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Usually, those come in planning disputes with a special-use permits. However, Yow said he believes a quasi-judicial hearing is what would be required in this case even though there is no special-use permit involved. He said the situation is so complex on so many levels that a quasi-judicial hearing would be the only fair way to proceed, and he said the commissioners couldn't take part.
Regardless of the specifics, one thing is certain: An appeal would have resulted in a giant legal quagmire whether it required a quasi-judicial hearing or not. Yow points out that the county commissioners would be hearing a case on which each of the commissioner's positions have been stated publicly as well as the fact that the county would be hearing an appeal of a Planning Board decision regarding county-owned property, which he calls a clear conflict of interest. Yow also said legal issues arise because the Board of Commissioners appoints the Planning Board members.
The commissioners are already firmly on the record as to where they stand. At the Thursday, Oct. 4 Board of Commissioners meeting, the entire board discussed the issue at length and Yow's motion to kill Fox's rezoning request failed on a 5-to-6 vote. And, at the Oct. 10 Planning Board meeting, Alston and Commissioner Linda Shaw spoke in favor of rezoning the Prison Farm land, while Yow and Commissioner Kirk Perkins spoke against it.
Therefore, according to Yow's theory, if a quasi-judicial hearing had been held to hear an appeal of the Planning Board's decision, none of the commissioners could legally participate.
Since an appeal, according to Yow, who isn't an attorney, could likely not have gone to the Board of Commissioners, any appeal of the Planning Board decision would have been heard in NC Superior Court.
Yow said that, when Alston and Lynch thought the appeal would go to the Board of Commissioners, they were confident the commissioners would decide against the Planning Board vote with the same six votes that killed Yow's attempt to stop Fox's request at the Oct. 4 Board of Commissioners meeting.
But now, Yow said that, if the board had heard an appeal of the county's rezoning request, he could guarantee it would have ended up in court.
"Someone would file a lawsuit," Yow said, adding that they would have a strong case.Guilford County
Attorney Mark Payne said that, at this point, he isn't sure about whether a hearing of an appeal would have been quasi-judicial or not – nor, he said, is he sure about many other things related to this case.
"I'm still looking into it," Payne said.
He said he had calls into four attorneys who are well versed in rezoning law.
The short answer to the question is that Payne is no doubt very pleased an appeal has not been filed in this case.
When Richard Ducker, an associate professor of public law and government with the UNC-Chapel Hill School of Government, was asked about the situation, he said he didn't know the details of the Guilford County
rezoning battle, but he said that in some cases the fact that commissioners have already weighed in on the issue before hearing an appeal on county property could be a legal concern.
"That would cause problems," Ducker said.
Complicating the matter, many complain, is that the rezoning request was made by the county manager without authorization from the Board of Commissioners.
Ducker said the decision to rezone county property falls in the domain of the county commissioners.
"That's a legislative decision taken by elected officials," he said.
He said any manager who moved to rezone county property without first consulting the Board of Commissioners would no doubt do so at his or her peril.
"That would probably be enough to get a manager canned," Ducker said.
Fox no doubt was in communication with Alston – but all of the other commissioners seem to have found out in an email after the fact that Fox had filed the rezoning request.
Over the last two years especially, Fox and Alston have appeared to be running county government largely by themselves, and the two have often seemed annoyed that the laws of the state sometimes require them to have a vote of the Board of Commissioners to do some of the things that the pair wants to do.