Prison Farm Development Not Dead Yet

If at first you don't succeed, try and rezone again.

The Guilford County Planning Board shot down a move by Guilford County Manager Brenda Jones Fox to rezone the Guilford County Prison Farm near Gibsonville for development. However, several sources said that, in the next two weeks, advocates for rezoning the Prison Farm are going to initiate another attempt to create a corporate park on that land, and, unlike the first attempt, the new effort will follow proper channels and take matters one step at a time.

According to several Guilford County commissioners and other sources, this second attempt is expected to be much more thought out than the poorly conceived, out of the blue, rush job that failed earlier this month – a hasty rezoning request that the Planning Board defeated on a 5-to-2 vote at the Wednesday, Oct. 10 meeting.

At that time the thinking was that all Fox had to do was appeal the vote to the Board of Commissioners because she almost has six votes on that board for whatever she wants.

At the Oct. 10 meeting, Planning Board members expressed concern that there was no development plan in place, no water or sewer, and no attempt by county officials to work with residents. Planning Board members also said the land, and the ramifications of development, had not been studied to any extent, and they didn't understand the rush to rezone. In addition some board members argued the request for a zoning of Conditional Use, Corporate Park was inconsistent with the Northeast Area Plan that applies to the 618 acres that would have been rezoned.

That first effort to rezone the Prison Farm was driven largely by Chairman of the Board of Commissioners Skip Alston, Greensboro Economic Development Alliance President Dan Lynch and Fox, and it was assumed that one of those three would appeal the Planning Board's decision.

So it was something of a mystery last week when Alston and Lynch began quietly informing interested parties that neither the county nor area economic development officials would appeal the Planning Board's decision.

Immediately after the Planning Board voted down Fox's rezoning request, Lynch and Alston both said there would be an appeal.

Commissioner Billy Yow led the opposition to the rezoning at the Planning Board's Oct. 10 meeting, and Yow said that Lynch told him right after that decision, "We'll see you on Nov. 15" – the earliest date an appeal could be heard by the Guilford County Board of Commissioners.

On the day after the meeting, Alston also said an appeal would be filed.

However, that appeal never came.

That was a relief to opponents of the rezoning, but no one should think for a second that the lack of an appeal means Alston, Fox, Lynch and other advocates of the plan have given up.

This week Alston said the corporate park project will be right back on track soon.

"We will make a proposal in early November," Alston said. "I don't want to say what that will be yet."

Yow said he knows exactly what the proposal will be: a feasibility study for developing the Prison Farm followed by another rezoning attempt.

Yow said the proposed study will, among other things, provide soil analysis, examine roads and traffic patterns and assess the water, sewer and other infrastructure needs.

Yow said the advocates of developing the land are still going about it the wrong way because, before anything is done, there should be a public hearing to find out what county citizens want to do with the land.

Commissioner Paul Gibson said he thinks those who favor a corporate park on the Prison Farm land will push ahead, but this time, Gibson said, he expects the request will follow the legal chain of command and will be a more deliberate approach to a rezoning – starting with the comprehensive study of the area.

Nearly all of the commissioners have said all along that they don't object to developing the Prison Farm land. However, many commissioners didn't want to charge ahead with a plan that was being shoved through quickly. Even if the land had been rezoned immediately, it would have taken well over a year to get city water and sewer and other necessary infrastructure improvements in place, and even longer than that for road expansion.

Gibson said he has never understood the rush to develop the Prison Farm and the sudden request by the manager in late September to have the land rezoned immediately.

In early September, Lynch informed the county commissioners that a company was considering putting a $100 million food distribution center on the land. That project supposedly would have brought 500 to 600 jobs to the county but it would have also brought 500 to 700 trucks a day to the roads in that area. However, that company pulled out the day after Lynch first informed the board the company was interested in the Prison Farm land.

The first attempt to rezone the farm came so fast, and with so little warning, the commissioners never even had a chance to discuss the best zoning category for the land – if, that is, it should be rezoned in the first place.

Yow said he thinks he knows where the fire is.

"Brenda and Skip want to pad their resumes," Yow said.

Yow said that Fox and Alston – who'll both be gone from county government in a few months – want to see a giant corporate park on the land so that, in the future, they'll be able to point to it and say, "Look what we did."

Lynch said there's a legitimate reason for the county to rezone the Prison Farm property now – even without any infrastructure in place.

"Companies don't want to have to worry about a rezoning battle," Lynch said.

He said it's true it would have taken a long time to get water and sewer to the site, however, Lynch added, having the land already rezoned is one less obstacle to attracting companies.

"They are looking for a reason not to come here," he said of potential occupants of the proposed corporate park.

Lynch said one thing that caused Guilford County to be passed over for the large food distribution center was that the land wasn't already rezoned. He acknowledged that other major factors, such as the lack of water and sewer, also played a role.

Earlier this year, Lynch, in a closed session with the commissioners, requested the county pay half of the cost of a roughly $100,000 study of the Prison Farm's development potential. In that closed session, the board decided unanimously not to do so, but now the commissioners are expected to take another look at funding such a study.

Yow said advocates of a corporate park only dropped the first effort to rezone because appealing the Planning Board decision would have resulted in a legal mess.

"It would have been a quasi-judicial hearing," Yow said of an appeal.

In some zoning cases, an appeal of a Planning Board decision to the Board of Commissioners can be a quasi-judicial hearing, which carries all sorts of legal requirements – including the prohibition that participants must not have already made up their minds on the matter or made public statements about it.

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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.