North Carolina lawmakers gave property rights advocates a major victory this year when they voted to reform the state’s forced annexation law. Andrew Taylor, professor of political science at North Carolina State University and Carolina Journal columnist, hopes the General Assembly will revisit another piece of legislation that affects property rights. Taylor wrote a recent column headlined “A Major Flaw in Land Use Law.” He discussed the issue with Mitch Kokai for Carolina Journal Radio. (Click here to find a station near you or to learn about the weekly CJ Radio podcast.)
Kokai: I’m going to read a quote from [your newspaper column] that says that “this new procedure must go. It is easily manipulated, harmful to the public interest, and, I believe, blatantly unconstitutional.” What are we talking about?
Taylor: For major land-use decisions, municipalities across the state — and by those major land-use decisions, we’re talking about things such as major site developments, frequently we’re talking about issues like rezoning and what have you, conditional-use permits and things like that. The municipalities have planning boards, and the councils are required by law to use what is called a quasi-judicial process. The law I was talking about in the op-ed, by the way, really extended rather than created the quasi-judicial process. It didn’t create it in the first place, but it extended it and provided the opportunity for — and required municipalities to use it — for more kinds of decisions than previous to its passage in 2009.
The quasi-judicial process is sort of what it hints that it is. That is, it’s kind of like a court proceeding. However, there are prohibitions on ex parte communication — that is that everybody is essentially gagged. Before the dispositive hearing, no one — including the policymakers, including everybody affected — can talk about it, effectively. So there’s no ability for policymakers to do due diligence. There’s no ability for citizens to talk to policymakers about it. And then during the process, the hearing itself, only credentialed people are effectively able to participate. And by “credentialed people” we mean professionals, experts in this area — land-use attorneys, civil engineers, etc.
So when I said it’s blatantly unconstitutional, … our free-speech and right-to-petition rights are involved here. And the free-speech ones are obviously very important to the U.S. Constitution and also the state constitution. The state constitution says that free speech shall not be restrained — that’s Article I, Section 14. And then there are petition problems, of course. I mean, you should be able to petition or talk to elected officials, policymakers, about matters, and, effectively, you are restrained. They are not allowed to hear from you.
Kokai: The lawyers in the audience, and probably people who follow local government very closely, probably get this. There may be some in the audience who are saying, “OK, I understand something about a quasi-judicial process. How does this actually affect real people?” You, in your column, talked about a real-life example that affected you and your neighbors.
Taylor: Yes.
Kokai: How did things play out with this?
Taylor: What happened was, we have an oil company close to us that everybody has lived with for a long time, and that wants to have a 60 percent expansion — what is effectively a 60 percent expansion to their facility. Under the law, we’re legally affected property owners. So there are property rights involved here. And, of course, I’m a huge, big property rights person. In fact, in some ways, if you are in favor of property rights, you should just say, “Let’s get rid of the process.” The process still doesn’t make sense. Let’s just let people build. The process impinges on people who — I think — who want to expand their property, as well as those who are affected by those expansions. It’s equally problematic for both sides.
But in my case, of course, we were affected by this. We’re under the law. And we decided we would like to talk about it. We would like to register to [tell] — in this case it was the Apex Town Council — that we have a problem with this. So people went around. … We had a petition. We wrote, and of course the policymaker said, “We can’t talk to you. It’s not our fault.” And we understood it wasn’t their fault once we learned the law. We are gagged. We are bound by the law. We can’t talk to anybody about it.
During the hearing itself, of course, since none of us were attorneys, since none of us were civil engineers, all of our evidence — and, of course, it’s supposed to be evidence here — was essentially excluded. And so we found ourselves completely shut out of a process in which we thought we at least should have some kind of say.
Kokai: Now one of the other things that you pointed out in this column is that this is a fairly recent change — the expansion of this [quasi-judicial process]. In the past, if you had your complaints, you spoke to your council members or spoke to other people who would be decision makers, just as you would on any other issue of public importance. And this change, you say, is not only unconstitutional, it’s just bad.
Taylor: Yes, yes. I mean, in every other walk of life, when someone wants to do something like this — they want a permit to do something — they really should be able to just do it and allow those people who have a problem with it then to go to the courts, or I believe they should go through the legislative process, which is what happens in all walks of life. If you want a permit to open a nuclear power plant, if you want a permit to open a TV station, there is this legislative process. It’s open. It’s broadly participatory.
Decision makers take in as much information as they possibly can. They cast a wide net. They filter through that information, and then they make a determination based upon the facts. That’s the way it should be done, I believe. Currently, of course, there are privileged players who are the only ones who can give information. It is not participatory, and the policymakers themselves feel constrained. And unfortunately for the policymakers, they are held accountable for those decisions — decisions that they really do not have free rein over. Their hands are tied.
I think everybody involved would be better off having a very broadly open participatory process. Or let’s just have a process in which there’s no regulation and allow people who own property just to do these things. And then if affected property holders feel that their property rights have been violated, let them go to the courts. At the moment we have this kind of bastard child of the political process that really doesn’t help anybody and creates tremendous frustrations all around. And as I said, essentially [it] is unconstitutional.
Kokai: The solution here would be for the General Assembly to get rid of this?
Taylor: Yes, I mean, I think so, and have a legislative process. And then, if people feel their property rights are violated, go to the courts. The courts, Mitch, are much better equipped than local planning boards and town councils to make judicial decisions.