Municipal – Zoning – Truck Stop – Recused Council Member

Campbell v. City of Statesville (Lawyers Weekly No. 012-193-16, 14 pp.) (Ann Marie Calabria, J.) Appealed from Iredell County Superior Court (Mark Klass, J.) N.C. App. Unpub.

Holding: Statesville City Council member Michael Schlesinger lived half a mile from a proposed truck stop, his home value might be affected by the truck stop, and – before his election to the City Council – he vocally opposed the truck stop, going so far as to participate in litigation opposing the truck stop and to set up a website devoted to opposing the truck stop. This record shows Councilman Schlesinger had both a fixed opinion not subject to change and a financial interest in the outcome of the proceeding; therefore, the council did not err by granting the truck stop applicant’s motion to recuse Councilman Schlesinger from participating and voting during the hearing on the truck stop plan.

We affirm the superior court’s order upholding the City Council’s approval of the truck stop plan.

The superior court examined the record anew and determined that Councilman Schlesinger’s prior comments, activities, and litigation demonstrated a fixed opposition to the plan, which would harm the applicant’s due process rights to an impartial and unbiased consideration of its application. The superior court went even further, noting that the inclusion of Councilman Schlesinger, particularly after his participation in separate litigation in a related matter, would create the appearance of impropriety in this quasi-judicial proceeding. The superior court did not err in its determination that the City Council’s decision to recuse Councilman Schlesinger was not improper.

Since the truck stop application demonstrated compliance with the city’s Unified Development Code, the council properly shirted the burden to petitioners to produce evidence that contradicted the applicant’s prima facie case. However, petitioners’ evidence of impact was limited primarily to assertions of non-compatibility with surrounding property and was rebutted by the evidence before the council.

Affirmed.