North Carolina Land Use: Requirement of Unbiased and Impartial Decision Makers

When landowners seek a change in zoning, apply for conditional use permits or otherwise seek approval to build or develop their land, under North Carolina law, landowners are entitled to due process. Among other things, due process means that landowners seeking approval to build or develop on their land have the right to be heard before an unbiased and impartial "decision maker" whether the "decision maker" is a zoning board, planning board or city council.

What does "unbiased and impartial" mean? In the zoning and land use context, North Carolina courts have defined this to mean persons whose minds are "not already made up" and who have no self-interest in the outcome of the proceedings.

The former, bias, can be located in unchangeable preconceptions about the proposed development, about the landowner, about the developer or in more generalized fixed ideas about whether private development of land is good or bad. Having knowledge of certain facts about the proposed project or about persons and entities involved is not enough. It must be shown that, prior to the deliberating process, the board or council member had predetermined ideas that were not susceptible to change. The reason that bias is impermissible is that decisions will be made based on those preconceptions and fixed ideas, NOT based solely upon evidence presented during the deliberative process. Put another way, bias means that a board or council member's vote is predetermined. That is not what "due process" means in North Carolina.

The same applies to the requirement of impartiality. A board or council member who has some vested interest in the outcome of the zoning or land use issue will decide based on that self-interest, NOT based solely upon evidence presented during the deliberative process. It is not enough that a board or council member has a general interest in the outcome of the proceeding -- the same general interest that all members of the community share. Rather, to disqualify a board or council member for lack of impartiality, it must be shown that the board or council member has a direct, personal, and concrete interest in the outcome of the particular proceedings.

A good example of how these rules are applied in practice comes from the case of Campbell v. City of Statesville, Case No. COA16-101 (NC Court of Appeals October 14, 2016) (unpublished). That case involved an application by Love's Travel Stops & Country Stores, Inc. (and others) for approval from the City of Statesville to build a truck stop on a 14.4-acre site adjacent to the intersection of two state and federal highways. The City Council eventually approved the plan. Opponents of the truck stop appealed the approval. But the City Council's decision was affirmed by the North Carolina Superior Court and then by the Court of Appeals.

Both courts also affirmed the City Council's decision to recuse one of its members -- Dr. Michael Schlesinger -- from participating and voting during the hearing on whether to approve the development of the truck stop. The developer had asked that Schlesinger be required to recuse on the grounds of bias and lack of impartiality.

On review, the Superior Court agreed that Councilman Schlesinger was correctly recused. The court noted these facts:

• Schlesinger has participated in prior litigation opposing the truck stop
• Schlesinger had previously purchased an internet domain called "Nosvltruckstop.com which was devoted to opposing the truck stop
• Schlesinger used the website to argue against the truck stop development
• The website stated: "We are firmly against any action which may lead to the approval of a truckstop at the intersection of Old Mocksville Road and Highway 64"
• Schlesinger's home was a mere half mile from the proposed truck stop and he had testified at a prior hearing that he believed the value of his home would decline if the truck stop was approved

For these reasons, the Superior Court agreed that the Statesville City Council rightfully recused Schlesinger from considering and voting on approval of the truck stop. The North Carolina Court of Appeals agreed in all respects.

For more information, and to schedule a confidential consultation with experienced and dedicated zoning and land use attorneys in Charlotte, contact Arnold & Smith, PLLC. Use our “Contact” page or give us a call at 704-370-2828. We handle land use, zoning, and condemnation legal matters in Mecklenburg County and elsewhere in North Carolina. We have offices in Charlotte, Lake Norman, and Union County.