Tom Boney, Jr., editor and publisher of The Alamance News, appeared at a special meeting for Graham’s Historic Resources Commission Tuesday night, hoping to ask about the procedures that the city’s staff had used week ago in scheduling the public hearing and “quasi-judicial” hearing on the city’s application for a Certificate of Appropriateness to build a new park on a city-owned parking lot along West Elm Street, directly across the street from the newspaper’s office.
But the commission shut Boney down after concluding that he lacked formal “legal standing” to speak or ask questions about apparent violations of state law that occurred when city staff scheduled the meeting a week ago.
At one point Tuesday night, there was even a disagreement over whether the meeting notice had stated that Graham’s Historic Resources Commission (HRC) would hold a public hearing.
“Take that up with the people that are above our pay grade – which is zero,” HRC chair Zipporah Clark-Baldwin told Boney as he insisted that the city had failed to follow a state law that sets forth the requirements and procedures for holding a quasi-judicial hearing on a certificate of appropriateness. “We have no authority over that particular item,” she told the publisher.
At the outset of the hearing, one of the city’s attorneys, Bryan Coleman, outlined, “Parties seeking to be treated as if they have standing will need to show the board that they have suffered some special damages. What the board will be looking at will be your proximity to the park; whether your property values have gone down; and other secondary effects, which would be something like light, noise, runoff water.”
Yet the commission later concluded that the publisher lacked sufficient standing to speak on the application itself, despite the newspaper office’s proximity to the new park – i.e., directly across the street from the newspaper’s office.
“We are now in a public hearing,” Clark-Baldwin said when city planner Cameron West sought to introduce a staff report into the evidence, before assistant city manager Aaron Holland gave his testimony as the applicant for the Certificate of Appropriateness.
“I fall in several categories,” Boney told the commission. “We own the property directly across from the proposed park site, 114 West Elm Street. My original purpose was to mainly ask some questions about what I think are some omissions in the city’s presentation.”
The publisher went on to describe several “serious” legal flaws in the procedures the city used to schedule the hearing.
“I do not believe this hearing has been properly advertised; I do not believe the city gave adequate notice under the statutes of North Carolina, or under its own ordinances,” Boney said. “With regard to the legal issues, anybody would have standing to raise those.”
“Not during this hearing,” Clark-Baldwin shot back. “This hearing is not just for public comment in general.”
Boney acknowledged that, perhaps, he should’ve raised his objections before the attorney read the guidelines prior to the evidentiary hearing portion of the HRC’s meeting. “But it did not appear to be the way the board wanted to handle things,” the publisher added.
Statute silent on whether a commission can hear from parties without standing
The state statute that governs quasi-judicial hearings merely dictates that the testimony, evidence, or comments from members of the public who lack legal standing cannot be entered into the official record for a quasi-judicial proceeding.
The statute is otherwise silent on whether a commission is obligated to hear comments from individuals without standing and, in fact, leaves such decisions to the discretion of its members, according to legal experts in land use law with the School of Government at the University of North Carolina at Chapel Hill.
“[On] proximity, I’m directly across the street,” Boney continued. “Obviously, all the of examples that the attorney read were past tense and none of the effects on us would be past tense yet [such as a decrease in property value] because the park obviously hasn’t been built. I would definitely have concerns about access to parking because we use that frequently because parking is often filled up on the street. That would be one of those dimensions. In terms of its business impact, customers who are seeking to come to our office would be adversely affected by not having access.”
The commission chair responded, “The parking is something that’s been in existence for years. I don’t know how we’re able to fold that into what we’re discussing tonight, because parking is not what we’re discussing.”
Construction of the park would result in the elimination of about half of the existing parking spaces in the city-owned lot along West Elm Street, based on the third iteration of the design for the “Elm Street Park” that was presented to the city council on March 10.
“Is this what you have an argument about – the parking, or because it’s close proximity to your business?” Clark-Baldwin asked.
“I have many more,” Boney said. “Close proximity; parking; and the legal basis for this hearing: those are my key areas.”
‘Let’s close the meeting’
The chair announced, “Let’s close the meeting.”
City planner Cameron West interjected, “No, no, no, no, no. There’s no getting closed. [It’s an] open meeting. It’s up to you five to deliberate and make a motion on whether or not Mr. Boney has standing. [Speak] into the [microphones] please; everybody stay in your seats. There’s no small gathering.”
Coleman reiterated his interpretation of the statutory requirements for establishing legal standing. “There are secondary effects you can look at,” he again told the HRC. “You can look at parking, light, noise, water runoff – any of the other things that may come into play.”
Commission member Casey Bosley asked Boney to clarify his concerns about the loss of parking in front of the newspaper office, while city staff confirmed for her that “25 or 26” parking spaces would be eliminated from the parking lot along West Elm Street.
“I’m making my vote known,” Clark-Baldwin said. “I personally don’t see standing here. I think every citizen should have the right to park wherever there’s ample parking downtown. I don’t think we can limit parking spaces; you don’t want anybody parking directly in front of your building for more than two hours. Other than that, we cannot just make rules tonight for who parks where and when.”
Commission member Ben Beushausen agreed, saying, he didn’t see “special damages,” based on the remarks that the HRC was willing to hear from the publisher.
“I think everyone downtown will lose parking spots – that’s evident,” said one of the newest HRC members, Richard Shevlin, who was appointed on March 10. “Most of the people are here tonight to talk about parking, so I wouldn’t say it’s special.”
West informed the commission chair that someone needed to make a motion, as opposed to Clark-Baldwin “polling” each member.
Shevlin motioned that “Mr. Boney’s issue is not worth hearing tonight; he does not have legal standings.”
Beushausen quickly seconded the motion, and the commission voted 4-1, with Bosley voting against.
Publisher: City failed to meet statutory requirements for public notice
“I need to raise the issue of the legal standing of this hearing,” Boney countered. “That is something that the attorney did outline at the beginning as being one of the issues that can be raised. The state statute requires that notice be given 10 to 25 days before this hearing. The notice I received is postmarked March 17, which is seven days ago. That is inadequate based on the statute.”
West said that the commission had already established that the publisher lacked standing to speak on the matter. “I think what he is currently reading off of is the requirement for public notice for special use permits,” the city’s planner opined.
However, Chapter 160D-406 of the North Carolina General Statutes, which governs public notice requirements for quasi-judicial hearings, specifically states: “The notice must be deposited in the mail at least 10 days, but not more than 25 days, prior to the date of the hearing.”
West insisted that “normal legislative hearings” on matters pertaining to the city’s development ordinance only require seven days’ public notice. “In my opinion, we did what we had to do by the development ordinance,” the city’s planner said.
Yet state law stipulates that a hearing on a certificate of appropriateness before a historic resources commission is a quasi-judicial proceeding – not a normal legislative hearing – as Boney repeatedly reminded the HRC Tuesday night.
“The attorney at the outset described this as a quasi-judicial proceeding,” the publisher said. “The quasi-judicial rule under state law is 10 to 25 days. That was not done. Another part of state law is there’s supposed to be a posting.”
West also said a notice isn’t required to be posted on the property under Graham’s development ordinances.
In addition to the notice that’s required to be mailed to affected property owners within 10 to 25 days of a hearing, the same statute, titled “Quasijudicial procedure,” states: “Within that same time period, the local government shall also prominently post a notice of the hearing on the site that is the subject of the hearing or on an adjacent street or highway rightofway.”
“Madam chairman,” said Boney, “the difference is this, and it’s key: he is citing the development ordinance for the city of Graham. I am citing state law…That’s North Carolina law; that overrides the city’s ordinances. The city did not comply with state law on either part of the notification. I would say this hearing is frankly premature in that you haven’t given adequate notice as required by state law.”
Read the newspaper’s editorial page views on the conduct of the hearing: https://alamancenews.com/when-is-a-public-hearing-not-a-public-hearing/
