[Durham INC] Court turns down man’s claim against city for legal fees

[Ed Harrison]

Court turns down man’s claim against city for legal fees

Durham Herald Sun 8/7/2013
Ray Gronberg

A N.C. Court of Appeals panel has rejected a Durham man’s request that it force the city to pay the $93,022 in legal bills he incurred while winning a case against city/county planners.
The three-judge panel unanimously ruled that a state statute that allows the winners of some court cases to recover legal costs only applies to state government, not to cities and counties.
“Because counties and municipalities are considered local units of government, they do not constitute ‘agencies’ for purposes” of the relevant statute, Judge Mark Davis said in an opinion joined by fellow Judges Martha Geer and Linda McGee.
The appeals court sided with Superior Court Judge Carl Fox in ruling against the claim from Oberlin Drive homeowner Robert Izydore, who went to court in 2009 to block a developer’s construction plans.
Izydore objected to decisions from City/County Planning Director Steve Medlin and the Durham Board of Adjustment that would have allowed a builder to dodge long-standing, privately established lot-size requirements in his neighborhood.
He twice won at the trial-court level.
In 2010, Superior Court Judge Robert Johnson ordered the Board of Adjustment to hold a new hearing on the matter. A year later, after the Board of Adjustment again sided with the would-be developer, Superior Court Judge Carl Fox ruled its actions to be “unreasonable [and] arbitrary” and directed city officials to honor the lot-size limits.
But the victory came at a high cost, labor-wise, as Durham attorney Hayes Hofler and another lawyer who helped Izydore had to spend more time than they anticipated fighting the city’s decisions.
Hofler said the fight was “very difficult” because officials joined forces with the developer’s lawyers to defend Medlin’s initial ruling.
He and Izydore asked the city to shoulder Izydore’s bills, but the city declined, contending there’s no law requiring it to pay. Fox agreed.
The subsequent appeal was about “whether citizens shall have access to the courts to prosecute legitimate grievances against the government,” Hofler said in a court filing.
Absent the possibility of recovering fees, a citizen who can’t afford legal representation has to accept the government’s decision, regardless of its merits, he added.
The appeal invoked a statute that’s been on the books since the 1980s that allows persons “contesting state action” under North Carolina’s Administrative Procedures Act and other laws to recover “reasonable attorney’s fees” if they win.
Davis in his opinion observed that the statute is ambiguous, but said it appears to cover only state agencies because there’s another one that allows fee claims against cities and counties that act “outside the scope of [their] legal authority.”
A prior case involving Durham County’s Department of Social Services saw a fee award benefiting the winner only because DSS is really a state agency, Davis said.
But Hofler in his filings contended there’s really no such thing as “local government” in North Carolina, as the state constitution allows the General Assembly to organize cities and counties as it sees fit.
They “are constituent parts of state government, to be treated and adjudicated as agencies just as surely as executive-level agencies are” under the law, he said.
That’s an argument that could form the basis of an appeal that impinges directly on one of the major arguments that’s been playing out in North Carolina since party control of the General Assembly changed from Democrats to Republicans in 2010.
Republican legislators have voted repeatedly to clamp down on local-government authority, this year passing laws intervening in Durham’s 751 South dispute and taking control of Charlotte’s airport and Asheville’s water system away from those cities.
Tuesday’s ruling as it happens came from an all-Democratic panel of judges. Davis until late last year was general counsel to former Gov. Beverly Perdue.
The N.C. Supreme Court, which would have jurisdiction over any further appeal, is majority Republican.
But Supreme Court procedural rules say it doesn’t have to take a case when an appeal court panel ruling is unanimous.
Hofler on Tuesday said it was too early to say whether Izydore will ask the high court to step in.
“We are considering that, but obviously [the ruling] just came out today and we haven’t had enough time to decide what avenue to take,” he said, adding that it’s also possible to ask the Court of Appeals to reconsider.
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