Very sneaky, cities — using science to buttress your buffer rules

A buffer of trees and bushes along the Catawba River

A buffer along the Catawba River (Photo: Grady McCallie)

T he bystanders and lobbyists who this afternoon popped over to the Senate Rules Committee from House Environment — where Rep. Jimmy Dixon was comparing the science behind spraying landfill juice into the air to the eureka moment of discovering the Earth is round (a bumpy spheroid, actually, but more on that later) — were equally entertained by their senators’ keen minds.

Riparian buffers, one of the provisions in SB 434, a gumbo of environmental laws, were doubted, defamed and denigrated as “veneer environmentalism” by Sen. Andy Wells. Yes that Sen. Wells, a self-described “fan of water quality: a Republican Realtor who co-sponsored a Regulatory Reform bill that would allow developers to destroy longer stretches of streams with impunity.

But back to the buffers. These areas of vegetation — brush, trees and the like — that flank waterways, both intermittent and continuous, are key to preventing flooding, filtering pollution and providing homes for wildlife.

“But do they work?” said Wells.

Well, yeah, according to science.

Current legislation requires local governments that want to supersede the  puny 50-foot buffers mandated by the state to present scientific evidence that they need stricter rules in their watersheds. With that latitude, some jurisdictions, as NCPW reported last fall, have chosen to impose wider buffers — 100 feet to 250 feet depending on the vulnerability of their respective ecosystems.

Using that provision, Cary, Carrboro, Wake County and Orange County threw themselves on the mercy of the Environmental Management Commission, paying tens of thousands of dollars to produce scientific studies proving that their buffer rules were sound and necessary. These jurisdictions were allowed to keep their buffer rules.

However, cities and towns, said GOP Sen. Bill Rabon, “use this provision to get around the buffer rules.” To circumvent the municipalities’ alleged circumvention, SB 434 would put the kibosh on that, which would benefit the real estate and development communities

Local governments could not use science to plead their case. They would have to adhere to puny 50-foot buffers mandated by the state — unless these protections were implemented before 1997. This includes the Catawba River, a drinking water source for 2.5 million people and an area that has been heavily developed along the shoreline.

Sen. Floyd McKissick Jr., a Durham Democrat, noted that if the state’s geography were uniform — like Kansas — then perhaps this provision would make sense. “This [50-foot width] is a floor not a ceiling,” McKissick said. “We have areas with steep slopes and flat plains.”

Sen. Terry Van Duyn, a Buncombe County Democrat, asked Wells, “Why don’t we see if buffers are working?”

Wells, who, incidentally, co-sponsored the “Protection from Government Overreach Act”, used a false equivalency to justify the weak buffer rules. “How about everybody else, dumping nutrients from their yards into the street, which are piped straight into the creek?” he said. “We’re getting hung up on a buffer issue when there are other things [to consider].”

Both activities can be regulated, without precluding the other. Nonetheless, SB 434, which includes repealing a plastic bag ban on the coast, passed the rules committee with a favorable recommendation to the full Senate.




House panel OKs charter school growth bill, corporate “perks” for charter partners

A divided House Education Committee gave their approval Monday to a pair of controversial charter school bills, one of which will allow charters to expand student enrollment by up to 30 percent with no additional state review of their performance and finances.

The second proposal, House Bill 800, led by Rep. John Bradford, R-Mecklenburg, would speed “perks” for private charter school partners by providing their children enrollment priority for up to half of the school’s population, a provision that critics likened to making public charters into “de facto, segregated private schools.”

“To me, this is just a step too far away from the public aspect of public charter schools,” said Rep. Graig Meyer, a Democrat representing Durham and Orange counties. “This is setting up something that feels proprietary in nature.”

Both bills provoked the ire of committee Democrats; both were voted through with a Republican majority.

According to Bradford’s bill, charter partners includes private companies that donate land or infrastructure to charter schools, as well as companies that provide renovations or technology to the schools.

“This is something they can give to their employees,” said Bradford. “Their employees will be happy and their kids will be in good schools.”

Rep. Graig Meyer, D-Orange

But Meyer said the provision subverts the intention of keeping charter schools accessible to all students, suggesting it would allow some charters to be turned into “company” schools.

Bradford rejected that criticism, calling the proposal a “no-brainer,” shortly before the divided panel approved the legislation, which will now go to a House finance committee before it sees the full House floor.

Meanwhile, the version passed Monday strips language that would direct county commissioners to control funding appropriations to charters within their district, a proposal that had the seeming support of school district advocates.

The current method, under which local school districts are charged with turning over state funds to charters, has prompted lawsuits and acrimony over the last decade.

Committee lawmakers also signed off on a major charter reform bill, House Bill 779, that, among its provisions, gives charter operators the power to expand enrollment by up to 30 percent without requiring the approval of the state’s charter office and the State Board of Education, an idea hotly criticized as reducing quality control measures in the state’s booming charter sector.

Read more

Courts & the Law, News

U.S. Supreme Court takes no action after re-visiting “monster” voting law

The U.S. Supreme Court did not announce any action Monday regarding a North Carolina voting rights case justices discussed at a Friday conference.

As Rick Hasen said last week, “no news is no news,” and doesn’t necessarily indicate anything good or bad. The Election Law Blogger speculated that the case may be relisted for a third time this upcoming Friday conference, with a possible announcement next Monday.

There are three parts to consider in the case North Carolina v. North Carolina State Conference of the NAACPand justices could decide to take up and/or resolve one part, all or none.

The first part is the appeal as a whole. The second part is a motion to dismiss the appeal that was filed by state Attorney General Josh Stein and Gov. Roy Cooper. The third part is a motion filed by the state legislature to intervene in the case and keep the appeal alive.

You can read more about the case and the Supreme Court’s review here.

Courts & the Law, News

Court of Appeals judge resigns in reaction to bill shrinking bench; Cooper appoints new judge in wake of veto

John Arrowood

Judge Douglas McCullough

It looks like Republican lawmakers are going to have to wait a little longer for their plan to reduce the Court of Appeals to take effect, even if they choose to override the governor’s veto of House Bill 239 this week.

Judge Douglas McCullough, who is a registered Republican, resigned today from the state Court of Appeals. The judge was facing mandatory retirement in May because of his age.

Democratic Gov. Roy Cooper announced after McCullough resigned that he appointed Judge John Arrowood to fill McCullough’s vacancy.

Arrowood, who is openly gay, was working as an attorney at James, McElroy & Diehl in Charlotte. He is a North Carolina native who previously served on the Court of Appeals (2007 and 2008 after former Gov. Mike Easley appointed him) and as a Superior Court Judge.

After law school, Judge Arrowood served as a clerk for Judge Gerald Arnold at the state Court of Appeals, and he was a staff attorney and head of the central staff for the Court, according to Cooper’s office.

“I am deeply appreciative to Judge McCullough for his service to our state and our country,” Cooper said in a news release. “I’m proud to appoint Judge Arrowood to fill this vacancy on the Court of Appeals, a court where he has previously served with distinction. His experience as a judge on this court makes him uniquely qualified to hit the ground running and ensure that justice is swiftly delivered.”

You can read McCullough’s resignation letter here. Cooper held a press conference but only gave about 15 minutes notice beforehand.

John Arrowood was sworn in Monday morning to serve on the Court of Appeals. (Photo released by Gov. Roy Cooper’s Office)

Arrowood, who is a registered Democrat, was sworn in at 9:45 a.m.

Cooper, on Friday, vetoed HB 239, which would reduce the Court of Appeals by three judges.

The bill mandates that vacancies not be filled until the court reaches 12 judges. Since the bill was vetoed, McCullough’s resignation allowed for Cooper to make an appointment.

Judges on the Court of Appeals serve in three-judge panels. If McCullough were to retire as mandated by his age, the court of would have lost an entire panel in May, increasing its workload by an automatic 20 percent.

The next two judges who serve on the Court of Appeals to face mandatory retirement are Robert Hunter Jr. and Ann Marie Calabria in 2019, both registered Republicans.

Experts, advocates and legal stakeholders said that losing a panel on the Court of Appeals would almost certainly result in delays.

Cooper said at the press conference, according to a tweet, that McCullough resigned from the court because he did not agree with HB 239.

Republican General Assembly leaders have not yet released a response to the news of Arrowood’s appointment. Rep. Justin Burr, who sponsored HB 239, also has not released a response.


After months of delays, Senate committee to hear class-size funding fix

A long-stalled proposal to assuage a looming class-size funding crisis in North Carolina public schools is finally slated for a hearing in the state Senate.

Late Sunday night, Senate leadership added House Bill 13 to the Senate Education Committee’s agenda Monday evening.

The bipartisan proposal is written to offer relief to districts across North Carolina who say they will have to find millions more in local dollars or fire scores of arts and physical education teachers to make room for new core subject educators.

The controversy comes after GOP lawmakers offered budget directives last year that would, beginning with the 2017-2018 academic year, require districts trim class sizes in grades K-3. Without additional state funding or greater local flexibility, districts said there would be painful repercussions for many school systems in order to enact the smaller class sizes.

Last week, Policy Watch reported on House Bill 13’s ongoing logjam, which prompted stern warnings from leaders in North Carolina’s largest school district—Wake County Public School System—that a lack of local flexibility over class sizes would reap “enormous disruptions” in the school system.

Those disruptions could include, in addition to many layoffs, packed classrooms of up to 40 students with two teachers and student reassignments. Many districts say they would also be facing a pressing need for more classroom space.

And, with many districts currently developing their budgets for the coming school year, K-12 leaders say state lawmakers must act quickly to offer clarity as soon as possible.

The proposal was originally assigned to a heavily backlogged Senate Rules & Operations Committee, but officials withdrew the bill and reassigned the legislation to the Senate Education Committee late Sunday.

Tonight’s committee meeting is currently set for 6 p.m. Check back with Policy Watch for updates on this major piece of legislation.