Cites city’s failures to follow state law, other irregularities
Alamance News publisher Tom Boney, Jr. has filed an appeal with the board of adjustment in Graham over the failures of another city advisory board to follow state law requirements leading up to its approval of a “certificate of appropriateness” for building a new park across the street from the newspaper office in downtown Graham.
Boney had tried to raise concerns about the failure of the Historic Resources Commission (HRC) to follow state law’s mandated notification requirements when the commission met on March 24.
The HRC approved the issuance of a certificate of appropriateness for the park in an historical district, making only one change – requiring a flat roof on the pavilion that is to be the center of the new park, rather than the pitched roof that was in the city’s original plans.
Boney tried repeatedly that night to focus the HRC on procedural shortcomings in the notification requirements when the commission met last month.
But the commission voted 4-1 that Boney did not have “standing” to speak to the commission or raise any of the issues he tried to address, and the chairman and various members told Boney to sit down.
Boney tried to discuss both procedural shortcomings in the city’s notification about the hearing, as well as the impact on reducing parking available to the newspaper’s customers and staff from the elimination of about two dozen parking spaces in the parking lot to make way for the new park.
Boney noted that neither the notice to property owners, nor the public notice from the city prior to the HRC meeting, gave any indication that the “public hearing” would be conducted using quasi-judicial procedures. Such procedures are likened to courtroom testimony, where there are higher standards, including that witnesses must be sworn in.
Boney pointed out that state law requires notice of any quasi-judicial hearing, such as the HRC conducted on March 24, to give 10 days’ notice. Boney pointed out that the letter he received, as an adjacent property owner across the street from the new park, was postmarked March 17, i.e., only seven days prior to the meeting, rather than 10 to 25 days, as required by state law.
He also emphasized that there was no sign posted on the parking lot to notify the public more generally about the upcoming hearing for 10 to 25 days prior to the hearing as required under N.C.G.S. 160D-406(b). That’s another requirement of state law governing quasi-judicial proceedings, Boney pointed out, highlighting the state statute that’s supposed to govern such proceedings.
Ex parte contact between HRC members, city staff
Since the hearing, Boney says that he had discovered other procedural, ethical, and legal irregularities in the HRC’s procedures at and leading up to the March 24 meeting.
In his appeal to the board of adjustment, Boney points out, that there had been ex parte contact between some of the HRC’s five members and city staff.
The newspaper learned through a public records request to the city that some HRC members, primarily chairman Zipporah Clark-Baldwin, had been in contact with city staff prior to the hearing, and that the staff initiated other contacts with all members.
Discussions, written or verbal, are not to take place with one side on issues up for a quasi-judicial hearing without both parties being present – or, at a minimum, such contacts must be publicly acknowledged at the meeting, with an assurance given that such contacts had not influenced a member’s position. But no such request to reveal any ex parte contact was made, Boney said this week.
Nor, Boney alleges in his appeal, was there any call for members to divulge potential conflicts of interest.
In one instance, cited by Boney to the board of adjustment, HRC chairman Zipporah Clark-Baldwin had emailed with assistant city manager Aaron Holland and with planning department employee Jonathan Buckley prior to the hearing.
Clark-Baldwin expressed an opinion about the need to approve the project more than two weeks prior to the hearing.
In an email with Holland on March 9, Clark-Baldwin said, “I’m really hoping we can find a time that works for everyone [to set a meeting date] so we can keep this important project moving forward and secure that grant funding.”
This week, Boney said Clark-Baldwin’s statement about “moving forward” showed a “biased, fixed opinion prior to the hearing, something that is supposed to be prohibited.”
The grant funding – inaccurately termed a “federal grant” by another planner, Cameron West [it is actually a state grant] – had been mentioned in an email several days earlier to all HRC members. “I also want to overemphasize that everything will be for a new park and is no way tied to the existing park that is located on the court square,” West said in a March 5 email to the five HRC members.
Clark-Baldwin was also given a 4-page “script” by Buckley the preceding week as the suggested wording she should use in opening the HRC meeting and during other portions of the hearing.
[Editor’s Note: Clark-Baldwin did not actually use Buckley’s pre-written script; among other things, the proposed script did suggest the chairman call for any potential conflicts of interest and for members to reveal any ex parte contacts.]
Dual roles by city attorney, city staff
The city attorney and city staff acted as both representatives of and advocates for the applicant, seeking approval for the city’s new park, and also as advisers to the HRC Commission, the newspaper publisher contends in his appeal.
“You can’t be both the applicant and a supposed ‘neutral’ adviser to an advisory board. To do both is an inherent conflict of interest,” Boney said.
“Both the Applicant and the HRC were represented by and received extensive legal advice and procedural guidance (including speaking advice as to the wording of motions) from the same lawyers at the hearing by the same counsel,” according to Boney’s appeal. “The same counsel appeared to also offer legal advice and guidance to some members of the public appearing to address the HRC.”
Under the city’s ordinance, appeals of HRC votes must be filed within 30 days of the original decision. The HRC vote was March 24; Boney’s appeal was filed with members of the board of adjustment yesterday, Wednesday, April 22.
The board of adjustment may schedule a special meeting to consider the appeal, or the board could address it at its next regularly-scheduled meeting, on May 19.
In Graham, the city’s seven-member planning board also serves as the city’s board of adjustment. It meets on the third Tuesday of each month.
In Mebane, the five city council members plus two additional members – one representing the ETJ on the Alamance County side of the county line and another member representing the ETJ on the Orange County side – serve as that city’s board of adjustment.
In Burlington, there is an altogether separate seven-member board of adjustment (not affiliated with either the planning board or city council); Burlington’s current board of adjustment has two vacancies, according to the city’s website.
Graham officials are also expected to open bids this afternoon on proceeding with construction of the new park.
