state of north carolina in the general court...

STATE OF NORTH CAROLINA

COUNTY OF BRUNSWICK

IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION

11-CvS-1301

THE ROYAL OAK CONCERNED

CITIZENS ASSOCIATION, CURTIS

MCMILLIAN and DENNIS

MCMILLIAN,

Plaintiffs,

v.

BRUNSWICK COUNTY,

Defendant.

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PLAINTIFFS’ OPPOSITION TO

DEFENDANT’S MOTION FOR

PROTECTIVE ORDER

Plaintiffs respectfully submit the following in opposition to the Motion for Protective

Order filed by Defendant on October 31, 2012:

I. STATEMENT OF RELEVANT FACTS AND PROCEDURAL HISTORY

Plaintiff Royal Oak Concerned Citizens Association (“ROCCA”) is a non-profit,

unincorporated association which seeks to protect the quality of life and environment of Royal

Oak, an historically African American community in Supply, North Carolina. ROCCA in its

representative capacity, and Plaintiffs Curtis McMillian and Dennis McMillian in their individual

capacities, have claims against Defendant under the North Carolina Environmental Justice Act,

N.C.G.S. § 153A-136(c), the North Carolina Declaratory Judgment Act, N.C. Gen. Stat. §1-254

et seq., and the North Carolina Fair Housing Act (NCFHA), N. C. Gen. Stat. § 41A-1 et seq.,

challenging as racially discriminatory and illegal Defendant’s decisions to rezone certain parcels

and locate another landfill in Royal Oak; to deny Royal Oak residents access to public water and

sewer; and to locate certain identified solid waste facilities and other unwanted land uses in

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Royal Oak. Plaintiff ROCCA seeks only declaratory and injunctive relief, as well as attorney

fees and costs. In addition to declaratory and injunctive relief, attorney fees and costs, Plaintiffs

Curtis McMillian and Dennis McMillian also seek monetary damages. Plaintiffs filed their

original complaint on June 3, 2011, amended their Complaint once as of right, and again with the

court’s permission, on June 6, 2012.1

On July 9, 2012, Defendant moved to dismiss Plaintiffs’ Fair Housing Act claims under

Rules 12(b)(1) and 12(b)(6), claiming that the Act requires Plaintiffs to first file an

administrative complaint and get a “right-to-sue” letter before proceeding in court. Defendant’s

Motion to Dismiss, ROCCA et al. Brunswick, 11 CVS 1301 (Brunswick County Super. Ct. July

9, 2012). This court denied that motion, finding that the plain language of North Carolina’s Fair

Housing Act affords plaintiffs both alternatives, i.e., filing an administrative complaint or filing a

complaint in court. Decision and Order Denying in Part and Granting in Part Defendant’s Motion

to Dismiss, ROCCA et al. Brunswick, 11 CVS 1301 (Brunswick County Super. Ct. September

13, 2012). Defendant has filed a Motion to Reconsider which asks the Court to consider

additional evidence and to reverse its decision.

This Court sanctioned Defendant’s use of the whole record test objection, even for

discovery requests which Plaintiffs argue relate to their race discrimination claims under the Fair

Housing Act, in its Order entered June 7, 2012. Proposed [sic] Order With Findings of Fact,

ROCCA et al. Brunswick, 11 CVS 1301 (Brunswick County Super. Ct. June 7, 2012). One of the

Interrogatories Defendant refuses to answer, which this Court did not compel it to answer

1 Plaintiffs’ amended complaint is captioned “Third Amended Complaint,” and adds the Environmental Justice Act

claim allowed by the Court on April 24, 2012. Order Denying Plaintiffs’ Motion to Add New Plaintiff, 11 CVS

1301 (Brunswick County Super. Ct. April 24, 2012). Plaintiffs filed a Second Amended Complaint in response to

the Court’s order, which Defendant objected to on grounds it was different than the proposed Second Amended

Complaint attached to Plaintiffs’ Motion, so Plaintiffs filed a modified Third Amended Complaint with Defendant’s

consent. Plaintiffs’ Third Amended Complaint shall hereinafter be referred to as “Complaint.”

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pursuant to the whole record test, goes directly to the heart of the inquiry the United States

Supreme Court found compelling in Arlington Heights, as it explicitly asks for information

concerning Defendant’s process for purchasing the land it intended to use for the new landfill in

Plaintiffs’ neighborhood. Def. Objections to Plaintiffs’ First Request for Interrogatories,

Requests for Documents, and First Requests for Admissions, Interrogatory 19, attached hereto as

Exhibit 1. See Smith v. Town of Clarkton, N. C., 682 F.2d 1055, 1065-66 (4th Cir. 1982)(citing

the holding in Arlington Heights v. Metropolitan Housing Development, 429 U.S. 252, 266

(1977) that types of circumstantial evidence considered when determining whether race was a

factor include: (1) statistical evidence; (2) the historical background of and specific sequence

leading up to the decision; (3) whether Defendant departed from their normal procedures in

reaching or making decisions; (4) whether Defendant's actions depart substantively from

expected behavior; and (5) the truth or falsity of Defendant’s stated reasons for the actions

taken).

Because information regarding Defendant’s decision-making process and specific

sequence of events leading up to Defendant’s allegedly racially discriminatory decisions is vital

to Plaintiffs’ prosecution of their race discrimination claims under the Fair Housing Act,

Plaintiffs appealed the Court’s decision on July 9, 2012. Plaintiffs’ Notice of Appeal, ROCCA et

al. Brunswick, 11 CVS 1301 (Brunswick County Super. Ct. July 9, 2012). However, in light of

the interlocutory nature of their appeal, the importance of the category of information Plaintiffs

are seeking, and Defendant’s contention that the June 7 Order was limited to less than a dozen

discovery requests2, Plaintiffs also invited Defendant to negotiate a Stipulation concerning the

scope of discovery to which Plaintiffs are entitled, and offered to withdraw their appeal if a

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Stipulation could be reached. A significant impetus for the Stipulation, at least from Plaintiffs’

perspective, was to avoid further dispute, particularly during a deposition of Defendant’s

witnesses, over whether Defendant or its witnesses would answer questions related to the

Arlington Heights factors.3 The parties reached a Stipulation, which was filed on October 15,

2012, and Plaintiffs have withdrawn their appeal.

On October 25, 2012, Plaintiffs noticed the depositions of County Commissioner Scott

Phillips and Assistant County Attorney Steve Stone, for November 12 and 13, 2012. Notices of

Depositions and correspondence with counsel, attached hereto as Exhibit 2. Plaintiffs

subsequently amended those Notices to occur on November 14 and 16, due to the federal holiday

on November 12 and upon learning that Defendant had calendared a hearing on its Motion to

Consolidate for November 13, 2012. Amended Deposition Notices, attached hereto as Exhibit 3.

Plaintiffs noticed these depositions only after first attempting to confer with counsel for

Defendant regarding available dates for the deponents and counsel. See copies of correspondence

attached hereto as Exhibit 4. Defendant never told Plaintiffs whether Commissioner Phillips and

Mr. Stone were available on the dates suggested by Plaintiffs’ counsel, but instead insisted that

Plaintiffs explain why they were seeking to depose these two witnesses. See Exhibit 5. Plaintiffs

responded that Commissioner Phillips and Mr. Stone were fact witnesses with information

relevant to Plaintiffs’ Fair Housing Act claims, and respectfully asked Defendant to explain the

legal basis for its contention that Plaintiffs must forecast the specific areas of inquiry for these

2 See Def. Opposition to Motion to Stay pp. 9-10, ROCCA et al. Brunswick, 11 CVS 1301 (Brunswick County

Super. Ct. May 14, 2012). Defendant omitted mention of Interrogatory 19, which was included in Plaintiffs’ Motion

to Compel and the Court’s June 7, 2012 order.

3 Defendant specifically argued, in opposing Plaintiffs’ Motion to Stay proceedings in this Court pending resolution

of their appeal, that Plaintiffs should pursue the Arlington Heights inquiry through depositions. Def. Opposition to

Motion to Stay, ROCCA et al. Brunswick, 11 CVS 1301 (Brunswick County Super. Ct. August 12, 2012). As set

out in their Motion for Discovery Order, Plaintiffs have been trying to schedule depositions with counsel for

Defendant since at least September 11, 2012.

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two deponents. See attached Exhibit 2 p. 1, and attached Exhibit 4. Defendant responded by

filing its Motion for Protective Order.

II. ARGUMENT

In support of its position that Commissioner Phillips and Assistant County Manager

Steve Stone cannot be deposed, Defendant points to the doctrines of legislative immunity and

quasi-judicial immunity, and also argues that Rule 26(c) prohibits Plaintiffs from taking these

depositions. Plaintiffs address each of these three contentions with respect to both deponents in

turn.

A. DEFENDANT’S MOTION AS TO ASSISTANT COUNTY MANAGER

STONE SHOULD BE DENIED BECAUSE ITS REQUEST THAT THE

COURT PROHIBIT THE DEPOSITION OF MR. STONE HAS NO BASIS

IN LAW.

As an initial matter, it is important to define several concepts which Defendant’s Motion

conflates: testimonial privilege, legislative immunity and quasi-judicial immunity. Legislative

immunity provides absolute immunity from suit to local legislators for acts taken in their

legislative capacity. See Northfield Dev. Co. v. City of Burlington, 136 N.C. App. 272, 281, 523

S.E.2d 743, 749 (2000)(“Individuals, including county commissioners and city council members,

are entitled to absolute legislative immunity for "all actions taken 'in the sphere of legitimate

legislative activity.'" (quoting Bogan v. Scott-Harris, 523 U.S. 44, 54, 140 L. Ed. 2d 79, 88, 118

S. Ct. 966 (1998)). That immunity “shield[s] the individual from the consequences of the

litigation results and provide[s] a testimonial privilege.” Northfield Dev. Co., 136 N.C. App. at

282, 523 S.E. 2d at 749.

Those same individuals are entitled to absolute quasi-judicial immunity for actions taken

in the exercise of their judicial function, and may avail themselves of the testimonial privilege

that accompanies the immunity. Id. (citing Hoke v. Bd. of Medical Examiners of the State of

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N.C., 445 F. Supp. 1313, 1314 (W.D.N.C. 1978); 48A C.J.S. Judges §§ 88, 89 (1981) (rule of

judicial immunity applies to those performing quasi-judicial functions).

The doctrines of legislative and quasi-judicial immunity do not apply to Mr. Stone

because, as the Assistant County Manager, he is not a member of a legislative or governmental

body, and has no legislative or quasi-judicial functions, responsibilities or authority. See

Northfield Dev. Co., 136 N.C. App. at 281-282, 523 S.E. 2d at 749 (“legislative actions” involve

"the 'establishment of a general policy' affecting the larger population" and quasi-judicial

"decisions involve the application of . . . policies to individual situations”)(citations omitted).

Mr. Stone is therefore not entitled to the testimonial privilege that would extend from either

legislative or quasi-judicial immunity.

Nor is there any basis in law under Rule 26 of the North Carolina Rules of Civil

Procedure to deny of limit Plaintiffs’ opportunity to depose Mr. Stone. Contrary to Defendant’s

assertion that the Plaintiffs are on a “fishing expedition,” their interest in Mr. Stone’s deposition

testimony stems from public documents showing that Mr. Stone likely has first-hand information

concerning, among other things, the properties that the County considered for the new landfill, as

well as Plaintiffs’ requests for access to County water and the County’s response to those

requests. See attached Exhibits 6 and 7. As described above, Plaintiffs are seeking this

information directly from Mr. Stone through a deposition only after attempting, unsuccessfully,

to get the information from Defendant under Rules 33, 34, and 26 of the North Carolina Rules of

Civil Procedure.

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B. DEFENDANT’S MOTION AS TO COMMISSIONER PHILLIPS SHOULD

BE DENIED WHERE IT IMPROPERLY SEEKS TO PROHIBIT

PLAINTIFFS FROM TAKING COMMISSIONER PHILLIPS’

DEPOSITION AT ALL, AND WHERE THE INFORMATION

PLAINTIFFS SEEK FROM COMMISSIONER PHILLIPS IS RELEVANT

AND NOT COVERED BY ANY PRIVILEGE.

Unlike Mr. Stone, Commissioner Phillips is part of a governmental body, with both

legislative and quasi-judicial functions and responsibilities, and thus would be entitled to both

legislative and quasi-judicial immunity from suit. However, Commissioner Phillips is not named

as an individual defendant in this lawsuit, so invoking the immunity to shield himself from

personal liability would be meaningless. See ACORN v. County of Nassau, 2007 U.S. Dist.

LEXIS 71058, *5 (E.D.N.Y. 2007)(“Since there are no individual defendants named in the

complaint, there are no claims for legislative immunity in the instant case.”).

While Commissioner Phillips would be entitled to the testimonial privilege that

accompanies legislative and quasi-judicial immunity, even the cases on which Defendant relies

underscore that the privilege applies very narrowly. See Northfield Dev. Co., supra, 136 N.C.

App. at 283, 523 S.E.2d at 750 (2000) (limiting the lower court’s protective order to deposition

questions regarding the mayor’s “actions, intentions, or motives with respect to any…quasi-

judicial or legislative matters before the [City] Council); Novak v. City of High Point, 2003 N.C.

App. LEXIS 1383, *15 (2003) (copy attached hereto)(affirming a protective order that prohibited

plaintiffs, during the depositions of the Mayor and City Council members, from inquiring into 1)

the actions, intentions, and motives of the Mayor and City Council members in enacting zoning

and rezoning ordinances on the grounds of legislative immunity; and 2) the actions, intentions,

and motives of the Mayor and City Council members in acting on plaintiffs' conditional use

permit application)(emphasis added).

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In sum, to afford Commissioner Phillips the general evidentiary privilege Defendant

appears to seek on his behalf would be contrary to long-established law. Our nation’s highest

court has made clear that the law disfavors testimonial privileges because they "contravene the

fundamental principle that 'the public . . . has the right to every man's evidence.'" Trammel v.

United States, 445 U.S. 40, 50, 100 S. Ct. 906, 63 L. Ed. 2d 186 (1980) (quoting United States v.

Bryan, 339 U.S. 323, 331, 70 S. Ct. 724, 94 L. Ed. 884 (1950)).

Finally, Plaintiffs do not seek to question Commissioner Phillips about his actions,

intentions and motives with respect to Defendant’s legislative rezoning, and respect his

testimonial privilege in that regard. Rather, Plaintiffs seek to depose Commissioner Phillips

about communications he had with Plaintiffs in open public meetings regarding their requests for

water services and their opposition to another landfill in their community. See Exhibits 6 and 8.

Discovery of those communications and the actions and events surrounding them is extremely

relevant in this case, violates no privilege, and is neither harassing nor unreasonable where it

goes to the heart of Plaintiffs’ claims and stems from conversations that were initiated by

Commissioner Phillips himself in public meetings.

C. DISCOVERY THROUGH THE DEPOSITIONS OF COMMISSIONER

PHILLIPS AND ASSISTANT COUNTY MANAGER STEVE STONE IS

PROPER UNDER RULE 26.

In support of its remaining rationale for prohibiting the deposition of Commissioner

Phillips and Mr. Stone, Defendant appears to rely on a federal unreported corporate fraud case,

Performance Sales and Marketing v. Lowe’s, 2012 U.S. Dist. LEXIS 131394 (2012) from the

United States District Court for the Western District of North Carolina, for the proposition that

the “apex doctrine” creates a rebuttable presumption that that the deposition of a high-ranking

corporate executive either violates Federal Rule 26(b)(2)(C)'s proportionality standard or, on a

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party's motion for a protective order, constitutes "good cause" for such an order as an

"annoyance" or "undue burden" within the meaning of Federal Rule 26(c)(1). Id. at *20.

As an initial matter, the “apex doctrine”, which has never been applied by any North

Carolina court, should not be applied in this case. Unlike private corporate executives, local

public officials (such as Commissioner Phillips) and high-ranking government staff members

(such as Mr. Stone) owe a duty of reasonable transparency to their constituents and taxpayers.4

But even if the doctrine were recognized by North Carolina’s courts, it would not apply to bar

the depositions sought in this case because Plaintiffs have demonstrated-- through documents

exchanged in discovery which Defendant has refused to elaborate on in their answers to

Plaintiffs’ interrogatories-- that both Commissioner Phillips and Assistant County Manager

Stone have personal and unique knowledge of the facts about which Plaintiffs seek to depose

them. As the federal district court in the case relied on by Defendant points out:

While the Fourth Circuit has never discussed the apex doctrine, Wright and Miller

address its underlying considerations: “A witness ordinarily cannot escape

examination by denying knowledge of any relevant facts, since the party seeking

to take the deposition is entitled to test the witness's lack of knowledge. Protective

orders are sometimes granted on such grounds where there appears a clear risk of

abuse because the proposed deponent is a busy government official, or a very

high corporate officer unlikely to have personal familiarity with the facts of the

case.”

Performance Sales and Marketing v. Lowe’s, 2012 U.S. Dist. LEXIS 131394, *17 (quoting from

8A Charles Alan Wright et al., Federal Practice and Procedure § 2037 (3d ed. 2012)(emphasis

added). There simply is no “risk of abuse” here, nor is there support in law or fact to deny

Plaintiffs the opportunity to seek relevant and non-privileged information through these

depositions. Defendant’s contention that Plaintiffs must seek this information not from these two

witnesses but from some other “lower level officials,” or through a Rule 30(b)(6) deposition (in

4 Indeed, Commissioner Phillips represents the county district in which Royal Oak is located.

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which Defendant controls who testifies on its behalf) finds no legal support either, where it is

proper to question these two witnesses regarding what they said and did regarding non-privileged

matters central to Plaintiffs’ Fair Housing Act claims.

Finally, especially in light of the Stipulation filed in this case, Defendant cannot resurrect

its assertion that the whole record test bars Plaintiffs from seeking to discover information

concerning the historical background and specific sequence of events leading up to the decision

to place the new landfill and other unwanted land uses in Plaintiffs’ community (including the

purchase of land for the landfill, about which Mr. Stone has particular, personal knowledge).

Yet Defendant’s Motion appears to do just that where its justification for denying Plaintiffs the

opportunity to depose Mr. Stone and Commissioner Phillips fundamentally relies on an

erroneous framing of this case as a simple zoning challenge—a framing which ignores the

position of Plaintiffs’ racial discrimination claims under the state Fair Housing Act at the core of

this case. This Court recently rejected that narrow framing in its order denying Defendant’s

Motion to Dismiss, and Plaintiffs urge that it reject it again here. Decision and Order Denying in

Part and Granting in Part Defendant’s Motion to Dismiss, ROCCA et al. Brunswick, 11 CVS

1301 (Brunswick County Super. Ct. September 13, 2012).

III. CONCLUSION

The goal of the discovery rules is to facilitate the disclosure, prior to trial, of any

unprivileged information that is relevant and material to the lawsuit so as to permit the narrowing

and sharpening of basic issues and facts to go to trial. Willoughby v. Wilkins, 65 N.C. App. 626,

310 S.E.2d 90 (1983), cert. denied, 310 N.C. 631, 315 S.E. 2d 697, 315 S.E.2d 698 (1984).

Because Defendant’s Motion seeks to obstruct that goal, and for all the reasons set out above,

Plaintiffs pray the Court deny Defendant’s Motion. A proposed Order is attached.

J

Brunswick County Board ofCommissioners

ACTION AGENDA ITEM2011

TO Marty K Lawing County Manager ACTION ITEM

# FROM J Leslie Bell AICP

HDFP Ext

#2033ISSUE

ACTION REQUESTED MapAmendmentZ-11-667

BACKGROUNDPURPOSEOF REQUEST

MEETING DATE

DATE SUBMITTED

VIII-107-Mar-11

25-Feb-11PUBLICHEARING

YESNORequest

that the attached Zoning

andMap Amendment beincluded on your 07-Mar-11 Agenda foraFirst ReadingandSettingofa Public

Hearing Request aPublic Hearing date of04-Apr-11 at 630pm The PlanningBoardheld a PublicHearing

on13-Dec-10

TABLED UNTIL 07-FEB-11 Item 1 Map Amendment Z-667 -BrunswickCountyOperation Services Stephanie LewisAMENDEDItem

1is amap amendmentinitiated by the property owner This changefrom

RR Rural Low Density ResidentialtoI-G Industrial General would allow for industrial use ofaportion

ofTax Parcels 1370000806and 15200058 located at339and 341 Middle River Road NESR 1448near Supply NC An amendment to the Official Brunswick County CAMA Land Use Plan Map has

been requested from LDR Low Density Residential toIndustrial foraportion ofTax Parcels 1370000806and 152000581ocated at339 and341 Middle River Road NE SR 1448 near SupplyNCThis rezoning totals capprQxlmate 11acres 13-Dec-10 Public Hearing TABLED UNTIL 07-FEB-11Mrs

Stephanie Lewis DirectorofOperation Servicesaddressed the

Boardonbehalf ofBrunswick County MrsLewisstatedthat

the County acquired the subjectproperty thatisadjacent to IG Industrial General zoned

property that is also owned by theCounty She further stated that the proposed zoning change

willfitinwith the future planningof the subject property while serving the County s

needs DrFlythe asked Mrs Lewis if the landfillis located on theadjacent siteMrs Lewis

repliedyesMr

Curtis McMillan resident in the area for forty-six 46 years addressed the Board in opposition tothe zoning

change Mr McMillan stated that his fore parents struggledtoensure that their neighborhood would be safefor the current and future generations Hefurther stated that this has always been apeaceful

neighborhood Mr Jordan asked Mr McMillan where he livesin the area Mr McMillan said he

resides at 412 Middle River

Road NEMr McMillan saidhe also has property connected to the subject property AGENDA PACKET MARCH 7

2011

Pls Exhibit 8 000001

Dr Flythe asked if the neighborhood included the majority ofthe property requested for a zoningchange Mr McMillan replied yes

Mr Dennis McMillan 390 Middle River Road NE addressed the Board in opposition to the zoningchange Mr McMillan said he is concerned with potential hazardsie water contamination andpotential environmental impact associated with a landfill He reiterated that there are people livingin this community that rely on well water Attorney Berg reminded the Board not to consider specificuses during their decision-makingprocess Mr

Lewis Dozier nearby farmer addressed the Board Mr Dozier said this general area had problems

with sand mines migratingto the area which is the largest concentrationofsand mines in theCounty He stated that the residents inthis area depend on well water but that may change in the futuredependenton whether or not there isfunding availabletosupply public water to the area Mr Doziersaid this area iscurrently vulnerabletothe lost of water supply as there isno other source of drinking

water availabletothe area and the communityis at the Countysmercy He further stated thathe has spoken to Mrs Lewis about the expansionof the Countyslandfill and the potential dangersof water contaminationtothis residential community Mrs

Lisa McMillan addressed the Board in opposition to the zoning change Mrs McMillan saidthe proposed

zoning change will open the door for other intrusive and disruptive uses to an existing residentialneighborhood Mrs McMillan was also concerned with the childrenssafety in the neighborhoodMrs

Allison W Melts spoke in oppositionto the zoning change Mrs Melts said she was raised in thisarea and she was concerned with the potential health issues that may occur asaresult ofthe expansion

of the landfill Mrs Melts saidshe has a grandmother thathad open heart surgery andthe proposed

use of the property could potentially create problems for her Mrs Melts was also concernedwith the potential effect to the water supply Mrs

Sheila H Washington addressedthe Board in opposition to the zoning change Mrs Washington

said their communityis seven generations strong She stated that they have had family outingsand walked around inthe community for many years enjoying the quietness Mrs Washington

felt that the proposed useof the property willbea danger to the community such as water

contamination and potential health issues She provided examplesof situations where health issuesoccurred when similar uses are placed in residential areas Ms

Alberta Duncan 401 Smith Road addressed the Board in oppositionto the zoning change Ms Duncanidentified surrounding residential parcelsto the subject property onamap displayed on an overhead

projector She stated that the property in the immediate area has always been used for residentialpurposes as people are continuingto move to the area Ms Duncan was concerned with thepotential impact IG Zoning will have to the area She was also concerned with property values beingaffected by the zoning change Ms Duncan asked that the Board not recommendtothe Board ofCommissionerstorezone thepropertytoIG Zoning Dr

Flythe asked staff ifanyone lives on the subject property Mr Bell replied no Dr Flythe askedifa portion of the parcelscouldbeconsidered for rezoning rather than the entire tractsMr Bell statedthat Tax Parcel 15200058 is currently landlocked Mr Bell said the Planning Board could modify

the rezoning request and recommendaportion of what was requestedbythe applicant Mrs

Nicole D Young addressed theBoard in oppositionto the rezoning request Mrs Young said shedid not want to make themattera racial issue but there are only black people living in this area and

they do not want their community degraded bya landfill She asked that the landfill beplaced in Revised

-2010-Dec-03 AGENDAPACKETMARCH

72011Pls Exhibit 8 000002

another area Mrs Young asked that the Board consider the existing residential neighborhood and thepeople currently living in the area

With no further comments the Chairman closed the Public Hearing Ms Dixon read the StaffReportattached She identified the subject property and surrounding properties on an overhead projectorMs Dixon said staff recommends approval to IG for a portion ofTax Parcels 1370000806 and15200058 in conjunction with an amendment to the Official Brunswick County CAMA Land UsePlan Map from MDR Medium Density Residential to Commercial for Tax Parcels 1370000806 and15200058 located at 339 and 341 Middle River Road NE SR 1448 near Supply NC

Mr Long asked staff if a neighborhood meeting would be in order Mr Bell said a neighborhoodmeeting is not required but the Planning Board can table the matter for additional information

Mr Jordan said to Mrs Lewis that there are a lot ofcitizens in attendance to the meeting that help payfor her salary and other staff members He asked Mrs Lewis if the County had a meeting with thecommunity Mrs Lewis said the County had Public Hearings regarding the landfill expansion MrBell interjected that any meetings regarding the landfill expansion is separate from the zoning requestsubmitted by the applicant Mr Candler said State Statutes dictate when a neighborhood meeting isrequired Mrs Lewis said the subject property has been considered for several different uses but shehas not divulged any specific use as nothing has been decided at this time Mrs Lewis further statedthat there will be a Workshop on Monday 20-Dec-10at300pminthe Commissioners Chambers regarding theexpansion ofthe landfill Mr Candler

askedifMrs Lewis has had an opportunity to see staff s recommendationMrsLewis said staffgave heracopy of the recommended areastobe rezoned afterit was presented to the Board The Chairmansuggested that themap be modified showing the recommended areas tobe rezoned and thematterbe tabled until theCounty meets with the community regarding thematter He further stated thatthe County has been aggressive with requiring adequate buffers between residential and commercial andor industrialusestoensure there isno adverse affect toa residential community MrLong

asked staffifasite plan of the intended use will come back before thePlanning Board andMr Bellreplied yesMr Candler

asked staffifbuffers willberequired if the zoning change occurs MrBell said buffer requirements willbe imposed at the time asite plan is submitted for approval The Chairman asked staff whena080 opacitybuffer is required for IG Zoning versusa10 opacitybuffer Ms Dixon saida0 80 opacitybuffer is required if adjacent Rural Residential property isnot developed anda10 opacitybuffer

is required if adjacent Rural Residential propertyisdeveloped The Chairman added that thereare larger width requirements forbuffers as wellHe suggested that thestaff s recommendedrezoningareabe made available for the audience atthe Monday 20-Dec-10 Workshop heldbythe Boardof Commissioners regarding the expansionofthelandfill Mr Candler clarified that

the Planning Board options are to accept the applicant s request or denytheapplicant s requestand theycan reapply or table the matter and the applicant bring backamodified zoning change and

theChairman concurred Mr Bell saidstaff is recommending amodified version of the

zoning change Hefurther stated that the BoardofCommissioners will make thefinal decision regardlessofthe outcomeof the Workshop on Monday 20-Dec-10 regarding the expansionofthelandfillMr Candler

asked Mrs Lewisif she has reviewed the modified zoning change staff is recommending Mrs Lewisreplied yesShe said the Statewill place additional buffer requirements onthe siteMrCandler asked Mrs Lewis if the intended use of the site willbe affected ifthis matter is tabledMrs Lewis said the County is currently working with the State on thismatter that requires athirteen

13 month review process which includes a mandatory siting study Revised -2010-Dec-03 AGENDA PACKET MARCH7

2011


that has been completed Mr Long said tabling the matter will only delay the process forapproximately oneImonth Mr Bell reiterated that the Planning Board can make a

recommendation based on the outcome ofthe Monday 20-Dec-10Workshopregarding theexpansion ofthelandfill The Chairman expressed concern with making arecommendation without theCounty and communityresidents havinganopportunity to discuss the matter further MrsLewis

stated that she is uncertain as towhether the sitewill be feasible for one 1of the intended useswith the proposed zoning modification The Chairman felt that the matter should be tabled forupto thirty 30 days so the County can review staffsrecommendationandseehow itwill affect theirintended useof the property as well as meet with the citizens to address their concerns onthematter

Mrs Henry

askedif the residents in the area concerns couldbeaddressed as they relate to IG Zoning Mr Bellasked Mrs Henry toclarify her question Mrs Henry asked how the required buffers factor intothematter Mr Bell said buffers are intended to provide a shield from adjacent uses buthe was not aware

of any studies that have been done onthe subject property regarding any impacts to groundwater or

other potential nuisances thatwill affect residentially-zoned propertyandoruses MrLong asked

Mrs Lewis ifawetlands study has been completed on the sitesMrs Lewissaid such is requiredas part of the mandatory siting study bythe State but she did not have that information available forthe Board However she stated that she could get the information if the Board needs actualwetland acreage Mr Candler asked

staff the amount ofacreage involved with the proposed modification Mr Bellsaid he didnot have an exact number but staff can provide itto the Board at a later date Mr Long said it appearstobe approximately forty 40 acres less than the original acreage submitted for rezoningby the

applicant Mr Bell interjected thataconditional use permit will likely be required for any proposed useonthe subject property Mrs Lewis reminded the Board thatFederal and State permits will be

required for any industrial use which usually includes an environmental study Mr Jordan asked whatuses in theIG Zoning will require an analysis ofawell one thousand feet 1000 awayMr Longsaid mining permits normally require such MrJordan felt that matter should be tabled or hewill vote nay Mr Candler said

staffs recommendation seemsinorderbutthe citizens that spoke from the community are not

agreeable to the modification and they arenot willing to compromise The Chairman felt thatachange in venue may makeadifference in opinions Mr Bell interjected that the Board can callaSpecial Meeting if needed and the Chairman agreed The Chairman further stated that thismeetingcan be recessed until the Special Meeting Mr Bell said he and Mrs Lewis can report back to

the Board the results ofthe Board ofCommissioners Workshop onMonday 20-Dec-10 regarding theexpansionofthe

landfill The Chairman said it appears

that the Board is in favor oftabling the matter but hewanted to know when would be an appropriatetime to schedule the Special Meeting before makinga recommendation to the Board of CommissionersMr Bell stated thatthe Public Hearing has been held and the Board is not required toholdanother Public Hearing before makingarecommendation to theBoard of Commissioners Mr Candler asked staffhowmuch notice is required toholdaSpecial Meeting Mr Bell replied forty-eight48hours After some discussionregarding when the

Special Meeting shouldbe held Mr Jordan madeamotion to table this matter up tothirty 30days and the Director seta date for aSpecial Meeting subject tothe availability ofaquorum Themotion was seconded by Mr Long and carried5to 1with Mr Candler opposing Revised -2010-Dec-03 AGENDA PACKETMARCH7

2011


The Chairman informed the audience ofthe Boardsdecision to table the matter until the outcome ofthe Board ofCommissioners Workshop regarding the expansion ofthe landfill on Monday 20-Dec-10

at 3 00pmin the Commissioners Chambers There were some membersofthe audience that expressed

concern withthe Commissioners Workshop being held at3 00pmand they would have totake off work to attend The Chairman suggested that anyone unable toattend that meeting could sendawritten response oftheir concerns He further stated that the audience willhave an opportunityto

voice their concerns regarding this zoning change before the Board ofCommissioners decide whetheror not to rezone thesubject property Dr

Flythe asked if citizens will be allowed tospeak during the Workshop on Monday 20-Dec-10 MrsLewissaidthe public notice saiditwill beat the discretion of the Board of Commissioners tohear further public

comments The Chairman asked staff toresearch thematter and follow-up with the citizensinattendance

tothismeeting Mr Bell said he will relay his findings toMrs Lewis Ms Duncan re-addressed the

Board Sheaskedthata buffer be defined and Mr Bell proceeded toexplain the intentofa

buffer Ms Duncan asked the uses that are allowed in an IG Zoning District and Mr Bell read thepermitted and permissible uses in theIG Zone 07-FEB-11 ADDITIONAL COMMENTS Mr Bell

addressedtheBoardHestated

that aPublic Hearing was held and closed on 13-Dec-10 by thePlanning Board and staff madearecommendation toamend theapplicant srequest toexclude portionsof Tax Parcels 1360000806and 15200058 This amended

request provides agreater distance from the landfill subject properties and the existingresidentially-zoned properties and or residential uses Mr Bell statedawetlands delineation attachedhasbeen included in the Board s packetMr Long stated that approximately fifty-two 52 acreshave

been

excluded from the original rezoning requestThe Chairman clarified that staff is providing the Boardwith wetlands delineation information and Mr Bell concurred MrCandler asked the amountof

wetlands within the rezoning request Mr Longsaid most of the wetlands are outside ofthe amended area tobe excluded Mr Jordan asked for aclarification of staff s recommendation The

Chairman said staff is recommending the hatched areadisplayedonthe mapon theoverhead

projector be rezoned toIGMr Jordan asked Mr Bellifhe attended the Public Hearing

held bythe Board ofCommissioners whereaprofessional engineer presented areport regarding the intendeduse

ofthe propertyMrBell replied yes Mr Jordan expressed concern with the professional engineer hired

by the County todoananalysis indicating thatno wells should be within five hundredfeet 500of the intended useofthe property He was concerned with protecting properties that border low

density residential zoning and notexclude portionsof those properties toprotect the propertyowners that have owned their propertyfor many generations Mr Jordan pointed outanarea of

concern to the southwest ofthe proposed area for rezoning near Tax Parcel 15200021 ona map

on the overhead projector He further stated that he spoke with aCommissioner member that said

athree hundred foot 300 ban would haveminimal impact on the County useof the property

Mr Candler interjected that the Board cannot consider specific uses of the property The Chairman agreed that

all allowable uses must be considered when the Board deliberates on this matterMrJordan said

heis looking atall permitted uses in the IG Zoning District He stated that there aremany uses in the IG category that could have detrimental effects onwells in close proximity tothe applicant sintended use of theproperty Mr Jordan reiterated thataprofessional engineer warned the County that there

shouldbeproper consideration andprotectionfor wells from Industrial General usesRevised -2010-Dec-03AGENDA PACKET MARCH 72011


Mrs Henry stated that she attended the meeting Mr Jordan is referring to and she asked staff if there

was afollow-upto that meeting Mr Bell stated thata subsequent community meeting washeld regarding

the existing landfill and potential expansionof the facility The Chairman saidhe attended thecommunity meeting thatwas held at the Supply Treatment PlantMrs Henry asked theoutcome of

that particular meetingMr Bell said the Board should focus on the rezoning request rather thana specific

intended use of the subject property The Chairman said there were no general uses discussed

atthe community meeting rather the applicantsintended use was the focal point Dr

Flythe said he attended the 20-Dec-10 BoardofCommissioners Workshop and there was common concern regarding

water qualityHe stated that the intent ofthe IG Zoning District istohave infrastructure e

gwater sewerand natural gas in place Dr Flythe further stated thathewould request that

public water be available before he can vote for the zoning change The Chairman said the Boardcannot conditionally zone propertyMrCandler interjected that the special exception process would affordtheBoard the opportunity toplace conditions on the property if the zoning change occurs andsuchause is proposed and Mr Bell concurred The Chairman asked

staff ifall IGuses require special exception approval MrBell replied no The Chairman asked Mr

Bell to identify the outright permitted uses intheIG Zoning District and MrBell proceeded to

read the outright permitted uses intheIG Zoning District Mr Jordan said

he hada question for Mrs Lewis Director of Operation Services Mr Bell cautioned Mr Jordanto

be careful with his question because the Public Hearing was heldon 13-Dec-10 and closed MrJordanproceeded toask Mrs Lewisif a three hundred foot 300 wide ban was excluded from the zoning request

woulditposeadetrimental impact on the County Attorney Marshall said Mrs Lewis cannotrespond to the question because the Public Hearing has been closed and there was no advertisement

foraPublic Hearing tonight Mr Candler asked what is

located inthe area that was excluded from staffs recommendation but partofthe applicant s

rezoning request Ms Dixonsaid thatis a wooded area which is depictedin the photographs previously provided to

the BoardTheChairman asked staff to

summarize staffls comments Ms Dixon summarized the Staff Report attached She said staff recommendsapproving an amended portionofTax Parcels 1370000806 and 15200058 toIndustrial General

IG in conjunction withanamendment totheOfficial Brunswick County CAMA Land Use Plan

Map from LDR Low Density Residential to Industrial foraportion of Tax Parcels 1370000806 and15200058 located at339and 341 Middle River Road NE SR 1448 near Supply NC The amendedrecommendation excludes approximately 650 feetatits shortest distance and 1010 feetat

its greatest distance along the eastern sideofTax Parcel 13700006 An additional portion ofTax Parcel

1370000806 along Middle River Road NEand its shared western boundary with Tax Parcel 13700008

approximately 880 feet and western boundary along Tax Parcels 1370001702 and1370000812 have

been excluded Mr Bell clarified that the

majority ofthe wetlands are inthe areas still included in the zoning change request The Board discussed theworksheet

and concluded the followingIWill the uses permitted

by the proposed changebe appropriate for thearea concerned DrFlhe said

yes

because there is IG Zoning tothe northeast and C-LD Zonin tpothe southeastofthe subjectroperty The

Brunswick County Landfillislocated onanadiacent Tax Parcel 15200045 Revised -2010-Dec-03

AGENDA PACKET MARCH7

2011


Mr Jordan said no because Policy 112 ofthe Brunswick County CAMA Land Use Plan

states that Brunswick County will encourage industrial and commercial development in

areas with existing infrastructure that does not infringe on existing medium densityresidential

The Chairman called for a vote and the Board voted yes 4 to 2 with Mr Jordan and Mrs

Henry opposing

II Does adequate public school facilities and other public servicesservicesie waterwastewater roads exist are planned or can be reasonably provided to serve the needs of

any permitted uses likely to be constructed as a result of such change

Yes This rezoning request is located in the Supply Elementary School District which

has adequate capacity Cedar Grove Middle School District has adequate capacity andSouth Brunswick HishSchool District is out-of-capacityThereisanew high school planned for

FY2014 This rezoning

is located in the Supply Fire District Water and

sewer are notavailable at this time Access to water and sewer would requireamajorutility extension Water and sewer would havetobe extended from theWest Brunswick Treatment

Plantorthe new Brunswick Communi-Hospital site This

rezoning hasaccess onto Middle River Road NE SR 1448 Landfill Road NEGreen

Swamp Road NC 2111 and Ocean HighwayEUS 17 which have no capacity deficienciesatthis time There are three3North Carolina Departmentof Transportation

NCDOT Transportation Improvement Pro rgamTIP Projects and two 2Studies inthis area TIP

Project R-2633 isthe Wilmin on Bypass from New Hanover County toBrunswick County

This project is in the plannins and design stages TIP Project

R-3436 is thenew I-74 Corridor South CarolinaState LineatUS17in Brunswick County to

US 74-76east of Whiteville inColumbus Coun This project hasalow prioritization

score and it is scheduled for reprioritization in 2012 US17 Corridor Studyis

future improvements toUS 17 thatwillprotect integrity maintain mobility while residential andcommercial development increase This project is complete Interstate 74

Feasibility Study realigns

Interstate 74 witha four lane divided interstate freewa project isintheplanninganddesign stage IIIIsthe proposed change

consistent with the CAMA Land Use Plan or any other adopted land use document Nohoweveran amendment can

be made to the CAMA Land Use Plan and there is IG Zonin 2onan adiacent

tractRevised -2010-Dec-03 AGENDA PACKET MARCH

72011


IV Is the proposed amendment reasonable as it relates to the public interest

Yes Staff is recommending excluding anproximatelffty-two52 acres from the rezoning

requestto providea buffer from the residential community nearby Industrial uses

are vital to the economy and are needed in Brunswick County and the expansionofindustrial

property has been lost Mr

Jordan expressed concern withthe residentially-zoned properlyborderingthe subiect property and

the potential for contamination ofwellwater should the adiacent property owners desire

to lacearesidential structure ontheir property The Chairman

called fora vote and the Board voted yes5 to 1 with Mr Jordan opposing FISCAL IMPACT

BUDGET AMENDMENTREQUIREDYESNO CAPITAL PROJECT

GRANT ORDINANCEREQUIRED YESNO PRE-AUDIT CERTIFICATION

REQUIREDYESNOREVIEWED BY DIRECTOR

OFFISCAL OPERATIONS YES NOCONTRACTS AGREEMENTS REVIEWED

BYCOUNTYATTORNEY YES NON A ADVISORY BOARDRECOMMENDATION

Planning Staff recommends

approval to I-G Industrial General fora portion of Tax Parcels 1370000806 and 15200058 Planning

Board recommends approval

to I-G Industrial General for aportion of Tax Parcels 1370000806 and 15200058 5to

1with Mr Jordan being opposed Planning Staff recommends approval to

the Official Brunswick County CAMA Land Use Plan Map from LDR Low Density ResidentialtoIndustrial foraportion of Tax Parcels 1370000806 and 15200058 located at339 and

341 Middle River Road NE SR 1448 near Supply NC Planning Board recommends approval to

theOfficial Brunswick County CAMA Land Use Plan Map from LDR Low Density Residentialto Industrial foraportion of Tax Parcels 1370000806 and 152000581ocated at339 and 341

Middle River Road NE SR 1448near Supply NC 5 to1with Mr Jordan opposing COUNTY MANAGER S

RECOMMENDATION Schedule

PublicHearingonMap

Amendment Z-11-667 for Apri14 2011at630pm ATTACHMENTS 1Wetlands DelineationMap Revised-2010-Dec-03

AGENDA

PACKET MARCH72011


2 Staff Report and Corresponding Maps

3

4

5

6

7

8

9

10

ACTION OF THE BOARD OF COMMISSIONERS

APPROVED ATTEST CLERK TO THE BOARD

DENIED

DEFERRED

UNTILSIGNATURE

OTHER

Revised -2010-Dec-03AGENDAPACKET

MARCH72011Pls Exhibit 8 000009

ORDINANCE NUMBER Z-11-667ANORDINANCE

AMENDING THE BRUNSWICK COUNTY UNIFIED DEVELOPMENT

ORDINANCETheBrunswick

County Boardof Commissioners inregular session duly assembled does hereby ordain The Brunswick

County Unified Development Ordinanceishereby amended as follows 1Change

in Zoning District from RR Rural Low Density Residential to I-G Industrial Generalforaportion of Tax Parcels 13700000806 and 15200058 locatedat339and 341 Middle River Road NE SR

1448 near Supply NCAn amendment to the Official Brunswick County CAMA LandUse Plan Map

has been requested from LDR Low Density Residential to Industrialfora portion of Tax Parcels 1370000806 and

15200058 located at 152 Buckeye Road NE SR 1415 near Supply NC AMENDED This rezoning

totals

5approximately 176 acres BRUNSWICKCOUNTY BOARD

OFCOMMISSIONERS William MSue

Chairman ATTEST Debby Gore

Clerk

to the Board First Reading Public

Reading Second

ReadingD

Comm Brd

Z-11-667-2ndSheetAGENDAPACKET MARCH 7


REZONING STAFF REPORTDate December 13 2010

Case# Z-667TaxParcels1370000806 and 15200058 ZONING

ANALYSIS Proposed

Zoning Request FromRR Rural Residential ToIG Industrial General The

I-G Districtis intended to provide locations for enterprises engaged ina broad range ofmanufacturing processing creating repairingrenovating painting cleaning or assembly of goods merchandise or equipment Landsin this District are to

be located on or near MaJor Thoroughfares as identified in the Major Thoroughfare Plan or Cooperative Transportation Plantorail service and toin-place infrastructure suchaswater sewer and or natural gasSURROUNDING AREA ZONING

DESIGNATIONS North RREast

IG CLD South RR CLDWest RR Adjacent Tax Parcels

15200042 1520004201 and 1520004411 were rezoned from RRGto CLD as part of Rezoning Case Z-588onSeptember42007 REQUIRED PROJECT BOUNDARY BUFFERS

NO CHANGE AGENDA PACKET MARCH7


PROJECT BOUNDARY BUFFER ALTERNATIVES TABLE

LAND USE ANALYSIS

Current Surrounding Area Land UsesCommercial AgriculturalConservationForestryNacant Lands

Residential Industrial Institutional Public Facility

CAMA Land Use Plan Land Use Classification LDR Low Density Residential3

Consistent with the Land Use Plan Map Not Consistent with Land Use Plan Map

Brunswick County CAMA Land Use Plan policies affecting Phis rezoning

o P21 states that Brunswick County will encouragesupport the development of

clean industries in locations where services can be provided environmental

impacts can be mitigated surrounding land uses are compatible and

transportation systems can support the development

o P49 states that Brunswick County and its participating municipalities supportdirecting more intensive land uses to areas that have existing or plannedinfrastructure

AGENDA PACKET MARCH 7 2011

Buffer Depths and Plants Required Per 100 Lineal Feet


o P112 states that Brunswick County will encourage industrial and commercial

development in areas with existing infrastructure that does not infringe on

existing medium density residential

Industrial uses are vital to the economy and are needed in Brunswick CountyIndustrial property for expansion has been lost This rezoning is located on a majorregional transportation system and near other property that has recently been

rezoned for industrial uses Brunswick County is considered a Tier III County by the

North Carolina Department of Commerce Columbus County is ranked as a Tier I

County by the North Carolina Department of Commerce

Capital Improvement Plan CIP

CIP Projects No CIP Projects

CIP Pro ect s Scheduled

Lockwood Foll Park Renovation FY 2013 FY 2014

New Hi h School FY 2014

Su I Area Tank FY 2011

Future Surrounding Areas Land UsesThe area surrounding this rezoning request has been experiencing some changes based upon

recent land development activities submitted to the Brunswick County Planning DepartmentRichmond Hills PUD has been approved in the area totaling totaling 242 units The new Brunswick

Community Hospital is located near the rezoning

The existing Brunswick County Landfill is located on adjacent Tax Parcel 15200045 Tax Parcel

15200058 is landlocked

NFRASTRUCTURE ANDSERVICE MPACTS

SCHOOL CAPACITY

Elementary SchoolSUDpIy

Adequate CapacityTwo-YearCapacity Warning Out-of-Capacity

MiddleSchoolCedar

GroveIAdequate Capacity

Two-Year Capacity WarningOut-of-CapacityHighSchool South

BrunswickAdequateCapacity

Two-Year CapacityWarning Out-of-Capacity

AGENDA PACKET

MARCH72011


MAJOR ROADWAY IMPACTS

ROAD ACCESS AND CAPACITY Wilmington MPO

Road Capacity Deficiencies

Middle River Rd SR 1448 None

Landfill Rd None

Green Swam Road NC 211 None

Ocean Hi hwa US 1 None

unnnrnenrree-unCTIIA FSI-1 NONEVYVIrRVv rn--Project

ProjectProject

Desalption Status TYPeWiMhgton

Bypass from New Hanover planning andfealgnStages R-2833TlpCounty to

Brunswick County New I-74

Corridor SouthCarolna State LheAtUS

17 In Brunswck CountyTo US Low Prioritization Score R-3438TIP74

78East OfVVhkeviie In Columbus Project Scheduled for Reprloritizatfon in2012 County Future improvementsto US

17

thatwillProtectintegrky malntalnmobiity while Complete

US17CortidorStudyStudy

residentieland oommerclaldevelopment increase Interstate 74FeasibiityStudy

Realigning hterstate 74with

a fouraane planning and Design StagesStudy divided interstate freeway

UTILITIES CURRENT WATER AND

SEWER

AVAILABILITY WATER Not Available Available

SIZE OFWATER LINE

NIA LOCATION NIA PROVIDER Brunswick

County UtilitiesBrunswickRegional Water Sewer

District South Brunswick Sanitary District

PROVIDER Not Available Available

E

SIZE OF SEWER

LINENIA LOCATION NIA Brunswick County

Utilities Brunswick

Regional Water Sewer

District South Brunswick Sanitary District

Accesstowater and

sewer would require amajor utility extension Water would have tobe

extended from the new Brunswick Community Hosp tasiteand sewerwould have

tobeextended from the West Brunswick Treatment Plant or the new

Brunswick Community Hospital siteSEWER AGENDA PACKET MARCH

7


FIRE DISTRICT

This rezoning request is located in the Supply Fire District

OTHER SITE CONSIDERATIONS

Located near commercial and industrial zoned property

Located near other property designated as Commercial Industrial and LDR Low Density Residential

in the Brunswick CountyC4MALarolUssPln

Potentially could create a spot zoning

Located within a growth corridor

Located within 12mile of a Voluntary Agricultural District

Will create a split zoning on a parcels

Located within a FEMA Flood Hazard Zone

Located near awatercoursewaterbody Royal Oak Swamp Beaverdam Swamp

STAFF RECOMNlENATt01

APPROVAL TO RR R-7500R 6000SSR-6000 MR-3200CP NCCLD

CI IG RU-1 MI Fora porfianof Tax

Parc1 1370D00806 and 15200058see attached map and

n conjunction with a CAMa Land Use Plan MapAmendment from LDR Low Density Residen#iat to Indus ialDENIa OF REZONINGAGENDA

PACKETMARCH 7 2011


See-COm Ine

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DELINEATIONe WlrepYO

plntiPROJ NO PROJECT

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SITE STUDY AGENDA PACKET

MARCH72011


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October 26, 2012

Jackie Hughes

Womble Carlyle Sandridge & Rice, PLLC VIA EMAIL

150 Fayetteville Street

Suite 2100

Raleigh, NC 27601

Re: ROCCA et al. v. Brunswick County, 11-CVS-1301

Dear Jackie:

Your team noticed a hearing on Defendant’s Motion to Consolidate and Motion to

Reconsider, without any prior notice or consultation with us, for November 12, 2012. After

that notice issued, we sought to communicate with you by email and telephone to try to come

to some agreement regarding consolidation. As stated in the attached email, sent to you on

October 17, we were unable to reach agreement. It simply is not in Plaintiffs’ best interest to

join Defendant in its effort to stifle Plaintiff Hardy’s discovery rights. We agree that, given

the very different views we each have of our October 16 telephone conversation, it may

unfortunately be necessary to communicate exclusively in writing from now on.

When Julie and I spoke by phone on Monday, October 22, I understood that because

Judge Lock was not in Brunswick on November 12, we would not be having a hearing in

Brunswick that week. Julie did not tell me that you all intended to have a separate hearing on

November 13 on Defendant’s Motion to Consolidate. Because we were trying to schedule

the depositions of Defendant’s witnesses, we sought clarification about the hearing date from

your team in writing and by telephone, on October 22 and 23.

In your October 24, 2012 letter, you appear to take the position that Defendant is

refusing to produce Commissioner Phillips for a deposition, and it appears based on your

letter today that Defendant is also refusing to produce Mr. Stone unless we forecast for you

the questions we intend to ask these two fact witnesses. As stated in our response yesterday

to your October 24 letter, we are aware of no obligation to explain why Plaintiffs seek to

depose these two individuals. They each have knowledge and information relevant to

Plaintiffs’ Fair Housing Act claims. Please clarify immediately if you are indeed taking the

position that Plaintiffs may not depose them as fact witnesses, as we will want the court to

address that on November 13 so as not to further delay discovery in this case.

With respect to Plaintiffs’ depositions, while we note the inconsistency of your

noticing their depositions for dates we previously tried to reserve to take the depositions of

Defendant’s witnesses—dates you told us previously could not be reserved because of your

unavailability-- we are happy to have you depose the Plaintiffs who are available on

November 15, following the deposition of Commissioner Phillips on November 14. If there

is time following the deposition of Mr. Stone on November 16, you may depose available


Plaintiffs as well. I have checked on the Plaintiffs’ availability, and some of them are

available for some of the dates mentioned in your October 24 letter (which did not include

November 14-16), but not others. I have not been able to confer yet with James or Mark

Hardy, but hope to by this weekend and should be able to advise you on Monday morning of

their availability.

Please immediately let us know your position with respect to the depositions of Mr.

Stone and Commissioner Phillips, so that we may properly seek intervention from the court if

necessary. We believe that counsel should be able to schedule depositions without the court’s

intervention, and hope that we will be able to resolve this by early next week.

Sincerely,

/s/Elizabeth Haddix

Elizabeth Haddix

Cc: Lewis Dozier

Rev. Curtis McMillian

Dennis McMillian

Ray Owens

Jack Holtzman


1

Haddix, Elizabeth McLaughlin

From: Haddix, Elizabeth McLaughlinSent: Wednesday, October 17, 2012 11:59 AMTo: 'Hughes, Jackie Terry' ([email protected]); 'Bradburn, Julie'Cc: Jack Holtzman ([email protected]); Ray Owens; Eynon, Bethan ([email protected])Subject: ROCCA/Hardy consolidation motion

Jackie, Respectfully, we did not consent to join Defendant’s motion yesterday. On our call, as in the correspondence we had with you and Julie before you filed Defendant’s motion, we told you that Plaintiffs would join in the motion to consolidate if Defendant would agree that Mark Hardy’s rights to full discovery would not be compromised. You and Julie have told us repeatedly that upon consolidation Defendant will maintain the position that Mr. Hardy cannot serve further interrogatories because (Defendant believes) the plaintiffs in the ROCCA case have already exceeded the limit under Rule 33. Yet your motion, which you would have us join, makes no mention of those prior discussions. Plaintiffs have exhibited nothing but good faith in conserving judicial economy, first seeking to add Mr. Hardy as a plaintiff under Rule 15(a), which Defendant opposed, leaving Mr. Hardy no option but to file his own separate complaint. Defendant opposed Plaintiffs’ motion for consolidation at that time. We respectfully disagree with your statement that we are opposing Defendant’s motion in bad faith. You both told us yesterday that plaintiffs should join Defendant’s motion and allow the issue of Mr. Hardy’s right to full discovery to be litigated down the road. When you made this suggestion yesterday, we told you we would discuss that with our team and get back to you with an answer, which we have done. In sum, our understanding at the close of our conversation yesterday was that Defendant would not agree to any sort of stipulation to avoid prejudicing Mr. Hardy. We wanted that agreement because we simply wish to avoid unnecessary litigation, expense of judicial resources and delay, and it seemed to us like this would be an issue we could resolve between counsel, especially because (as we ‘ve always maintained) consolidation would conserve the parties’ (and the court’s) resources. But in light of Defendant’s position and intent, we do not see an alternative to filing an appropriate response to protect Plaintiffs’ rights and interests. We believe that it is in our clients’ interests (and in the interest of judicial economy) to have this resolved at the hearing you’ve already requested on Defendant’s motion. We remain open to joining the motion if Defendant will agree that the plaintiffs’ discovery rights will not be restricted or otherwise prejudiced. If you’d like to talk further, please call me at 445‐0176. I should be at my desk for most of the rest of the day. Thanks, Elizabeth Elizabeth Haddix Senior Staff Attorney UNC School of Law Center for Civil Rights 919‐445‐0176 (o) [email protected] Law School Annex CB# 3382 Chapel Hill, NC 27599


2

IMPORTANT: This email transmission is intended only for the use of the individual or entity to which it is addressed, and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this communication is not the intended recipient, or the employee or agency responsible for delivering the communication to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify me immediately by telephone at 919 843 9807. Thank you.


1

Haddix, Elizabeth McLaughlin

From: Haddix, Elizabeth McLaughlinSent: Thursday, October 25, 2012 11:48 AMTo: 'Hughes, Jackie Terry'; Bradburn, JulieCc: '[email protected]'; Jack Holtzman ([email protected]); Eynon, Bethan RSubject: RE: Royal Oak v. Brunswick County Attachments: Stone and Phillips Depo Notices.pdf

Jackie, Defendant may have until November 21 to respond to Plaintiffs’ Third RFPDs and Second RFAs, although we may need to hold open the depositions. We understand that you are not available the week of Nov. 12, but Julie noticed a hearing for that date, so we assume she is available then for Commissioner Phillips’ deposition on Nov. 12, 13 or 14. As you can see from the attached, we are also noticing Steve Stone’s deposition for that week, to take place following Commissioner Phillips’ deposition. If these deponents are not available during the week of Nov. 12, we can take their depositions on Nov. 28 and 29. We are checking on the plaintiffs’ availability for the week of December 3, however, if Mr. Phillips and Mr. Stone’s depositions cannot take place until Nov. 28 and 29, then we will notice Defendant’s 30b6 depo for the week of December 10, and would prefer, as you and Julie have suggested in the past, to consolidate depo dates so we are not traveling back and forth week to week. Thanks, Elizabeth Elizabeth Haddix Senior Staff Attorney UNC School of Law Center for Civil Rights 919‐445‐0176 (o) [email protected] Law School Annex CB# 3382 Chapel Hill, NC 27599 IMPORTANT: This email transmission is intended only for the use of the individual or entity to which it is addressed, and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this communication is not the intended recipient, or the employee or agency responsible for delivering the communication to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify me immediately by telephone at 919 843 9807. Thank you.


STATE OF NORTH CAROLINA

COUNTY OF BRUNSWICK

THE ROYAL OAK CONCERNED CITIZENS ASSOCIATION, CURTIS MCMILLIAN and DENNIS MCMILLIAN,

Plaintiffs,

v.

BRUNSWICK COUNTY,

Defendant.

IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION

11-CvS-1301

) ) ) ) ) ) ) ) ) ) )

DEFENDANT BRUNWICK COUNTY'S OBJECTIONS TO PLAINTIFFS' FIRST REQUEST FOR INTERROGATORIES, FIRST REQUESTS FOR PRODUCTION

OF DOCUMENTS, AND FIRST REQUESTS FOR ADMISSIONS

Pursuant to Rules 26, 33, 34 and 36 of the North Carolina Rules of Civil Procedure,

Defendant responds to Plaintiffs' Interrogatories, Requests for Production of Documents, and

Requests for Admission as follows:

INTERROGATORIES

Interrogatory No. I:

Identify any and all individuals possessing any information or knowledge concerning the

facts and allegations set forth in paragraphs 16-147 of the Complaint, or information or

knowledge of any facts which support your defenses to the above allegations in the Complaint,

and briefly describe the information and/or knowledge possessed by each individual. To the

extent that there are documents or other records which pertain or relate to your Answer, please

identify those documents or records.

Answer: Objection. Defendant has moved to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis. In addition, standing alone this Interrogatory exceeded the permissible number of interrogatories that may be served under the North Carolina Rilles of Civil Procedure. This Interrogatory also assumes the truth of the allegations in paragraphs 16-147 of the Complaint, many of which have been denied by

Pls. Exhibit 1 000001

Defendant or do not include factual allegations, and fails to state with reasonable particularity the information being sought from Defendant. Accordingly, the Interrogatory in its current form is overbroad, unduly burdensome and vague.

Interrogatory No.2:

Describe all uses considered by Brunswick for parcels 806 and 058 other than for an

expanded landftll. To the extent that there are documents or other records which pertain or relate

to your Answer, please identify those documents or records.

Answer: Objection. Defendant has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis. In addition, Plaintiffs have exceeded the permissible number of interrogatories that may be served under the North Carolina Rules of Civil Procedure.

Interrogatory No.3:

Identify all private alternatives for municipal waste or construction and demolition that

exist as of the date of your responses. To the extent there are documents or other records which

pertain or relate to your Answer, please identify those documents or records.


Interrogatory No.4:

If you contend that the County did not have responsibility or authority to provide any of

the Plaintiffs, members of the ROCCA, or residents of the Royal Oak Community with public

water or sewer services, state each and every reason in support of your contention, identify the

entity or entities that were responsible for or authorized to provide any of the Plaintiffs or

members of ROCCA with public water services, and identify any individuals possessing

2


knowledge or information relating to this contention. To the extent that there are documents or

other records which pertain or relate to your Answer, please identify those documents or records.


Interrogatory No.5:

Identify each and every person employed by Brunswick who worked in any capacity for

Brunswick whose responsibilities related to the provision of public water and sewer services for

persons who reside or resided within the Brunswick County limits from 1970 to the present and

describe the employee's roles and responsibilities related to the provision of public water and

sewer services within the County. As to each person, provide the employee's job tide(s), the

employee's current or last known employer, and the employee's dates of employment with you.

Answer: Objection. Defendant has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis. In addition, Plaintiffs have exceeded the permissible number of interrogatories that may be served under the North Carolina Rules of Civil Procedure. This Interrogatory is also unduly burdensome in its request for 41 years of county employee data, and vague in its use of the general phrase "related to the provision of public and sewer services within the County." Defendant objects further to the extent Plaintiffs seek confidential personnel information that is protected by N.C. Gen. Stat. § 153A-98 andlor its predecessors.

Interrogatory No.6:

Describe in detail Brunswick's provision of public water and sewer services to persons

who reside or resided within Brunswick County from 1970 to the present, including but not

limited to: (a) a specific description of when and where Brunswick installed, maintained,

serviced, and/or permitted the installation of water or sewer lines and which geographical areas

and addresses those water or sewer lines serve andlor served; (b) the number of properties

3


connected to service; (c) a description of each and every reason Brunswick County provided

public water services to those areas; (d) a description of the legal authority authorizing the

installation, maintenance, servicing, and/or permission to install each and every one of those

water or sewer lines; (e) a description of the source( s) of funding for the installation, connection,

maintenance, servicing, and/or permission to install such water or sewer lines and the amounts

thereof; (f) a description of any and all written or oral policies, procedures, or practices relating

to Brunswick's provision of public water services to persons outside of the County's limits; and

(g) the amounts Brunswick charged for the provision of public water or sewer services on a

monthly basis, or connection or installation fees to persons residing within of the County limits

from 1970 to the present.

Answer: Objection. Defendant has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis. In addition, Plaintiffs have exceeded the permissible number of interrogatories that may be served under the North Carolina Rules of Civil Procedure. The request is likewise overbroad and unduly burdensome in its request for 41 years of information regarding the provision of water and sewer services.

Interrogatory No.7:

Describe in detail each and every request for the provision of public water or sewer

services, including requests for permission or authorization to tap into public water lines, from a

person(s) who resides or resided within Brunswick County limits from 1970 to the present,

including but not limited to all of the requests alleged in the Complaint and the Brunswick's

responses thereto, including but not limited to: (a) a detailed description of each and every

request for the provision of public water or sewer services; (b) the identification of the person(s)

who made the request, including his or her address at the time that he or she made the request;

(c) the identification of the person(s) who reviewed the request; (d) a description of the criteria

4


that Brunswick employed (if any) in evaluating the request, including written or oral policies,

procedures, or practices; (e) a description of the outcome of the request, that is, whether the

request was granted or denied, in whole or in part, and if granted, the source(s) of funding and

amounts contributed therefrom; (f) the amounts charged by the County for provision of these

services from 1970 to the present; and (g) each and every reason for your decision to grant or not

grant the request. To the extent that there are documents or other records which pertain or relate


Answer: Objection. Defendant has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis. In addition, Plaintiffs have exceeded the permissible number of interrogatories that may be served under the North Carolina Rules of Civil Procedure. The request is likewise overbroad and unduly burdensome in its request for 41 years of information regarding the provision of water and sewer services.

Interrogatory No.8:

Describe in detail all studies, reports, inquiries, investigations, or surveys related to the

limited to the Plaintiffs, members of ROCCA, or residents of the Royal Oak Community, and

with respect to each and every study, report, inquiry, investigation, or survey: (a) state each and

every reason for undertaking the study, report, inquiry, investigation, or survey; (b) describe each

and every conclusion(s), if any, ofthe study, report, inquiry, investigation, or survey; (c) describe

each and every decision to extend or not extend public water services to any location as a result

of the study, report, inquiry, investigation, or survey; and (d) describe each and every action

taken as a result of the study, report, inquiry, investigation, or survey and list all residences that

were the intended beneficiaries of such action. To the extent that there are documents or other

records which pertain or relate to your Answer, please identify those documents or records.

Answer: Objection. Defendant has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in

5


Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis. In addition, Plaintiffs have exceeded the permissible number of interrogatories that may be served under the North Carolina Rules of Civil Procedure.

Interrogatory No 9:

Describe in detail any oral or written, formal or informal complaints or charges of

discrimination or civil rights charges filed in any administrative, judicial, or other civil

proceeding against Brunswick County or against any agent, employee, officer, or representative

of Brunswick County, including but not limited to: (a) the name of the person(s) making the

complaint or charge and any contact information; (b) the substance of the complaint or charge;

(c) the person or entity to whom the complaint or charge was made; (d) the particular entity,

entities or individuals) alleged to be involved in the complaint or charge; (e) the current or

ultimate status of such complaint or charge; and (f) the identification of all documents and

individuals containing or possessing knowledge and/or information relating to your response to -

- any portion of this interrogatory request.

Answer: Objection. Defendant has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis. In addition, Plaintiffs have exceeded the permissible number of interrogatories that may be served under the North Carolina Rules of Civil Procedure. This Interrogatory furthermore covers an unreasonable period of time, and is unlimited in its scope. Moreover, through the use of the broad phrase "oral or written, formal or informal complaints or charges" the Interrogatory fails to give sufficient guidance/description of the information being sought as needed to provide an accurate answer.

Interrogatory No. 10:

Describe in detail any and all collaboration, joint efforts, joint discussions, meetings,

written or oral agreements, contracts or any other interaction in the County related to the

provision of public water or sewer services by the County to the Royal Oak Community or any

6


of its residents. To the extent that there are documents or other records which pertain or relate to

your Answer, please identifY those documents or records.



Describe in detail any and all of the Brunswick's activities in connection with proposed

and/or finalized projects to provide public water or sewer services to the Royal Oak Community

from 1970 to present. To the extent that there are documents or other records which pertain or

relate to your Answer, please identifY those documents or records.

Answer: Objection. Defendant has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis. In addition, Plaintiffs have exceeded the permissible number of interrogatories that may be served under the North Carolina Rules of Civil Procedure. Moreover, use of the general phrase "any and all activities in connection with" fails to give sufficient guidance/description of the information being sought as needed to provide an accurate answer.


IdentifY any expert that you intend to call in the trial of this case. For each expert provide

the area in which the expert will testifY.


7



To the extent that any of your responses to Plaintiffs' First Requests for Admissions are

anything other than an unequivocal admission, provide a detailed description of the reason or

basis for your response. To the extent that there are documents or other records which pertain or

relate to your Answer, please identify those documents or records.



Identify the members of the Brunswick County Board of Commissioners from 1970 to

date. For each member, identify the race of each member and the specific terms of service on the

Brunswick County Board of Commissioners.



Describe in detail all studies, reports, inquiries, investigations, or surveys from 1970 to

the present related to the siting or expansion of the municipal solid waste landfill and/or the

siting or expansion of the construction and demolition (C&D) landfill within the County,

including but not limited to studies, reports, inquiries, investigations, or surveys conducted by or

with Dewberry & Davis, Inc., and with respect to each and every study, report, inquiry,

investigation, or survey: (a) state each and every reason for undertaking the study, report,

inquiry, investigation, or survey; (b) describe each and every conclusion(s), if any, of the study,

8


report, inquiry, investigation, or survey; (c) describe each and every decision to locate a landfill

in a particular place as a result of the study, report, inquiry, investigation, or survey; and (d)

describe each and every action taken as a result of the study, report, inquiry, investigation, or

survey. To the extent that there are documents or other records which pertain or relate to your

Answer, please identify those documents or records.

Answer: Objection. Defendant has moved to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis. In addition, Plaintiffs have exceeded the permissible number of interrogatories that may be served under the North Carolina Rules of Civil Procedure.


Describe in detail the reason for siting the county animal shelter in its current location

and the process by which the county acquired the property. Your answer should include a

complete explanation for moving the animal shelter from its former location to the current

location, and should identify any and all site evaluation studies, reports, inquiries, investigations

or surveys which pertain or relate to the animal shelter. To the extent that there are documents or

other records which pertain or relate to your Answer, please identify those documents or records.



Describe in detail the reason for siting the Waste Water Treatment Plant in its current

location. Your answer should identify any and all site evaluation studies, reports, inquiries,

investigations or surveys which pertain or relate to Plant. To the extent that there are documents

9


or other records which pertain or relate to your Answer, please identify those documents or

records.

Answer: Objection. Defendant has moved to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis. In addition, Plaintiffs have exceeded the pennissible number of interrogatories that may be served under the North Carolina Rules of Civil Procedure.


Describe in detail any and all communications with the North Carolina Coastal Resources

Commission, the North Carolina Department of Environment and Natural Resources Division of

Coastal Management, or any other persons, entities or agencies concerning amendment of the

Official Brunswick County CAMA Land Use Plan Map with respect to Tax Parcels 1370000806

and/or 15200058. To the extent that there are documents or other records which pertain or relate


Answer: Objection. Defendant has moved to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis. In addition, Plaintiffs have exceeded the pennissible number of interrogatories that may be served under the North Carolina Rules of Civil Procedure.


Describe in detail the process of the county's purchase of Tax Parcels 1370000806 and/or

15200058, including any and all communications with the seller, any pre-purchase investigation

or analysis of the property purchased, the tax value of the parcel at the time of the purchase, and

the purchase price. To the extent that there are documents or other records which pertain or relate


Answer: Objection. Defendant has moved to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and

10


Defendant objects to this and every discovery request on this basis. In addition, Plaintiffs have exceeded the permissible number of interrogatories that may be served under the North Carolina Rules of Civil Procedure.


Describe in detail any and all communications with the North Carolina Department of

Environment and Natural Resources Commission and/ or the Carolina Coastal Resources

Commission concerning expansion of the Brunswick County C&D landfill and/or creation of a

new C&D landfill in Brunswick County. To the extent that there are documents or other records

which pertain or relate to your Answer, please identity those documents or records.



Describe in detail any and all communications with private parties, including but not

limited to Waste Industries Inc. and Sandlands C&D Landfill, LLC regarding the transport or

disposal of the County's municipal solid waste and/or C&D waste. To the extent that there are

documents or other records which pertain or relate to your Answer, please identify those

documents or records.

Answer: Objection. Defendant has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis. In addition, Plaintiffs have exceeded the permissible number of interrogatories that may be served under the North Carolina Rules of Civil Procedure. Moreover, this Interrogatory is overbroad in its request for 41 years of "all communications." Through use of the phrase "all communications with private parties" the Interrogatory is unlimited in scope and fails to give sufficient guidance/description ofthe information being sought as needed to provide an accurate answer.

11



Describe in detail the reasons that Commissioner Cooke recused himself from voting on

the rezoning on April 4, 2011. To the extent that there are documents or other records which

pertain or relate to your Answer, please identify those documents or records.


DEFENDANT'S OBJECTIONS TO PLAINTIFFS' FIRST REOUEST FOR PRODUCTION OF DOCUMENTS

Request No.1:

All documents relating to any of the Plaintiffs, the facts underlying this case, or any

allegation in paragraphs 16-147 of the Complaint.

Response: Objection. Defendant has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis. See also Defendant's objections to Interrogatory #1.

Request No.2:

All documents that you identified in response to Plaintiffs' First Set of Interrogatories to

Defendant Brunswick.

Response: Objection. Defendant. has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis. See also Defendant's objections to Plaintiffs' Interrogatories.

12


Request No.3:

All documents referring to the 1999 Solid Waste Site Evaluation or Suitability Study

prepared for Brunswick County by Dewberry and Davis, Inc., including the 1999 Trial Solid

Waste Sustainability Study for Brunswick County.

Response: Objection. Defendant has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis.

Request No.4:

All documents reflecting land values for the Royal Oak conununity between 1970 to date.

Response: Objection. Defendant has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis. This request is likewise unduly burdensome in its extensive scope. Moreover, the request is vague and overbroad in its use of the phrase "reflecting land values" and thus fails to give sufficient guidance/description of the information being sought as needed to provide an accurate document production.

Request No.5:

Copies of all Brunswick County Land Use Plans or Policies from 1970 to date.


Request No.6:

Copies of Brunswick County's Analyses ofImpediments to Fair Housing from 1988 to

date.


13


Request No.7:

Any and all architectural and engineering plans for the proposed landfill expansion by

Brunswick County.

Response: Objection. Defendant has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels ofland in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis.

Request No.8:

All documents that support or relate to the contention that the County did not have

responsibility or authority to provide any of the Plaintiffs, members of the ROCCA or residents

of the Royal Oak Community with water or sewer service.


Request No.9:

All documents relating to any and all of the County's efforts, plans, recommendations,

suggestions, budgets, meetings and any type of communication related to provide public water or

sewer services to persons residing in the Royal Oak Community from 1970 to present.

Response: Objection. Defendant has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis. The request is also overbroad and unduly burdensome in its request for 41 years of the vaguely described documents listed, and fails to give sufficient guidance/description of the documents being sought as needed to provide an accurate document production.

Request No. 10:

All proposed and final budgets for Brunswick County begiuning in 1970 to present.

Response: Objection. Defendant has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land

14


in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis.

Request No 11:

All documents relating to, referencing, or evidencing any and all collaboration, joint

efforts, joint discussions, meetings, written or oral agreements, contracts, or any other interaction

by Brunswick related to provision of public water or sewer services by Brunswick to residents of

Royal Oak Comrmmity.

Response: Objection. Defendant has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis. The request is also overbroad and unduly burdensome in its request for 41 years of the vaguely described documents listed. The general language of this request fails further to give sufficient guidance/description of the documents being sought as needed in order to provide an accurate document production.

Request No. 12:

All documents relating to your provision of public water or sewer services to persons

who reside or resided within Brunswick County from 1970 to the present, including but not

limited to all documents relating to; (a) the physical location of water mains or lines and the

dates on which Brunswick approved the extension of or extended the water mains or lines,

corresponding with the location of the extended main or line identified by street address; (b) the

number of properties connected to service; (c) dates that Brunswick provided any maintenance or

service on water or sewer lines, mains and/or pipes located within the Brunswick County limits;

(d) the corresponding location of maintenance or service, identified by street address; (e) the

costs( s) of and the source( s) of funding for installing, maintaining and servicing the water or

sewer lines, mains, and/or pipes within Brunswick County; (f) any and all written or oral

policies, procedures, or practices relating to Brunswick's provision of public water or sewer

services to persons within the County; and (g) the amounts Brunswick County charged for the

15


provision of public water or sewer services on a monthly basis or as a connection fee to persons

residing within the County limits from 1970 to the present.

Response: Objection. Defendant has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant obj ects to this and every discovery request on this basis. The request is also overbroad and unduly burdensome in its request for 41 years of the documents listed. The general language of the request fails further to give sufficient guidance/description of the documents being sought as needed in order to provide an accurate document production.

Request No. 13:

All documents relating to each and every request to tap individual residences into water

mains, lines or pipes to provide public water or sewer services to residences not previously

served from 1970 to present, including but not limited to all of the requests alleged in the

Complaint and the County's responses thereto.

Response: Objection. Defendant has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis. In addition, the language of this request is ambiguous and incomprehensible so that its intent cannot be fairly gauged, as well as overbroad and unduly burdensome in its request for production of documents generated over a 41 year period.

Request No. 14:

All documents relating to each and every request from a person( s) who resides or resided

within the County limits from 1970 to the present for permission or authorization to tap into

public water or sewer line(s), including but not limited to all of the requests alleged in the

Complaint and the County's responses thereto, including but not limited to all documents

relating to: (a) each and every request to tap into public water or sewer line(s); (b) the person(s)

who made the request; (c) the person(s) who reviewed the request; (d) the criteria that the County

employed (if any) in evaluating the request, including written or oral policies, procedures, or

16


practices; (e) the outcome of the request, that is, whether the request was granted or denied, in

whole or in part, and if granted, the source(s) of funding and amounts contributed therefrom; and

(f) each and every reason for your decision to grant or not grant the request.

Response: Objection. Defendant has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis. In addition, the request is overbroad and unduly burdensome in its request for production of documents generated over a 41 year period.

Request No. 15:

All documents relating to studies, reports, inquiries, investigations, or surveys related to

the provision of public water or sewer services to residents within the Brunswick County limits,

including but not limited to any studies or reports; any memoranda or correspondence to or from

Brunswick related to any such study, report, inquiry, investigation, or survey; and with respect to

each and every study, report, inquiry, investigation, or survey, all documents relating to each and

every action taken as a result of the study, report, inquiry, investigation, or survey.

Response: Objection. Defendant has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels ofland in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis. In addition, the language "related to the provision of public water or sewer services" fails to give sufficient guidance/description of the documents being sought as needed to provide an accurate document production. In addition, the request is overbroad and unduly burdensome in its request for production of documents generated over a 41 year period.

Request No. 16:

All documents relating to any and all information or data in the possession or control of

the County that indicates, relates to, or refers to the race of any of the residents of Brunswick

County or racial composition of any neighborhood, census tract, or area within Brunswick

County and/or the use of such information or data by the County.

17


Response: Objection. Defendant has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis. The request is furthermore overbroad and vague in its use of the phrase "indicates, relates to, or refers to the race of the residents," and thus fails to give sufficient guidance/description of the documents being sought as needed to provide an accurate document production. In addition, the request is overbroad and unduly burdensome in its request for production of documents generated over a 41 year period.

Request No. 17:

All documents supporting or relating to your contention that Brunswick did not

discriminate against the Plaintiffs, members of ROCCA, or residents of the Royal Oak

Community based on either their race or the racial composition of the area in which they reside

or resided.


Request No. 18:

All documents relating to any oral or written, formal or informal complaints or charges of

discrimination or civil rights charges filed in any administrative, judicial, or other civil

proceeding against Brunswick County or against any agent, employee, officer, or representative

of Brunswick County, including but not limited to all documents relating to: (a) the name of the

person( s) making the complaint or charge and any contact information; (b) the substance of the

complaint or charge; (c) the person or entity to whom the complaint or charge was made; (d) the

particular entity, entities or individual(s) alleged to be involved in the complaint or charge; and

(e) the current or ultimate status of such complaint or charge.

Response: Objection. Defendant has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision

18


and Defendant objects to this and every discovery request on this basis. See also Defendant's Objection to Interrogatory #9, hereby incorporated into this Response.

Request No. 19:

All documents, including but not limited to minutes, notes, memoranda, recordings or

any other communications, related to any Brunswick meeting, or any other meeting, at which

any of the following topics were discussed: (a) the provision or request for provision of public

water or sewer services to persons who reside or resided within the County limits; (b) any study,

report, inquiry, investigation, or survey related to the provision of public water or sewer services

to residents within the County limits and/or actions taken in response thereto; or (e) the purchase,

rezoning, or use of Tax Parcels 1370000806 and/or 15200058.

Response: Objection. Defendant has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis. The request is furthermore overbroad and vague in its use of the phrases "any Brunswick meeting, or any other meeting, at which any of the following topics were discussed" and "related to the provision of public water or sewer services" thus fails to give sufficient guidance/description of the documents being sought as needed to provide an accurate document production. In addition, the request is overbroad and unduly burdensome in its request for production of documents generated over a 41 year period.

Request No. 21:

All documents related to residential water account and/or billing records for persons who

reside or resided within the County limits from 1970 to the present.


Request No. 22:

All maps, diagrams, or other documents reflecting Brunswick County's public water

services distribution area, including areas within the County limits, as it existed at any time

19


between 1970 and the present, including the location of water lines, mains, plants, pumping

stations, and booster stations.


Request No. 23:

All documents related to studies, reports, inquiries, investigations, or surveys that relate,

in whole or in part, to a lack of potable water, or lack of public water or sewer services, in any

area(s) within the County limits


Request No. 24:

All personnel files of current and former employees of Brunswick County who were

responsible or played any role in determining whether to grant a request for public water or

sewer services, including a request to tap into water lines within Brunswick County.

Response: Objection. Defendant has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis. In addition, personnel information of county employees is confidential under N.C. Gen. Stat. § l53A-98, and "personnel files" are not subject to disclosure absent compliance with the mechanisms set forth in the statute. In addition, the request is overbroad and unduly burdensome in its request for production of documents generated over a 41 year period.

Request No. 24:

All requests made by the County for funding in any form, including but not limited to

grants and/or loans from the federal government, state government, private entities, semi-public

entities or agencies, related in whole or in part to the provision of water or sewer service to areas

20


within the County, and all grants or loans received by the County that were used in whole or in

part for same.

Response: Objection. Defendant has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis. In addition, the request is overbroad and unduly burdensome in its request for production of documents generated over a 41 year period.

Request No. 25:

All documents relating to Brunswick County's role in the provision of public water or

sewer services to residents within the Royal Oak Community.


Request No. 26:

All documents relating to any insurance policy which could be interpreted as insuring

you for all or part of the damages and expenses claimed by Plaintiffs in this lawsuit.


Request No 27:

All documents related to any expert or potential expert whom you may call at the trial of

this action including but not limited to each expert's resume and curriculum vitae; all documents

related to each expert's qualifications, experience and background; and all documents reviewed

by, relied upon, or used in forming each expert's opinions.


21


Request No. 28:

All documents the County intends to introduce into evidence at the trial of this case that

have not been produced in response to the above requests.


OBJECTIONS TO REOUESTS FOR ADMISSIONS

1. Admit that residents of the Royal Oak Community are presently not served by

County water or sewer services.

Answer: Objection. Defendant has filed a motion to strike Plaintiffs' discovery requests. This action challenges Defendant's legislative decisions to rezone two parcels of land in Brunswick County. Discovery is improper in judicial challenges to legislative zoning decision and Defendant objects to this and every discovery request on this basis.

2. Admit that Brunswick County dumped municipal waste of all kinds into the

landfill unti11997.


3. Admit that Brunswick County paid fines to the North Carolina Department of

Environment and Natural Resources ("NCDENR") for illegal dumping or waste at the County's

C&D landfill.


4. Admit that Brunswick County purchased Parcels numbered 806 and 058 from

Tripp's Construction, LLC on or about June 3, 2010.

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5. Admit that at the dates of their acquisition, Tax Parcels 806 and 058 were

purchased for the purpose of expanding the existing C&D landfill of Brunswick County.


6. Admit that before Parcels 806 and 058 were purchased by the Brunswick County,

representatives of Brunswick met with representatives of the North Carolina Department of

Environment and Natural Resources ("NCDENR") regarding a proposed landfill expansion.


7. Admit that neither the Plaintiffs nor members of ROCCA or residents of the

Royal Oak community were informed of said meeting with NCDENR.


8. Admit that Brunswick County failed to consider any other permitted use for the

rezoning of Parcels 806 and 058 other than for an expansion of the existing landfill.


9. Admit that the Parcels 806 and 058 are at least twice as large as the footprint of

the current landfill.

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10. Admit that Parcels 806 and 058 do not have water or sewer service.


II. Admit that Parcels 806 and 058 do not have access to either railroad or a major

road.


12. Admit that Parcels 806 and 058 include wetlands.


13. Admit that Parcels 806 and 058 are in the Royal Oak Community.


14. Admit there are a minimum of five operating sand mines already located in the

Royal Oak Community.


15. Admit that the County operates an animal shelter in the Royal Oak Community.

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16. Admit that said animal shelter has County water and sewer services.


17. Admit that said County animal shelter was moved from its location off N.C.

Highway 211 near the Winding River Subdivision to its current location in the Royal Oak

Community in 2000.


18. Admit that Brunswick County has not conducted a siting study to look for a

location outside of Royal Oak for a C&D landfill.


19. Admit that Sandlands C&D Landfill, LLC and other private parties have the

capacity to accommodate all construction debris waste produced in Brunswick County.


20. Admit Brunswick County currently has available alternatives to expanding the

C&D landfill, including but not limited to, recycling and the hauling of municipal and

construction debris waste to another landfill.

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21. Admit that there have been no significant changes in the Royal Oak Community

area since the adoption of2007 Land Use plan which would justify the rezoning.


22. Admit that the County has received and continues to receive Community

Development Block Grant Funds used for installation, extension, or maintenance of water and

sanitary sewer services.


23. Admit that the Defendant has failed to use any of such grant funds to provide the

Plaintiffs at the Royal Oak community with water and sewer services.


24. Admit that the Plaintiffs have repeatedly requested that the Defendant provide

them with water and sewer services.


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This the 24th day of August, 2011.

WOMBLE CARLYLE SANDRIDGE & RICE A Professional Limited Liability Company

James Jf.'Morgan, Jr. NCSB No. 12496 Julie B. Bradburn, NCSB No. 31412 Womble Carlyle Sandridge & Rice, PLLC 150 Fayetteville St., Suite 2100 P. O. Box 831 Raleigh, NC 27602 Telephone: (919) 755-2169 Fax: (919) 755-6176 Email: jbradburn@wcsLcom Attorneys for Defendant Brunswick County

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CERTIFICATE OF SERVICE

I hereby certify that on August 24, 2011, I served a copy of the foregoing document entitled DEFENDANT BRUNSWICK COUNTY'S RESPONSES TO PLAINTIFF'S FIRST SET OF INTERROGATORIES, REQUEST FOR PRODUCTION OF DOCUMENTS AND REQUEST FOR ADMISSIONS upon all parties to this action by depositing the same with the United States Posta1 Service, postage prepaid, properly addressed to their attorneys of record as follows:

Elizabeth McLaughlin Haddix, Esquire Peter Gilbert, Esquire UNC Center for Civil Rights 101 East Weaver Street Campus Box 3382 Chapel Hill, NC 27510

Raymond E. Owens, Jr., Esquire K&L Gates L.L.P. Hearst Tower, 47'h Floor 214 North Tryon Street Charlotte, NC 28202

Attorneys for PlaintiffS

WCSR 4635178vl

James''"R. Morgan, Jr. NCSB No. 12496 Julie B. Bradburn, NCSB No. 31412 Womble Carlyle Sandridge & Rice, PLLC 150 Fayetteville Street, Ste. 2100 P. O. Box 831 Raleigh, NC 27602 Telephone: (919) 755-2169 Fax: (919) 755-6176 Email: [email protected] Attorneys for Defendant Brunswick County

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