No Court Reporter, No Record, Very Upset People!

How many failed recording systems will it take for governmental regulators and decision-makers to finally figure out that when you have an important issue before you that the proper and most viable way of preserving those important words that are being said is to hire a reporting agency who will supply the right person for the job. It seems obvious that a "court reporter" would have preserved the record and then the proper channels of governmental communication could been followed and all this bruhaha avoided.

~ The Beagle

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

Group petitions court to overturn aldermen's actionApril 11, 2008
Nikie Mayo
Sun Journal

A group of downtown proprietors and property owners is asking a judge to either deny the city-issued permit for the 75-foot Talbot's project or order a new hearing on the matter.
About two dozen business owners or landowners have filed in Superior Court a "petition for review of the issuance" of the conditional-use permit that is needed in New Bern for construction to begin on the building.

The city intends to treat the appeal "just like we treat any other case," City Attorney Scott Davis said this week.

The appeal alleges multiple "procedural and substantive errors" in the permitting process, among them failure of the city to maintain a record of the hearing held before aldermen voted to approve the permit on Jan. 8. The appeal also alleges that Davis had a conflict of interest and that he "improperly and incorrectly" advised the Board of Aldermen to reverse a decision from Dec. 11 that would have denied the permit.

The building, a project of UHF Development LLC, is to be constructed at the northwest corner of Craven and South Front streets. As proposed, the building will have retail on the bottom floor, a requirement that the aldermen placed on the project when bids were solicited. The remaining floors will have residential space.

UHF, a company with offices in New Bern and Raleigh, bid $1,050,000 on the project and was awarded the contract two years ago. The plan has been called the Talbot's project because city leaders believe that such a building would woo that retail store to the city.

The conditional-use permit for the project was approved three months ago and was issued in February, but its issuance came with controversy.

Opponents of the proposed structure say it is too tall and is not "in harmony" with the surrounding area - one of the requirements that must be met before a conditional-use permit can be granted. In January, those opponents said they did not understand why the city would reverse its earlier decision that the project failed the harmony test.

In February, Davis said he anticipated that some portion of the Talbot's project process would be litigated, but did not elaborate.

The petitioners filed their appeal of the permit decision about two weeks ago.
"We just felt like there are procedural errors and that the city's procedures need to be reviewed by a judge," said Terry Startsman, a downtown resident and one of the petitioners.
Startsman said the appeal was organized by the Preservation Legal Action Trust, which was called the Preservation Legal Action Team before its name changed last month.

"This is mainly a group of concerned residents and merchants," he said. "It's unfortunate that it had to come to this. We don't want to make a federal case out of it and we don't want to try it in the press, but we do believe that a judge needs to look at it."

The appeal filed alleges several errors in the process that led up to the issuance of a conditional-use permit.

It alleges a "lack of owner consent" to the application for the permit.

"The Board of Aldermen, as the entity in charge of city-owned property, never authorized the application for the conditional-use permit," the appeal states.

The lot where the project is to be built is still city owned. UHF intends to buy the property, but the sale cannot go forward until the permit matter is settled, according to Troy Smith, the New Bern attorney for the company.

The appeal alleges that the city failed to maintain a complete record of the hearing. The city's ordinance on records of conditional-use-permit hearings says: "A record ... shall be made by a court reporter or by electronic means. Accurate minutes shall also be kept of all such proceedings."

Davis took notes during the hearing, but it is unclear whether those notes qualify as a record made by a court reporter.

The hearing was recorded to be rebroadcast on the local-access channel Cable 10, but because of equipment failure, about an hour and 45 minutes of the hearing are missing. The portion that is missing includes the discussion about whether the Talbot's project would meet the city's harmony requirement.