News analysis: Controversy over Davidson school a lesson in self-governance

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DAVIDSON – Democracy is a funny business – both ha-ha and just plain weird.

Writ large – as in the federal shutdown – the comedy and tragedy of our system of government fills the cable news network airtime. But on a small-town level – think sewer lines and sidewalks – it is often at its most dramatic because it is so close to home.

Or, literally, in one’s home.

Such is the case with the saga of the Davidson Green School, which won the administrative approval of town planning manager Ben McCrary over the summer to minimally renovate and occupy a former single family home on South Main Street because it is a village infill zone that allows for both single-family residential and civic buildings.

The project was then re-approved Monday in a 3-2 decision by the rarely called-upon Davidson Board of Adjustment – it last met in January 2009 – after a neighbor appealed the decision.

That neighbor, architect John Burgess, complained that the house does not meet some of the town’s requirements for a civic building and therefore required a public hearing before the town’s Planning Board, Board of Commissioners or Board of Adjustment instead of an administrative decision.

The five-hour meeting of the Board of Adjustment – a quasi-judicial hearing with a witness stand, lawyers crying “Objection!” and everything but a bailiff, one of whom would have been handy when things got out of order, which was pretty often – made for great theater.

Jennifer Jakubecy, co-founder of the Green School, wept on the witness stand. Later, as the hearing wound down, Laura Grosch, one of several other school neighbors aligned with Burgess – and wife of famous Davidson artist Herb Jackson – stood up in the gallery, well after she had already had her chance on the witness stand, and demanded that she be allowed to cry, too.

John Chesser, senior analyst for the UNC Charlotte Urban Institute, chaired the five-member Board of Adjustment, which is made up of planning board members. Chesser, acting as both judge and jury foreman, struggled valiantly, though far more often than not unsuccessfully, to keep the meeting’s focus on the facts.

But the meeting was largely run by the six lawyers seated at three tables and the dais in the standing-room-only boardroom of Davidson Town Hall, which (note: this will be important later) is a one-story building.

At the Burgess table, prosecuting the case, sat two well-known land-use lawyers in Mecklenburg County. When in Davidson, both are usually found representing developers who want to successfully get a project through the town’s careful and deliberate land-use process. This time they were trying to quash one that had already been approved.

Susan K. Irvin, an independent lawyer, is a familiar face at planning, traffic, architectural review and planning board meetings in Cornelius, Davidson and Huntersville. She argued that if the town zoning ordinance could be interpreted as allowing houses to be civic buildings in a village infill zone, it might as well also allow them to become gas stations or department stores.

Less vocal – but no doubt more ominous in the eyes of Davidson officials — was her co-counsel, Roy Michaux of K&L Gates, the uptown Charlotte law firm that is often involved in huge development projects.

Michaux has represented developers in two lawsuits against the town that resulted in the town making undisclosed out-of-court settlements. Both of those cases came before the Board of Adjustment, which ruled for the town in both instances, before they wound up in the courtroom. This has increased speculation among Davidsonians that Monday’s decision will be appealed to the N.C. Superior Court. Burgess on Tuesday said he was not prepared to comment.

The school was represented by two relatively young and ready-to-rock lawyers, Greg Murphy and Bobby Bowers, who hail from an even more high-profile uptown Charlotte firm, Moore & Van Allen.

Murphy’s attitude was pretty much: “Why are we here?” and “Especially for five hours?” The pair argued that the zoning ordinance made exceptions for one-story civic buildings and gave McCrary the decision-making authority to grant variances in cases not requiring rezoning. Period.

That argument, and Murphy’s and Bowers’ questioning, sought to paint the complaints by Burgess and the other neighbors as just another NIMBY – Not In My Back Yard – and not about Davidson’s present and future developmental character, which is what the neighbors said they were concerned about. In fact, Murphy and Bowers were saying, the neighbors cared only about their property values.

Rick Kline, for 37 years the Davidson town attorney, echoed much of what Murphy and Bowers had to say, but also spent time establishing the bona fides of McCrary, who was the man in the hot seat for much of the night. Kline called on longtime Davidson Town Manager Leamon Brice to testify that McCrary had his confidence to make tough calls on the nuances of the zoning ordinance.

McCrary, it was established, has a degree in geography and urban and regional planning from the State University of New York at Albany and interned at the Berkshire Regional Planning Commission in Massachusetts. He worked for four years as city planner in Newton before joining the planning staff in Davidson – where he also had interned in college – three years ago. He was named Davidson planning manager in August 2012.

The sixth lawyer was the venerable Bob Blythe, on loan from Huntersville, where he has been town lawyer since 1963, meaning he has seen astronomical development growth. He is also, incidentally, a Davidson College alum. Blythe acted as the board’s counsel because Kline was busy defending the town. Yoda-like, Blythe rarely spoke, but when he did, his word was generally taken for law.

As vehement and uncomfortable as things sometimes got, everybody was chummy and on a first-name basis, the attorneys sometimes using each other’s PowerPoints to illustrate their own powerful points.

And as entertaining as the meeting was – and as far afield from the crux of the case as some of the testimony by Burgess and his neighbors got – real issues and penetrating questions about Davidson’s zoning ordinance, and indeed about the philosophy of zoning in general, came to light.

Davidson is known among developers and builders as having one of the most stringent zoning ordinances anywhere; it bans drive-thru windows, requires gas stations to look more like general stores, and is one of the few such ordinances in the state requiring residential developers to provide a certain number of affordable homes in every project. When pressed, many of these developers will admit that the ordinance – which town officials say seeks to preserve Davidson’s charming yet sophisticated small-town college feel and has blocked the sprawl and developmental imbalance headaches like those in the contiguous town of Cornelius – has succeeded in making Davidson a great place to live. That means it is also a lucrative place to develop, despite the difficulties involved.

Yet here was a rare case in Davidson where the zoning ordinance, and the town’s application of it, was being called into question not by developers but by the residents officials say it seeks to protect.

While Murphy might have been onto something with his why-are-we-here approach, the conflict in the ordinance was real. The Davidson ordinance does pretty clearly say civic development should be two stories.

Brice and McCrary would not comment after the meeting on why it says that, given that most of Davidson’s church, government and school structures are one-story. At least one of those buildings – the Quaker Meetinghouse – was once a single-family residence. Burgess, by the way, acting as a member of the Davidson Design Review Board, voted in favor of that renovation project.

Town spokeswoman Cristina Shaul would note only that “most of Davidson’s one-story civic buildings were constructed prior to our ordinance,” created in 2001.

Good point, but if the idea is to preserve Davidson’s character – during the meeting McCrary several times cited “precedent” as being the primary factor behind his reasoning – why the change-up in the ordinance?

Davidson resident David Boraks is editor of davidsonnews.net, which has done a heck of a job covering the Green School affair, and has his finger on the pulse of Davidson. He had this postgame observation: “Commercial buildings are also required to be two stories. I think the idea is to increase density, particularly in the downtown area. That’s still a future thing.”

If that’s accurate, and it sounds right given the town’s land-use record, why grant the variance? The ordinance says exceptions to the two-story rule should be granted by “necessity.” Irvin repeatedly asked: What does that mean?

That question leads to this one: Why is the town zoning ordinance written with so much room for interpretation, as are almost all such ordinances?

Which, by induction, leads to yet another question: If they are generally so dependent on staff and board judgment, what is the point of zoning ordinances at all?

Shad Spencer, the newly appointed interim zoning enforcer for the city of Charlotte, got at the nub of it in a recent interview when he said the city’s zoning ordinance and approval system were set up to give the staff and its elected and appointed boards the latitude to decide “what was the intent” of a project, “does it support the spirit of the code, is it good planning practice?”

There it is. The spirit of a law is a hard thing to define and legislate. Zoning ordinances are guidelines bending toward a larger goal.

The evidence and facts presented at the Davidson Board of Adjustment Monday night indicated that the school followed the two most overarching guidelines clearly stated in the town’s ordinance: Schools are allowed in village infill; so are minimal, low-impact renovations that preserve a structure’s residential look and feel. Jakubecy and her designer, architect David Malushizky of the Davidson office of the St. Louis-based Lawrence Group, say that is the school’s intent.

By comparison, the guideline seized upon by Burgess, et al., the two-story business – plus a few others involving things like driveway curb cuts, curbed parking-spot dimensions and screening of trash receptacles – were, Burgess admitted in an pre-hearing interview, really beside the point.

His point wasn’t to see the school build a typical two-story school structure next to his house, which would have had exactly the effect he was fighting: changing his neighborhood’s residential character.

His point was to stop the school from occupying the house by any means necessary, which in this case meant citing chapter and verse of the zoning ordinance’s two-story guideline about civic buildings.

It is exactly here that interpretation of a zoning ordinance is necessary.

And good.

The school might not have met a few particulars – particulars the code is careful to say are subject to interpretation by the planning manager. But it did meet Spencer’s “the spirit of the code” test.

That spirit, in the case of the village infill zone in Davidson’s zoning ordinance, is to create and preserve a purposeful mix of residential and civic buildings. The purpose of the village infill zone is to mix schools and daycare centers and libraries and places of worship into the fabric of the neighborhood, as they so often are in neighborhoods in towns large and small across the country, to make them accessible and walkable, thereby minimizing one of the complaints by neighbors of the Green School: increased traffic.

“There are schools and churches in neighborhoods throughout Davidson,” Kline said. “We want schools and churches where the people are.”

Burgess and his group of like-minded neighbors got their hearing Monday night. And then some.

At their hearing, they and Burgess’ legal team argued the particulars that suited their purpose, an aspect of civic development the town wants to encourage in future, and argued them pretty exhaustively.

But the spirit of the code, its overarching and supreme purpose, won the day. Barely. But still.

The last word goes to Murphy, who neatly summed up his I-don’t-know-what-we’re-doing-here argument by saying that the time to challenge this portion of the zoning ordinance was in 2001, when the law was approved by the Davidson Board of Commissioners.

One might argue the Board of Commissioners back then was lazy, or uninformed, or had some nefarious purpose.

Or one might say the wisdom of that board was this: The effectiveness of a zoning ordinance often lies not only in the law’s particulars but in its intent, which is why such ordinances are often stronger for their ambiguities.

And one of the reasons why democracy, particularly writ small, is such a funny business.