensure that any proposed development will adhere closely to a strict set of standards and that a series of tests to confirm compliance will be carefully and precisely administered by the Planning Department and the Planning Board prior to the issuance of a Special Use Permit.

It was pointed out that Section 8.108 of the Zoning Ordinance requires that approval for development and construction of a solar industrial electrical generating facility be subject to the issuance of a Special Use Permit. This section goes on to outline specific requirements of Setback, Height, Visibility, Application requirements, and Installation and Design.

Sections 3.10 through 3.12 of the Zoning Ordinance outline very specific procedures, which must be followed by either the Planning Board (in the case of a Special Use Permit) or by the County Commissioners (in the case of a Conditional Use Permit). In the case of a Special Use Permit — such as for the case at hand – adherence to these procedures is the responsibility of the Planning Board.

The State of North Carolina has generated a series of laws referred to as General Statutes. These laws are enacted by our Legislature in Raleigh and then signed into law by the Governor. Article 18 of these General Statutes specifically addresses planning and regulation of development. The Chowan County Ordinance , was adopted by the Chowan County Commissioners in strict accordance with the provisions of Article 18. Enforcement and application of the Zoning Ordinance and the provisions contained within the Ordinance is not something to be considered optional.

The Zoning Ordinance is the law.

The procedures for obtaining a Special Use Permit as outlined in sections 3.10 through 3.12 are mandated by the Ordinance. Article 3.12 of the Ordinance is entitled “Evidentiary Hearing Requirements and Procedures for Special Use and Conditional Use Permit Applications.”

It states that no special use or conditional use permit shall be approved until an evidentiary hearing has been held by the permit-issuing board in accordance with the provisions of this Section. The purpose of the evidentiary hearing is to gather facts, not to solicit citizen opinion. Consequently, the hearing procedures differ from those of the typical public hearing. In an evidentiary hearing, testimony may be provided only by sworn witnesses, strict rules of evidence apply, and written findings of fact are required.

The minutes of the Planning Board from August 18, 2015 contained no documentation to support that the required evidentiary hearing in this matter was conducted. No written findings of fact have been published. Further, as outlined in section 3.1 2.1, the Planning Board has an obligation to verify and conclude based on information submitted at the hearing that the development will not materially endanger the public health or safety, and will not substantially injure the value of adjoining property, will be in harmony with the area where the development is located, and will be in general conformity with the land-use plan. Because the required evidentiary hearing in this matter was not conducted, the Planning Board has failed the County Commissioners and the Citizens of Chowan County by not ensuring that these most fundamental planning precepts have been met.

Despite the foregoing, the Planning Director, Elizabeth Bryant, has stated that the appeal provision of 30 days has expired and that no appeal will be undertaken. She seems to ignore the arguments stated above, which would suggest that the meeting was not conducted lawfully and that other provisions of the requirements of the Planning Board were not followed.

County Manager Kevin Howard agrees but stated that the County Attorney would be conducting an Administrative review of what occurred.

The County Attorney, who is Lauren E. Arizaga – Womble of The Twiford Law Firm, has issued a written opinion dated March 21, 2016, which states that she had reviewed the correspondence pertaining to the Special Use Permit that was granted in August 2015.

North Carolina General Statute 160 A-381(c) grants planning boards the power to issue special use permits. Quasi–judicial planning board decisions are subject to review in accordance with Generals Statute 160A-388. The statute provides for Superior Court review if a petition to challenge the quasi-judicial decision is timely filed. The statute of limitations for filing said petition is 30 days. In the event there is no timely appeal the decision stands.

She states that she has no opinion as to whether the claims that have been made are meritorious regarding the Special Use Permit in question and the hearing procedure relative to same. She states that the first issue to be addressed would be the statute of limitations question. The 30 days to challenge the quasi-judicial hearing conducted in August 2015 had clearly run thereby concluding her analysis.

Regrettably, the County Attorney fails to address the underlying question as to the legality of the meeting and whether that meeting was held in accordance with the General Statutes.

It has been, and continues to be, the position of the Citizens of Chowan County that the Planning Director should be required to know the laws of North Carolina that apply in these situations and to follow the law correctly and to its full extent. The Planning Board is made up of ordinary citizens who should not be expected to know as much about the prevailing law as the Planning Director.

If the meeting was held improperly and did not follow the requirements as specified in the General Statutes, that error falls squarely on the shoulders of Planning Director Elizabeth Bryant. For her to invoke the provisions of a Statute of Limitations, after the fact, while ignoring her basic error in the underlying matter, seems to be rather self-serving on her part.

This paper has contacted the County Attorney for clarification of her ruling in order to complete this article as accurately as possible, with full benefit of the opinions of all sides. We will provide a follow-up article once we have received a reply.