Can’t ignore facts or law on the mall
Published 12:00 am Sunday, October 5, 2014
I blew it.
When the Salisbury Planning Board approved Rowan County’s request for a special use permit to move county offices to the West End Plaza (formerly the Salisbury Mall), I voted against it.
On these pages I suggested that approval might be appropriate if the city and county could resolve some long-standing differences on contentious issues.
My vote was right, but my suggestion was wrong. As a lawyer, I should know better. This is a legal issue, not an emotional issue.
For government to operate a facility in the Highway Business zoning district, it must obtain a special use permit. A “SUP” can be granted only through a quasi-judicial process which, like any court process, requires two essential elements: factual evidence that complies with the law.
The facts: The county purchased and owns the mall. The county wants to move governmental agencies to the mall. Surrounding property values won’t be hurt. The county testified that the appearance would not be changed, the fire marshal approved, and that it meets building code. (Usually experts must testify to the latter factors.)
The ordinance also requires that “all required principles and specifications of the ordinance” be met. Not some, but all. To that end, the proposed use must:
1. Provide “better services;”
2. Satisfy the “intent” of Highway Business zoning;
3. Support new business formation;
4. Support growth in the city’s older commercial areas; and (not or)
5. Contain a diverse mixture of retail, office, restaurant and service uses.
If only one of those elements is lacking, the permit must be denied. Thomas Jefferson and U.S. Supreme Court Justice Scalia argued that courts can’t change bad laws even if they disagree with them.
Even if the county’s proposed use is good, it fails to meet those five requirements.
First, will the relocation of government offices to a commercial location meet the “better services” test? The term “better” is tough. The 2012 county commissioners agreed to locate the school central office at 329 S. Main St. Costs of $500,000 were incurred. Then the 2013 county commissioners decided to discard that investment, even in the face of increasing construction costs, to seek a “better” location. The 2013 county commissioners also thought it “better” to de-annex the airport from the city. Filling a vacancy in the mall creates another vacancy elsewhere. Is that “better?”
Second, does the “intent” of Highway Business zoning include government offices? No. In fact, Highway Business does not allow government offices without the SUP.
Third, relocating government agencies into a commercial building is neither “business” nor “new formation” unless the word “business” includes “government” and unless the words “new formation” include “relocation.”
Fourth, relocating existing government agencies into a 29-year-old structure is neither “growth” nor “in the city’s older commercial area.” Relocation is not growth. The mall is four miles from downtown. Some 225 years ago, George Washington spent the night in the 100 block of North Main Street and Andrew Jackson lived in the 200 block of South Main Street. That’s old. The mall is 20-something. That’s not old. To qualify for the National Historic Register, a property must be at least 50 years old or “exceptionally important.” The mall is neither.
Finally, relocating two small government agencies is neither “large scale” nor “commercial development” nor “retail, office, restaurant or service use.” The county argued that “service use” includes government; however, the ordinance clearly did not intend to include “government” as a “service use” since another ordinance requires government to obtain a permit to be in Highway Business.
So, I blew it, suggesting support for the permit if the city and county could make nice with each other and work out some differences.
Even if the cause is good, neither the evidence nor the law supports issuing the permit.
The county’s purchase of the mall continues to generate widespread controversy. Perhaps it will be the catalyst to usher in a new day of county and city cooperation. Imagine the irony.
David Post lives in Salisbury.