The Case for At-Large Seats – Fayetteville City Council

Recently, our City Council made it more difficult to run for City Council by increasing filing fees five-fold. It used to be $24 to run. It’s now $170. The result of this change was that fewer people ran for City Council in 2019. Big surprise. In fact, four of our current nine City Council members are unopposed this year.

We had a primary yesterday for two of the “opposed” seats, and turnout was abysmal:

This post proposes a change that I believe will encourage community involvement in these elections and bridge divides in our city and its government. But first, I have to take you to school:

History Lesson (2007)

In 2007, I was a 1L at Campbell Law, and you could still get the Fayetteville Observer in print at the Buies Creek Short Stop. I remember reading about a movement in Fayetteville to change our City Council from 9 individual district seats to 6 individual district seats and 3 “at large” seats. The idea was that the at-large seats would reflect the interests of Fayetteville “as a whole.” The term “mini-mayors” was thrown around. The new council would be a blend of neighborhood and city-wide interests. Supporters said it would help bring Fayetteville together and allow for greater consensus. Those opposed argued that the plan was an attempt to dilute minority power on the council.

In 2007, Cumberland County was a “covered county” under Section 5 of the Voting Rights Act. We received that special treatment in 1965 due to our past history of minority voter suppression. As a result of being a “covered county,” any proposed change to our City Council’s makeup had to get “preclearance” from the United States Justice Department to ensure that the new plan did not impair the ability of minorities to get elected.

The United States Justice Department looked at the proposed plan and quickly shot it down, arguing that the plan “retrograded” the ability of minorities to get elected on the council. The Department used the failure of African American candidates in past “at-large” elections and the ouster of Mayor Marshall Pitts in a “racially polarized” election in 2005 to support its position:

Here’s the Justice Department’s letter to Fayetteville if you want to read it in full:

Once the Justice Department made its voice heard, the idea of at-large seats fell by the way-side.

Shelby County Decision

In 2013, the United States Supreme Court held in the case of Shelby County v. Holder that the “preclearance” requirement was unconstitutional. Why? It was out-dated. It used data from the 1960’s:

A statute’s “current burdens” must be justified by “current needs,” and any “disparate geographic coverage” must be “sufficiently related to the problem that it targets.” The coverage formula met that test in 1965, but no longer does so.

Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. And voter registration and turnout numbers in the covered States have risen dramatically in the years since. Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity.

– Chief Justice John Roberts, Writing for the 5-4 Majority in Shelby County

In the end, you still can’t violate the Voting Rights Act, but you don’t have to go to the Justice Department to get permission whenever you want to make a change to your system of local government.

In order to successfully challenge a change to a voting system, you need current data to prove that the change will result in a retrogression of minority representation. In short, will the racial makeup of your elected body change if you make the changes you want to make? If not, you’re probably good to go.

Are you seeing where I’m going with this? Keep reading.

Current State of Fayetteville Politics

Prior to the ouster of Tyrone Williams, our City Council had 5 minority members out of 9, and it will most likely be that way after November’s election. I don’t think this makeup will change in any significant way with at-large seats. Why? Fayetteville politics have changed a lot since 2007.

Look at our judicial elections as of late. Cheri Siler-Mack, April Smith and Stephen Stokes are African Americans that have dominated recent county-wide judicial races.

In addition, look at Mayor Mitch Colvin. He took out incumbent Nat Robertson with over 59% of the vote. It was a landslide. Colvin’s so strong city-wide that he’s not even being challenged in 2019.

Finally, Cumberland County currently has two “at-large” seats on its County Commission. One is an African American. One is white. Seems to be working out o.k., doesn’t it?

As you can see, this isn’t 1965, or even 2007. It’s easily argued that it’s an advantage, and certainly no disadvantage to be a minority in a city-wide election in Fayetteville in 2019.

The Case for At-Large Seats

Fayetteville’s number one problem from my perspective is that it’s a city of competing factions. Yes, some of these are racial factions, but our current City Council lines are adding to the problem. The current districts are not congruent at all. Look at District 4 for proof.

Council members have an incentive to look after “theirs” without regard to the needs of those in other districts or the city as a whole. As it stands today, the Mayor is currently the only decision-maker on Hay Street that is accountable to all of us.

Having some city-wide, “at large” seats would necessitate city-wide campaigns. Those seeking the seats would have to appeal to the needs of Fayetteville as a whole, campaign outside of their own neighborhoods, and develop ideas and platforms to bring the city’s voters together. The result, I think, would be more people participating in these elections and a less polarized Fayetteville.

In the end, it’s easier to bridge the divide when you represent both sides of Cross Creek.

The Museum We Cannot Name

Back in June, this site posted several polls covering the likelihood that the Civil War Museum planned for Fayetteville would be funded and constructed. Since that time, the museum appears to be on track to receive 48 Million in state funds. But back home, dissent is growing.

Last night, Val Applewhite and the NAACP organized a community meeting called “Black Voices, Stolen Choices” to express discontent with the museum, as planned. Mayor Mitch Colvin gave a speech. Here’s one line:

“This is about priorities, and this is about a divisive concept that will not be accepted and not leave our community a better place.”

Mayor Mitch Colvin (9/27/19)

Here’s the ABC11 story on the meeting, with video: Community holds discussion over proposed Civil War Museum.

Now, Colvin and other African American leaders want to change the name and the “concept” of the museum before they will support it. Do you think they are serious? Or are they simply trying to sink the project all together? Let me point out some simple facts before you decide:

  1. The state budget allocates money for a Civil War Museum.

2. The museum’s website is nccivilwarcenter.org.

3. This is a museum about the Civil War and Reconstruction and has been since its inception, in 2007.

Yes, the Civil War & Reconstruction Center has been in the works for over a decade. It takes a lot of planning to pull something like this off. Colvin and others knew that when they voted for it the first time.

At this stage of the game, to have a public meeting and argue you want to change the name and the “concept” means you don’t support the museum. So just come out and say you don’t support it. Don’t try to modify it into something you know will not receive public support and state funding. Don’t hold public meetings in the name of “gauging” the support of the community when you are simply trying to pull the public to your new-found side.

You’ve changed your mind. You don’t want this museum on Haymount Hill. You’d rather the City’s money be spent elsewhere. Say so.

Perhaps I’m being too hard on our City Leaders? I’ve been pessimistic about this project’s chances since the beginning. That’s probably bleeding through. But now, I feel like it’s dead in the water.

In the end, this is a battle about race. It was in 1860. It was in reconstruction. It is now.

It shouldn’t have to be. This is 2019. That was the whole point. This “museum of the future” was supposed to transcend all that and “tell both sides” and “bring us together.” Now we can’t even get past the name.

In the end, it takes leadership to transcend something that powerful. Right now, I don’t see it.

Do you?


The Giving Trees of Fayetteville

Yesterday, the Fayetteville Observer released an opinion piece criticizing the City Council’s decision to amend the UDO’s tree ordinance. The Observer’s article included misleading information. This morning, the Observer posted the piece again on its facebook page, aggravating some in town.

The purpose of this post is to give some clarity to the issue and let you draw your own conclusions.

Background

A “specimen tree” is defined by our city code as a tree with a caliper measurement of 30 inches.

If you’re going to chop down a “specimen tree” in Fayetteville, you need a good reason.

You also have to pay a fine:

Note that this fine is $100.00 per caliper inch for all trees above 30 inches.

This is a tree caliper:

The tree in this photo is about 10 caliper inches.

Under the current formula, you take the number of inches on your caliper, multiply it by by 100, and pay that many dollars to City Hall. For commercial developers, it gets expensive, fast. Trees don’t grow in isolation.

Observer “Our View” Omission

On Monday the council voted to reduce the “fine” on the removal of specimen trees from $100 per caliper inch to $50 per caliper inch.

The vote was 9-1. Only Tisha Waddell voted against it. In short, the council threw a bone to developers.

But the Fayetteville Observer took the view that this was a mistake:

Read the piece with this link.

It starts like this:

Members of the Fayetteville City Council took some time Monday to go after trees, and we are perplexed as to why.

A subsequent paragraph shows why the Observer might be “perplexed”:

“For the privilege of removing so-called “specimen trees,” defined as those with a diameter of 30 inches or more, developers will now be charged $50 per tree instead of $100.”

Are you seeing what they left out? It makes it seem like developers are nickle and diming the city over $50 per tree.

The omission is strange because John Henderson, a reporter for the Observer, got the facts right in an article that ran at the same time:

Fayetteville Makes it Less Expensive for Developers to Take Down Large Trees

Henderson noted the fee was “per caliper inch” and that a 30 inch tree could run a $3,000 fine under the current code. I guess the Observer’s opinion writers either glossed over or didn’t read Henderson’s reporting.

Wrap-Up

If you’re going to criticize elected officials for encouraging development in Fayetteville, you should print accurate facts.

I hope you have enjoyed our discussion of tree calipers. I know I have.

Image result for the giving tree happy not really

Update (9-26-19)

The day after this post was published, the Fayetteville Observer corrected the online version of its original article.

Full Court “Press” Downtown

In my younger days, I played a lot of AAU basketball. I still remember a 13-and-under opponent from Raleigh called the “Beatty Bunch” that ran a wicked 1-3-1 press, the entire game. They were good at it. They got a lot of steals and easy buckets, and it wore you out.

When you’re facing a 1-3-1, the most important thing is not to panic. You have ten seconds to get the ball over half-court, and while this doesn’t seem like much, it’s plenty of time if you know what you’re doing. Patience under pressure beats the 1-3-1 every time.

There’s another type of “press” going on right now. The News and Observer is running articles about Fayetteville’s business partners and their conflict of interest problem.

In short, what happened in Fayetteville was wrong, and the UNC Development Finance Initiative where Jordan Jones and Mike Lamanski worked is putting in new measures to ensure the “wrong” doesn’t happen again.

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In response, Prince Charles Holdings is showing back up in Fayetteville’s Press to put a positive spin on their project:

It’s important that these guys show “continued work,” because they are behind schedule. The “facade” of the parking deck is supposed to be done in ten days according to the contract.

We’ll see if that happens. In the meantime, we continue to have a parking space problem.

Conflicting Documents

If you’ve read this blog, you realize that I’ve been following this deal for a year and a half. As an attorney, I know that it doesn’t mean anything unless it’s written on paper, so I started with a public records request for the City’s contract with Prince Charles Holdings. That contract has now been amended five times and the details have gotten “cloudier” over time.

As a reminder, the parking deck is supposed to have 492 spaces. Here’s how the various plans and contracts have allocated these spaces:

3rd Amendment

The 3rd Amendment to the Downtown Development Agreement (from 2017) provided a very specific allocation of spaces:

  • 120 Hotel
  • 155 mixed used building
  • 90 Prince Charles Apartments
  • 127 to City (remainder)

Mohn Memo

Several months ago, Councilman Ted Mohn circulated his interpretation of the plan, which would only leave 32 spaces for city residents:

It was this allocation that gave me the most concern. 32 spaces for the public in a publicly-funded parking deck is absurd on its face. Here’s my radio rant about it on Good Morning Fayetteville:

5th Amendment

In June, when Prince Charles Holdings came back and asked for 1+ Million more tax dollars for “our” deck, they changed the contract again.

The new, 5th Amendment to the Downtown Development Agreement leaves out the Prince Charles Apartments and the Hotel and gives more spaces to the City:

Math Problem

It’s cloudy now. That’s the short of it.

As you can see, you can’t “mesh” the allocations from each contract because you run out of spaces:

250 (offices) + 120 (hotel) + 90 (Apartments) + 167 (City) = 627 spaces

The deck only has 492 spaces, remember?

City Leaders Won’t Provide Clarity

I’ve asked multiple city council members, the mayor, city managers, and the city attorney for the true allocation of parking spaces in the new deck. I’ve pointed out the inconsistencies in the contracts. No one will provide me with a straight answer.

I made formal public records request for any city document providing the “plan” for the deck. Apparently, there is no plan:

I’m stuck. It’s “wait and see” at this point. Maybe that’s where they want it?

Wrap Up: Pessimism or Optimism

In the last analysis, there’s a few ways to look at what’s going on. I’ll let you decide:

Optimism: There is a chance that the plans have changed, for the positive. Public pressure has forced City leaders and PCH to change the contract to give the public more spaces, or at least “share” them at certain times.

Pessimism: The plan has not changed or has gotten worse for the public, and PCH and City Leaders have intentionally made the contractual documents “cloudy.” They don’t want you to know the real deal because they know it’s not good for the public, or public opinion.

If you care about this issue at all, I’d encourage you to email your council member or the mayor and ask them for the “plan” for the public deck.

Put the 1-3-1 press on them!

Maybe you’ll have more luck than me.