Thoughts on Being an Effective Local Government Attorney: Part I

Don O'Toole is a white man with light brown hair. He is smiling, wearing a dark grey button-down shirt, and standing outside of a grey building.By Don O’Toole

This is the first post in a series of three blog posts titled “Thoughts on Being an Effective Local Government Attorney and How to Best Work With Your Local Government Attorney,” written by Don O’Toole, who retired in January 2024 after 13 years with the Durham City Attorney’s Office.

I had the good fortune to be a local government attorney for the last thirteen years of my legal career. I worked with terrific attorneys in the Durham City Attorney’s Office, and my practice was focused on providing legal support to the City departments that provide service to the development community. Those departments include Planning, Public Works, Water Management, and Inspections. I enjoyed working with the dedicated professionals in each of these departments. I also enjoyed what I hoped were good professional relationships with the attorneys, engineers, and developers who worked to grow Durham’s economy. I was asked by our Section Council to put down my thoughts on being a local government attorney, and how outside attorneys should work with local government attorneys. What follows are some of my thoughts on this topic.

No. 1. What kind of a municipal decision is it?

Whenever asked a legal question by anyone, whether inside the City or outside, the first question I always asked myself was what kind of municipal decision-making authority is implicated by the question? We all know that local governments make three kinds of decisions: administrative, quasi-judicial, and legislative, and there are different legal constraints on each of these categories of decision-making authority.

Administrative decisions should be the most clear, but I fear that the staff’s authority regarding administrative decision-making is frequently misunderstood. Administrative decisions are those in which staff reviews a completed application against objective rules and standards. If the rules and standards are drafted correctly, then the review of an administrative application should involve the exercise of no discretion. Staff merely compares the completed application to the applicable standards, and then approves the application or not dependent solely on whether the application meets the stated requirements.

I recall a highly contested site plan application submitted to our Planners. Given the property’s approved zoning, and the developer’s intended use of the property, the City’s Unified Development Ordinance (“UDO”) classified the proposed site plan as a minor site plan, requiring only administrative approval by City staff. Staff diligently reviewed the site plan against the objective criteria established in the UDO, and reached the only possible decision available, which was approval of the site plan. Staff’s approval was pilloried by both the City’s residents and some local elected leaders. Staff and our office did our best to remind those who would listen that City Council approves rezonings and the provisions in the City’s UDO. Once those rules are established, and a decision is designated administrative, an application must be reviewed accordingly. Local governments can’t impose new rules on an applicant after a completed application has been submitted.

Quasi-judicial decision-making is different in that it requires the analysis of facts presented at a public hearing as applied to subjective criteria that are delineated in North Carolina statutes and in local zoning ordinances (e.g., that the proposed development will not adversely impact the value of adjacent property). As the North Carolina courts and State statutes make clear, many of the procedural safeguards that parties have in court hearings or trials must be provided in a quasi-judicial proceeding.  For example, ex parte communication is not permitted, witnesses are sworn in and are subject to cross-examination, and the rules of evidence generally apply to these hearings. Durham’s UDO and its Code of Ordinances assign quasi-judicial decision-making authority to the Board of Adjustment, the Historic Preservation Commission, the Housing Appeals Board, and to Council itself. Both City staff and the City Attorney’s Office provide legal training to these bodies so that each member understands their legal obligations. Because Council members are more accustomed to making legislative decisions, and because Council rarely hears quasi-judicial matters, in Durham, we make it a practice to remind Council of its legal obligations each time it hears a quasi-judicial matter.

One area that frequently trips up unrepresented parties at quasi-judicial hearings is the requirement for expert testimony on issues that require expert opinions, like a project’s potential impact on the value of adjacent property or whether a project will make the adjacent roads more crowded or less safe. These two topics arise in most quasi-judicial cases, and without expert testimony, it will be difficult for either an applicant or an opponent to make the case that an application should be approved or not. I was once representing Durham’s Board of Adjustment (“Board”), and the principal of a school who served autistic children was before the Board seeking a minor special use permit, which is a quasi-judicial decision under Durham’s UDO. She testified about the amazing services that the planned school would provide, but she had no experts to testify about real estate values or the traffic impacts of the school on an already overburdened road. The Board struggled because the principal presented a very sympathetic case for the need for a school that would provide service to autistic children, but she could not meet the school’s evidentiary burden on the two critical criteria because she had no experts with her to testify. I asked the Board for a recess. During the recess, I spoke to the applicant, and while I made it clear I was not offering her legal advice, I suggested to her that it was unlikely her case could be approved without the required expert testimony. I suggested she might want to request a continuance. She did that, and then retained an excellent local land use attorney. At the continuation of the school’s case, the attorney presented a very compelling case, with the required expert testimony. The special use permit was approved unanimously.

Interestingly, during my time with Durham, there were a couple of instances in which City departments sought special use permits for very important City projects. On occasion, the department would not notify our Office of the application, and the department would attempt to proceed just like the school principal—without experts lined up to testify. Fortunately, we learned of these applications shortly before the hearings, and the City was able to retain the required experts on very short notice. Our Office would explain to City staff that yes, the City’s rules apply to City projects, just like any other development project in Durham.

Generally, only the local government’s governing body makes legislative decisions. Things like ordinances in city codes or provisions in a unified development ordinance are approved by the governing body after a public hearing is held. The governing body listens to staff, receives public comment, and then uses its sound discretion to either approve or disapprove the proposed ordinance. The governing body has greater latitude in making these decisions. A legislative decision will only be overturned if it violates state or federal law, is unconstitutional, or amounts to an abuse of discretion. From time to time, our Office advised Council that each member is free to raise their questions and concerns during legislative hearings, and then Council can vote as it sees fit in the exercise of its sound discretion. Sometimes it is wiser for elected bodies to say less rather than more about the rationale for a legislative vote. However, many elected officials find this difficult to do given their desire to communicate with their constituents through their votes and their comments from the dais.

Stay tuned for the next post in this series.

Don retired from the Durham City Attorney’s Office in December 2024 after 13 years of service to the City. At the time of his retirement, he held the position of Senior Deputy City Attorney. In that role, he assisted the City Attorney in the management of the Office, and he provided legal assistance to the development-focused departments (Planning, Public Works, Water Management, and Inspections). He worked in private practice and at the NC Attorney General’s Office (Transportation Section) in the ten years prior to joining the City Attorney’s Office. Prior to attending law school, Don worked as a civil engineer, designing bridge foundations for the NC Department of Transportation. Don is both an attorney and a licensed professional engineer. Don graduated with an Sc.B. in Geology-Biology from Brown University in 1982, a B.S.C.E. from NC State in 1988, and his law degree from Carolina Law School in 2000.