By David Rogers. April 15, 2019. BLOWING ROCK, NC — Oops. Commissioner Sue Sweeting unwittingly divulged that she apparently violated basic restrictions on Town Council members when it comes to quasi-judicial public hearings at last Tuesday night’s regular meeting of the Blowing Rock Board of Commissioners.
Meanwhile, after four and a half-hours of Q&A drudgery (and often irrelevant silliness), the public hearing focused on the “Rainey Lodge” CUP (conditional use permit) application for building a new “boutique” hotel on the fringes of downtown finally got to the good stuff — before a packed house.
A hand caught in the cookie jar (the “oops” moment)
According to the Municipal Research and Services Center (MRSC), Town Council decision-makers must enter a quasi-judicial public hearing with an open mind and consider only the “findings of fact” presented at the public hearing itself. By law, they are restricted from having conversations with other parties beforehand about a CUP application.
The following paragraph is extracted from an article about Planning and Development Regulation and the application of North Carolina General Statutes, Chapter 160D, found on the UNC School of Government website:
(d) Quasi-judicial decisions. A member of any board exercising quasi-judicial functions pursuant to this Chapter shall not participate in or vote on any quasi-judicial matter in a manner that would violate affected persons’ constitutional rights to an impartial decision maker. Impermissible violations of due process include, but are not limited to, a member having a fixed opinion prior to hearing the matter that is not susceptible to change, undisclosed ex parte communications, a close familial, business, or other associational relationship with an affected person, or a financial interest in the outcome of the matter. (emphasis added)
In other words, the development applicant has a constitutional right in North Carolina to a hearing before an impartial decision maker. It is impermissable for a decision-maker to have communication with anyone about the matter at hand unless the affected/opposing party is also represented. Where those communications occur, they must be disclosed, openly.
Given those strict guidelines, even Sweeting’s admitted attendance at the March 21st meeting of the Blowing Rock Planning Board about the Rainey Lodge CUP application was questionable in its appropriateness, although she claims to have had “permission.”
Because the affected party (the developer-applicant), was also present at the Planning Board meeting, there may be merit in Sweeting’s (or any other commissioner’s) attendance at the Planning Board meeting because they would become more familiar with all of the issues. But that is only if she arrived at NO conclusions as a result of her being there. If she was to draw a conclusion, then she would not be sitting on the later Town Council meeting as an impartial decision-maker when it came time for the quasi-judicial public hearing.
But Sweeting’s over-stepping the boundaries between right and wrong as a public official seems to go well beyond the Planning Board meeting.
When Sweeting started grilling the Rainey Lodge developer’s traffic study consultant, a representative of transportation planning firm Design Resource Group of Charlotte, she demanded to know if the North Carolina Department of Transportation had reviewed and approved the consultant’s study.
In answer to Sweeting’s question about an NCDOT review of the transportation planning firm’s traffic study, the consultant replied that locally-based NCDOT engineer Brandon Greer was contacted about the study, but he declined to look at it because the project has no direct access points from U.S. 221.
Unsatisfied, when a later motion was made for the Commissioners to vote on and Mayor Charlie Sellers asked if there was any discussion, Sweeting interjected that she wanted to amend the motion to a add a requirement for the NCDOT to review the consultant’s traffic study. When fellow Commissioner and Mayor Pro Tem Albert Yount pointed out that the NCDOT was unlikely to change its mind and review the document, Sweeting said, “Oh, they will. I have already talked to (NCDOT engineer) Mike Pettijohn.”
Score one for what appears to be self-incrimination. Knowing she is not supposed to be talking with anyone about the CUP application in advance of the public hearing, why is Sweeting having this discussion with Pettijohn? In divulging that she was already in talks with the NCDOT engineer about the project, she also made herself out to be untruthful in answering Mayor Sellers’ first question of the Board members as the public hearing got underway: “Have any of you gathered or received prior information or had conversations regarding the subject hearing matter being considered?”
In answering the question, Sweeting admitted that she attended the earlier Planning Board meeting, but she failed to disclose that she had been in conversations about the project with anyone from the NCDOT. Given Sweeting’s sometimes aggressive, even argumentative questioning of the development company’s representatives and her apparent lack of truthfulness about relevant prior conversations, we are left to wonder whether she came into the quasi-judicial public hearing with an open mind — or whether her mind was already made up. That question was reinforced at one point when she offered a backhanded compliment to Grand Dakota Development principal Steve Barker in saying (paraphrased), “It seems as if you have anticipated our every question, leaving us no flexibility in making our decision.”
Flexibility? You mean he has done his job and left you without any room to vote “no,” like you have already made up your mind to do?
A quick aside: Sweeting’s language was almost verbatim what recent Blowing Rock Civic Association (BRCA) communications have stated (or asked) in recent transmissions to members of the Town Council and media, so it is easy to speculate that Sweeting also engaged in dialogue with that organization, or at least familiarized herself with BRCA’s criticisms of the proposed development. If true, it would be another failure to disclose her preparations in advance of the quasi-judicial hearing.
The (K)night’s Tale
The early part of the public hearing process was some legal jousting between attorneys Stacy Eggers IV, (officially representing five residents who feel they would be adversely impacted by the development) and Chelsea Garrett of diSanti, Watson et al, representing the applicant developer, Charlotte-based Grand Dakota Development, LLC.
At issue: Eggers planned to call each of the five residents as witnesses and Garrett sought to confirm their “standing” as participants in the quasi-judicial proceeding. A little later we will touch on at least some of the relevant issues raised by the legal eagles during this part of the process, but suffice it to say for now that the Commissioners unanimously approved the witnesses as having standing. Whether they were right or wrong remains to be seen.
This early segment of the process was not only an interesting lesson in civics for the standing room only crowd that flowed out into the hallways and lobby of Town Hall, but in many respects made it “real,” as one observer pointed out, even rivaling one of those courtroom dramas seen on television. Here in quaint lil’ ol’ Blowing Rock, in real life, the onlookers got to see two highly competent attorneys in their professional prime plying their trade, each asking good questions leading toward their closing, well-articulated arguments.
The irony, of course, is that in the attorneys taking turns questioning the prospective witnesses as to their standing (or eligibility) to be part of the proceedings, the witnesses actually testified in answering the attorneys’ questions — with often editorial comments about how they would be adversely impacted by the development if it was approved by the Board of Commissioners!
Making Barnum & Bailey proud
Once the “standing” issue was decided, the Board heard presentations from Planning Director Kevin Rothrock, as well from representatives of the developer, Grand Dakota Development, LLC, a Charlotte-based firm.
The only redeeming quality to this April meeting of Town Council? It was great comedic entertainment. One onlooker quipped to Blowing Rock News, “By attending this mess, I saved the $11 I might have spent on a movie ticket.”
To their credit, Commissioners Yount, Doug Matheson and Jim Steele had little to say during the Rainey Lodge public hearing and really respected the quasi-judicial process that aims to let the CUP applicant present his or her “findings of fact.” Where things bogged down were when Sweeting and Commissioner Virginia Powell lapsed into silly, irrelevant pursuits, such as where the laundry facilities might be in the future hotel (an internal operations matter that has nothing at all to do with the CUP approval process) and a 30-minute-plus line of questioning focused on what was going to happen to a blue car that is currently parking on the other side of Rainey Street.
All of this together, the presentations and the Q&A of Sweeting and Powell vs. the developers and their consultants, lasted (many would say wasted) four and half hours. Then it was time for attorney Eggers to question Planning Director Kevin Rothrock. He did so very effectively, as a good attorney can do, bringing to light some of the very contradictions in the current Land Use Code that the Planning Board was trying to remedy with its proposed changes brought to Town Council at its February 12th meeting.
Eggers asked some good questions about parking, landscaping, building height, and whether prospective increased traffic on the half-block stretch up Morningside Dr. presents a safety concern as the street is currently configured. He even challenged the applicant’s claim that no variances from the Land Use Code are being requested, particularly with regard to the size of parking spaces.
Given how vocal the BRCA leadership (and Sweeting, among others) were about the Planning Board’s proposed changes to the Land Use Code in February and how critical the same group has been about the Rainey Lodge project, it is interesting to point out a glaring irony.
While there appear to be no variances that are of sufficient consequence to deny approval of this project under the current Land Use Code, the project (as presented) COULD NOT HAVE BEEN APPROVED (without requests for variances) under the Land Use Code modifications proposed by the Planning Board that were so criticized by BRCA and struck down by this Board of Commissioners in February. Now that is pure irony, to be sure.
CLICK HERE to read our Tomorrow’s Blowing Rock editorial penned after the February meeting: “Brilliance, blindsided by dysfunction”
We’re not taking sides as to whether or not the Rainey Lodge project should be approved. The Planning Board said, unanimously, that it should be, and that group of volunteers has some terrifically talented, qualified, and smart people on its review panel. On the other hand, Eggers raised some good, thoughtful questions about it in laying bare contradictions in the current Land Use Code.
But here are some final thoughts that occurred to us as we witnessed a Town Council meeting that only Barnum & Bailey could have imagined — including Powell’s lengthy “what if” line of questioning: “If your hotel fails as a business, could it be developed into townhomes or condominiums?” That is also ironic in that the two previous development proposals for the parcel have been townhome projects!
Those other thoughts and questions:
- The 0.9-acre parcel bordered by Morningside Drive, Rainey St., U.S. 221 and Speckled Trout restaurant is zoned commercial
- When I first arrived in the High Country in 2000, the parcel WAS commercial and home to not only Cheeseburgers In Paradise, but also to a real estate office, as well as a small collection of retail-type shops
- Anyone owning property that is zoned commercial (and has been zoned that way for more than two decades, at least) has a RIGHT to  let it lie vacant (for whatever reason), or  develop it for commercial purposes within the limitations of the Land Use Code; or  develop it for commercial (or even residential) purposes while ASKING for specific variances to the Land Use Code. As the property owner, it is his or her right to try and capitalize on the real estate asset in which he or she has invested
- Anyone owning nearby property for any length of time HAD to know that it was zoned commercial because of the previous uses of the property. You can’t just assume that because previous commercial uses failed that the property won’t eventually be redeveloped
- Anyone purchasing nearby or adjacent property in recent years owes it to themselves to research (ask your realtor the question) how adjacent properties are zoned. It’s only common sense
- If anyone is concerned about any kind of potential commercial development on adjacent or nearby property, the best way to prevent it is to buy the land themselves so it cannot be developed (unless they choose to do so)
So after five hours (it was a little past 11:00 pm), Mayor Sellers requested a motion for the public hearing to go into recess and, at least initially, for the entire meeting to be reconvened in a special meeting. But instead of tabling the discussion and asking the town manager to coordinate when a special meeting to continue might take place with all the parties involved (including the applicant and the attorneys), this board of commissioners defaulted into another public “I can meet on such and such, but you can’t be there then?” And “I’ll be out of town that day.” “I do work for living.”
After spending some 15 minutes unable to decide among themselves when they could meet, the commissioners punted and concluded that their only alternative was to continue the public hearing at the regular May 14th meeting.
The public hearing circus had already lasted five hours, and given the number of people waiting in the proverbial wings wishing to speak — and having given both sides a glimpse of the issues, with time to prepare counter-arguments — it is probably only halfway through.
Throughout the five hours of public hearing on the Rainey Lodge project, several people with other business on the meeting agenda had waited patiently. To their credit, the Commissioners elected to keep going Tuesday night (after recessing the public hearing) and address the other agenda items.
- Display of a proposed sculpture in front of Blowing Rock Art & History Museum for one year. It had been awarded by Appalachian State University’s Rosen Sculpture Program. APPROVED
- Under public art requirements of the Town, a request by Chetola Resort’s Kent Tarbutton to share an art sculpture along a right-of-way bordering Chetola, along Main Street. APPROVED
- Monthly Financial Report by Finance Director Nicole Norman
- Composition of the ad hoc committee previously proposed (by Sweeting) for the “Visioning” of Blowing Rock’s downtown and U.S. 321 bypass. There was considerable discussion about composition of the committee because the original plan was to include three of the commissioners: Sweeting, Yount and Steele. Interim Town Manager Jim Freeman pointed out that three of them represented a majority of the Board of Commissioners and opined that the committee would thus be viewed as a decision-making body able to act on behalf of the full Town Council (assuming all three agreed on any given issue). To summarize, Commissioner Jim Steele elected to withdraw from being part of the committee, so now its meetings will not fall under the auspices of North Carolina’s Open Meeting Laws. Other non-Board members of the committee proposed by Sweeting and approved by the Board are John Aldridge, Keith Tester, Pete Gherini, Spike Bachman, and Joe Bogdahl.
The meeting was mercifully adjourned a little past midnight.
We will address the need and appropriateness of the ad hoc committee in a future Tomorrow’s Blowing Rock editorial.