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.

Dec 232013

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


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.

Dec 092013
Mayor's Mug Shot

Mayor’s Mug Shot

From the EJ:

Mayor, board members topic of special Waxhaw meeting

Dec. 07, 2013 Heather Smith

WAXHAW — Mayor Daune Gardner is one of topics of a special called meeting of the Waxhaw Board of Commissioners.

Outgoing Mayor Pro Tem Erin Kirkpatrick called the meeting Monday at 11:30 a.m. in the town hall conference room to talk about several topics. One topic is Gardner’s “office, reimbursement for improperly charged Town credit card expenses, expenses charged to Town Credit Card non-compliant with Travel/Reimbursements and budget.”

Any action would be the last for outgoing members of the board. It comes a day before Waxhaw’s new commissioners take their oaths of office. The timing did not escape Gardner’s notice.

“As a matter of precedent, it is customary for outgoing elected officials to defer items of new business to the incoming members, particularly items that may be controversial,” Gardner wrote in a letter to the editor.

The commission will also discuss two other volunteer town board members, William Hardman and Jason Loseke, who were members of the board of adjustment and parks and recreation committee respectively. Hardman was also an unsuccessful candidate for town commissioner.

Gardner drew criticism in May when she was charged with DWI by a Waxhaw Police officer. As news of her arrest spread, so did allegations she broke town policy by using the town credit card to pay for alcohol. The board of commissioners voted to censure her.

Gardner is still awaiting a decision on her charges. Her next court appearance is Jan. 15, 2014.

The story above doesn’t begin to tell everything. That would take a book.

I wish to point out a couple of inaccuracies in the mayor’s comments. For one, the issue of the mayors credit cards and repayment is old business, and Waxhaw has a long history of the outgoing board conducting business prior to the new term and seating of new members.

From my anonymous sources, this meeting was not ALL the doing of Mayor Pro-Tem Erin Leigh Kirkpatrick, two other commissioners asked for items to be added to the agenda. The latest word is that one of those two have now decided to skip the meeting — We will have to wait an see.

The mayor earned her second DUI last May. She has DEMONSTRATED a pattern of alcohol abuse, irresponsibility and PUBLIC ENDANGERMENT.

HOW many people have had their lives disrupted or destroyed by drunk drivers?

In addition to that, there are unresolved questions concerning the USE of TOWN CREDIT CARDS to buy ALCOHOLIC BEVERAGES. In a previous meeting the commissioners voted to remove the mayors travel budget and credit card privileges. The fact that SHE WAS GIVEN THEM TO BEGIN WITH boggles the mind.

Hey WAXHAW are your taxes SO LOW that you can afford to fund MAYOR PARTY anywhere she chooses to go.

TAXPAYERS and CITIZENS deserve better, but to all the in MAYOR EXCUSE SQUAD one note:

If the mayor was a regular citizen, I wouldn’t have a thing say about her behavior, but she is an elected official. Elected OFFICIALS must be held to a higher standard. We can’t allow sympathies or other emotion to cloud the issue.

She has embarrassed the citizens of WAXHAW, making you a laughing stock of the region. Nowhere that your mayor goes can she hide the facts, nor is the ridicule of Waxhaw. Stories about the Mayor’s behavior have been in the Raleigh media and of course the internet.

WE have to regain control of our elected officials, but it starts at the local level. YOU HAVE TO CARE AND DEMAND ONLY THE BEST or you get what they are only too happy to give you.

BY THE WAY, in tomorrow’s regular meeting, YOUR MAYOR has placed on the agenda, requests to restore her travel budget and credit card privileges.

Apparently the mayor has certain expectations of the new board members, taking the OATH OF OFFICE tomorrow night.

Dec 032013

Removing an “advisory” board is going to solve the problems? Seriously?

The Commissioners can’t manage a sewer plant, but some how the collective brain trust and over centralized bureaucracy is going to do a better job.

With no advisory board, the problems and issues facing DSS will disappear behind the iron curtain of commissioner secret communication and apathy.

But don’t worry, what you don’t know won’t hurt you.

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

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

The WBTV reports highlight major issues of Union County investigating itself.

Oct 302013

Since last June, the Waxhaw Town Commissioners have been grappling with the ethics issue brought to light when the Mayor, Daune Gardner was arrested for driving while impaired by a Waxhaw police officer.

Initially, the Commissioners voted unanimously to begin the censure process regarding alleged Town Ethics violations and misuse Town issued credit card involving the purchase of alcohol by the mayor. As the effort moved forward, Commissioners realized at some point that a legal process would rack up a hefty bill and in the end, they would be unable to remove the mayor from office.

The following Resolution proposed for the Special meeting on Saturday is the best solution available to Town Commissioners to condemn the actions and behaviors of the mayor and hopefully revive the faith of Waxhaw citizens.