Apr 022014
 

spinHave you ever had one of those days where you feel like you’re in a time warp? You know déjà vu all over again and again?

Stony Rushing is running for County Commissioner, after eight years of relative obscurity. Oh, he did pop-up in the 2008 Commissioner race, not as a candidate, but as the lead in a smear campaign for then (and now) Commissioner candidate Tracy Kuehler. That backfired and Tracy was elected despite his efforts.

So here we are in 2014 and what is amazing, at least to me is that we are starting right where we left off, eight years ago.

Once again the idea of an APFO (Adequate Public Facilities Ordinance) has risen from the ashes of a court of appeals decision that left Union County unprotected from the excesses of the developer controlled towns like Waxhaw and Indian Trail, who historically has been epicenter of  hyper-growth. Meanwhile the County has facilitated more growth by rescinding the water allocation policy and buying more water access from our neighboring counties.

Stony was and will likely be supported by the Home Builders and Developers as he was in past elections. The Home Builders didn’t like the APFO so Stony didn’t (and once again doesn’t) like the APFO. In fact, Stony has made it the lead issue of his 2014 campaign, once again characterizing has unconstitutional in North Carolina, in what is now almost generic, Stony only tells half the story.

Here is the simple fact, Union County’s APFO was overturned in NC Appeals Court for only one reason. Impact Fees! In the fall of 2006, County Commissioners voted 3-2 (Stony against) in a now famous (fix’n to get a whipping) meeting, now steeped in Union County lore. This original AFPO as presented by the Union County APFO Task Force DID NOT include mitigation fees of any kind and was eventually its undoing.

Union County still needs an APFO to prevent the building boom from once again overwhelming our school facilities.

The following article is from NC School of Government professor Richard Ducker points out that court objected to the Voluntary Mitigation Fees (as impact fees) and suggested that a straight APFO would be within the state statutes.


Coates’ Canons: Are Adequate-Public-Facility Ordinances Adequate?

With respect to many of the adequate-public-facility ordinances adopted by North Carolina counties affecting public schools the answer is apparently no. On December 8, 2009, the North Carolina Court of Appeals in Union Land Owners Ass’n v. County of Union, struck down Union County’s high-profile public-school adequate-public-facility ordinance (APFO) on grounds that the ordinance was not based on appropriate state enabling authority. Similar ordinances have been or are currently enforced in the counties of Cabarrus, Lincoln, Stanly, Franklin, and Currituck, all rapidly growing counties on the fringe of metropolitan areas. Are local governments now prevented from taking the adequacy of public facilities into account in making future zoning and land subdivision decisions?

Planners have long advocated directing growth into areas that currently enjoy excess public facility capacity or that will be served by public facilities concurrently with the build-out and occupancy of the development (hence the term “concurrency”). Generally the idea with respect to public schools is that if a proposed development’s impact will not overburden the capacity of schools serving the development, the project is approved. If the impact will overburden the system, the project is denied approval. What distinguished the Union County ordinance were regulations that allowed the county to approve a development subject to certain conditions intended to mitigate the impact of a project on school capacity. Possible conditions included: (1) deferring initiation of development for five years; (2) postponing development until school capacity became available; (3) scheduling the development to match the rate of school capacity growth; (4) redesigning the proposed development to reduce the impact on school capacity; (5) requesting minor plat approval so as to exempt the proposed project from the other ordinance requirements; (6) offsetting any excess impact on school capacity resulting from the proposed development by providing a voluntary mitigation fee (VMF) to the county to build or expand schools; and (7) constructing school facilities to offset the capacity deficiency. The approval condition that apparently attracted the most attention from the court was the “voluntary mitigation fee.”

The court was clearly influenced by the case of Durham Land Owners Ass’n v. County of Durham, 177 N.C. App. 629, 630 S.E.2d 200 (2006), which invalidated Durham County’s public school impact fee for lack of statutory authorization. The court also noted the fact that Union County had sought but failed to obtain local legislation authorizing school impact fees in 1998, 2000, and 2006. The APFO may have seemed like a back-door attempt by the county to gain revenues from developers for schools despite the absence of express authority.

The Court of Appeals examined the zoning and land subdivision control enabling statutes. G.S. 153A-341 allows counties to use zoning “to facilitate the efficient and adequate provision of . . . schools . . . and other public requirements.” G.S. 153A-331 allows county subdivision ordinances to “provide for the orderly growth and development of the county . . . in a manner that will avoid congestion and overcrowding and will create conditions that substantially promote public health safety, and the general welfare.” The broad reach of this language made clear that the problem in the eyes of the court was not necessarily the purpose of APFO regulations; instead the difficulty apparently was the means employed by Union County in achieving these purposes. The court found no zoning or land subdivision authority to “impose fees or similar devices upon developers of new construction.” If the use of the VMF was a key tool implementing the ordinance, perhaps the outcome of the Union County case should come as no surprise.

How would a “pure” APFO ordinance fare that would link development approval to public facility adequacy but without a “mitigation” fee option? Discretionary standards involving public facility adequacy are sometimes used by North Carolina local government in ordinary land subdivision plat approvals and decisions involving special-use and conditional-use permits; financial mitigation measures are not involved. Perhaps an APFO system more clearly established to manage the pace of growth rather than to assign public facility costs to developers would have much better chance at passing the legal test.

What should give local government attorneys and planners pause, however, is the Spartan nature of the analysis of the Court of Appeals. The opinion includes little mention of the many North Carolina cases interpreting our zoning and land subdivision control authority. No mention is made of the case law from other states in which similar APFO provisions were upheld, a matter analyzed in amicus briefs. No reference is made to the difficult planning circumstances in which Union County has found itself during the last decade. There is no apparent recognition that inability to slow down the pace of development in rapid-growth counties to coincide with the pace of school construction may result in counties using other defensible measures to slow or halt residential development. There is little express guidance about what it would take to fashion a legally defensible alternative regulatory system.

There is another shoe that may drop that is not evident from a reading of the opinion. In the Durham County impact–fee case of 2006 the Court of Appeals ordered the illegally collected fees to be refunded, but found no authority to enable developers to collect interest on the amounts due. In 2007 the General Assembly enacted G.S. 160A-363(e) and G.S. 153A-324(b), both of which provide that if a development fee or tax, or even a monetary “contribution,” is found to be unauthorized, then the local government must return the collected taxes, fees, or contributions along with six percent (6%) annual interest. It appears that the legislation was adopted in anticipation of this very kind of Union County litigation.

On August 13, 2009, before the Union County decision was announced, a Cabarrus County superior court judge invalidated certain APFO provisions in Cabarrus County’s unified development ordinance on similar grounds. Cabarrus, Stanly, Lincoln, Franklin, and Currituck counties need to review their options and are trying to determine whether their APFO regulations can be reworked to conform with existing authority. The story also continues in Union County. The Union County Board of Commissioners voted on December 14, 2009, to petition the North Carolina Supreme Court to accept the case for discretionary review.

via Are Adequate-Public-Facility Ordinances Adequate? « Coates’ Canons.

Feb 122014
 

Due to the overwhelming response of UCPS parents from all parts of the county, a group has compiled real solutions based on facts, data and statistics gathered from committees formed from tthe January Rally in Wesley Chapel.

The Joint-Committees is striving in a continued effort to maintain a quality educational environment for ALL UCPS STUDENTS. We will continue in a united effort to tell our current BOE that redistricting is not the answer.

And to remind our elected officials that they have the opportunity to table the proposed redistricting and work with their constituents in creating solutions that will benefit all students and families.

Finally, this is not about overcrowding; the BOE numbers show the highest we go during this temporary bubble is 1041 – 4 years from now.

Please view the following presentation:

Please NOTE: The maps in the presentation are used to indicate the schools location, not to indicate proposed cluster boundaries.

Jan 252014
 

WS0607_Cupcake-Wars-Angry-Birds-01_s4x3_lgAt the recent Union County Board of Education work session(1) concerning the proposed and extremely controversial student redistricting, a heckler(2), as described by the news media, shouted “Suck it Cupcake!” while board member Kevin Stewart was speaking. A chorus of hoots, howls and laughter followed; most likely in response to the character of the questions Mr. Stewart was directing at Dr. Ellis and Dr. Webb, but the timing was perfect. Very few people know what was being referenced by the remark, so here is the back story.

Sherman, set the Wayback Machine(3) to March of 2012. If you remember, the 2012-13 County Budget cycle was an occasion where members of the Board of Commissioners laced budget negotiations with open attacks on UCPS and the school board. The verbal criticism included colorful phrases like “spending like drunken sailors” from Jonathan Thomas or “stop spewing your bald face lies” by Todd Johnson, which only served to ramp up the animosity between boards. (View Jonathan Thomas Budget Comments of 2012 @19:40 minutes)

In an attempt to sway public opinion, Commissioner Todd Johnson (according to court testimony) joined with Kevin Stewart to create a webpage specifically designed to exploit the state cuts in funding for teachers and teacher assistant and use them as a straw man to attack the school administration. Mr. Stewart has been an outspoken critic of school spending, the school administration and was never shy about editorializing his viewpoint.

One of the more revealing segments of sworn testimony in the August lawsuit between the Board of Commissioners and Board of Education, was the details of the of how Mr. Stewart operated the website with the collaboration of Commissioner Johnson.

The phrase shouted out in Thursday’s meeting referenced the following post of April 24, 2012 in Citizens for Union County Teachers, where Mr. Stewart closed the post with the following “Quit hiding behind skirt tails Ed and Dan, face the music; Luan, suck it up cupcake, you get paid very well to answer questions”.(4) The attack on Luan Ingram, then the UCPS Communications Director, referred to a television interview where Ms. Ingram appeared irritated at the questions being asked by a reporter. Many people found Mr. Stewart’s comments very offensive and indicative of how coarse the politics have become. Few people knew of Mr. Johnson’s involvement though many of the comments mirrored those posted in the EJ of the time.

Suck_it_Up_Cupcake

[Click to enlarge]
For years Mr. Stewart and I have been adversaries on many of the issues facing the county and the school system, we’ve had spirited exchanges on the Village Scribe and opposing letters to the editor in the Enquirer Journal. Contrary to my expectations after Mr. Stewart was elected to the school board in November of 2012, he has recognized the financial issues the school system faces and is now a vocal proponent.
 
postscript4
 
 

I have had requests for more examples of the now defunct Citizens for Union County Teachers website. When I realized that was taken offline back in June of 2012, I knew from past experience the something was up. So I archived it just in case. The Cupcake remark gave cause to explain the reference and now readers are curious.

Citizens for Union County Teachers Page 1
 

Citizens for Union County Teachers Page 2


RETRACTION: The VSO received an phone call from Commissioner Thomas, “requesting” that his name be removed from any association to Kevin Stewart’s former website. I reported on what was purported to be court testimony conveyed to me by someone who was present in court. Commissioner Thomas vehemently denied any connection. I should have noted the secondhand nature of the information.

  1. January 23, 2014 []
  2. a concerned parent []
  3. of the Sherman and Mr. Peabody cartoon []
  4. The original version of the post just said “suck it cupcake”, the “up” was added later []

Jan 152014
 

Tucker implores state to run Union County DSS until it is ‘on solid footing’

By David Perlmutt
dperlmutt@charlotteobserver.com

Posted: Tuesday, Jan. 14, 2014

A visibly angry N.C. Sen. Tommy Tucker implored state health officials Tuesday to temporarily intervene in the “day-to-day operations” of Union County’s social services department after a shocking child abuse case that involved one of the agency’s own.

Tucker told state DSS Director Wayne Black at a legislative hearing that his office needs “to dive in” to the county agency while authorities investigate the handcuffing of an 11-year-old boy to the porch of his guardian’s Monroe-area home – with a dead chicken around his neck. Wanda Larson, a county child protective services supervisor who apparently is the boy’s legal guardian, and her longtime boyfriend were arrested in November and indicted a month later on child abuse charges.

Authorities removed the boy and four other adopted children, ages 7 to 14, from the home and placed them in the charge of Davidson County DSS. Larson also was fired by the county.

Tucker, a Waxhaw Republican who represents Union County, was incredulous after Black told a joint committee of lawmakers that his office doesn’t have the authority to intervene in Union County. Black said the county Human Services Department director requested the state investigate its operations, identify any deficiencies and make recommendations. DSS is part of the Human Services Department.

By law, Black said the state could only take over if Union’s human services and DSS directors weren’t cooperative, and they found children in danger.

But Tucker argued that DSS has had considerable changeover in leadership in the past three years and that Union County commissioners dissolved an advisory board to the Human Services Department.

“I don’t know what urgency it takes that the state doesn’t need to dive in and run that agency day to day,” he told Black during the Raleigh hearing. “The board’s been dissolved and you’ve got county commissioners that do not know the system … now taking charge. You’re leaving the county … to police itself and you’re going to take a hands-off approach because there is no state statute?

“Forgive me, sir, this is unbelievable; it’s unconscionable that this could happen.”

Commissioners chairman Frank Aikmus declined to comment.

via Tucker implores state to run Union County DSS until it is ‘on solid footing’ | CharlotteObserver.com.


 

Dec 232013
 

WBTV 3 News, Weather, Sports, and Traffic for Charlotte, NC

CHARLOTTE, NC (WBTV) -

A report reviewed by WBTV shows problems at Union County DSS go deeper than the current child abuse charges against a fired supervisor.

Investigators said Wanda Sue Larson, and her partner Dorian Harper, chained an 11-year-old boy outside with a dead chicken around his neck. Now we’ve learned an audit from almost three years ago showed Union County DSS mishandled seven out of ten randomly chosen cases.

In November 2013, Union County officials asked the state to review all the cases Wanda Sue Larson handled in her ten year career as a child protective supervisor.

But Union County Commissioners said they were not aware that a 2011 report done by the North Carolina Department of Health and Social Services showed that out of 10 cases reviewed by the state only 3 conformed to the state’s standards as being handled properly. One family waited six days for a DSS worker to investigate a serious child abuse complaint.

A reporter with the Associated Press, Mitch Weiss requested the 2011 report from the state. He said in February 2011 Union County had 45 days to put together a plan to explain how DSS would address the problems highlighted in the report.

“Union County put together a plan but they didn’t implement the entire plan,” said Weiss, “So three years later you still had some of these outstanding issues.”

Commissioner Jonathan Thomas said the county is managing the problem.

“How do we fix that? Its going to be the responsibility of the county commissioners from this point forward to make sure we look and see what reports were available to us that we never got and couldn’t have gotten under the previous structure,” said Thomas, “And that we hold staff accountable to make sure we are moving forward. That’s the only way to fix this mess.”

via Report: Union County DSS mishandled cases – WBTV 3 News, Weather, Sports, and Traffic for Charlotte, NC.


State report detailed problems with Union County DSS in 2011

MONROE After a Union County child welfare supervisor was charged with handcuffing a boy she had guardianship over to a porch with a dead chicken tied to his neck, county officials sought help reviewing cases handled by her – and the rest of her department.

They asked the state Division of Social Services to review not only Wanda Sue Larson’s cases but how Union County Department of Social Services deals with all child-welfare cases – adoptions, foster care and child protection.

But what some county officials didn’t know was that the state had already found problems with the agency nearly three years earlier as part of a routine review.

via State report detailed problems with Union County DSS in 2011.