Thoughts on Being an Effective Local Government Attorney: Part II

By Don O’Toole

This is the second piece 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. Part I was posted on October 10, 2024.

No. 2. Requests for Legal Interpretations of the Unified Development Ordinance (UDO)

I was frequently asked by outside parties to provide legal interpretations of the language in Durham’s UDO. Our UDO let me off the hook because the UDO clearly states that it is the Planning Director’s purview to make these interpretations. I worked with three excellent Planning Directors who would draft their written interpretations and then share them with me for double-checking. I cannot recall a single Planning Director interpretation with which I disagreed during my time with the city. We had a cell tower case years ago in which opponents did not agree that a cell tower, made to look like a pine tree, met the UDO’s definition of a “concealed” cell tower. An official interpretation from the Planning Director was requested and issued. The opponents then proceeded to appeal the Planning Director’s interpretation that the tower did meet the UDO’s definition of “concealed” to the City’s Board of Adjustment, in Durham Superior Court, and then finally to the NC Court of Appeals. The Planning Director’s interpretation was upheld at each stage.

No. 3. Don’t Triangulate

I often found it surprising when outside folks seemed to think that City employees don’t communicate with each other. Not infrequently, I would get a phone call or an email from a developer or the developer’s attorney complaining about something a city department was doing or had done. I made it a habit to listen carefully to the complaint and to take careful notes, and then I would always say, “I will get back to you.” My next step was to always speak to all of the relevant city staff to understand the issue from their perspective. Sometimes this research would result in me saying, “I think we need to get staff and the applicant together to discuss the issue and attempt to reach a mutual understanding.” These meetings were usually very productive, and a path forward was found. However, sometimes, my research would lead me to believe that the outside party had misrepresented the facts or misstated what they had been told by city staff. In these instances, I would always think to myself, “doesn’t this party know that we city employees speak with each other?”

I once had a builder tell me and one of my colleagues that he had not created a tall unstable soil slope directly adjacent to a house he constructed. He said it to us in a convincing fashion, and I believed him. We went back to our Public Works inspectors however, and they were able to demonstrate the history of the slope with photographic evidence, and yes, the builder, or one of his contractors, did create the unstable slope. Saying something that is untrue is not going to be successful, and it impacts trust going forward.

No. 4. Be True to Your Word

This is a corollary to the anti-triangulation rule, but as an attorney, always be true to your word. The city brought an enforcement action against a property owner. The owner was asked to remove an obstacle from the city right of way by a specified deadline. The owner’s attorney asked the city for forbearance to a date certain on the enforcement action as his client, and he worked toward a method to remove the obstacle. As the initial deadline approached, he asked the city for a second extension, which was granted. He clearly stated to me that he was working with his client to remove the obstruction. As the final deadline was drawing near, rather than working toward the removal of the obstruction, the attorney sent me a document that he had recorded with the register of deeds office. I had previously officially objected to the document because it did not conform with NC statutory requirements, and his client was not entitled to record it. I was not a happy camper as I felt I had been deceived into granting the requested extensions to achieve one stated goal, and then the extensions were used to take action which was inconsistent with that goal. I shared my thoughts directly with the attorney and the partners in his firm. The questionable document was ultimately rescinded. Going forward, I gave this attorney and his clients the due process they were entitled to, but not much more.

 

Stay tuned for the next post in this series, which will be posted in Spring 2025.