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  • Sale of Historic Structures by NC Local Governments for Redevelopment

    Authored by: on Tuesday, December 16th, 2014

    Almost ten years ago, in the town of Bushwood, North Carolina, the “generous” owner of the historic textile mill building just off Main Street donated the property to the town (it was difficult to maintain and the owner didn’t want to pay property taxes on it any more). The town accepted the property, hoping that it would be able to find a new private owner who would redevelop the property and retain the historic character of the building. Some potential buyers have kicked the tires on the building, but no one has made an offer. Due to the value of the land and the excellent location of the parcel, the property appraises for $300,000.

    The town recognizes that it needs to market the building more actively—and that it may need the help of experts. “Old Mills R Us,” a regional historic preservation nonprofit with a mission to preserve historic mill buildings, has a proposal for the town:

  • The town will sell the mill to the nonprofit for one dollar.
  • Old Mills R Us (OMRU) will market the property and sell the mill to a private developer who will redevelop the property while retaining the historic features.
  • Rather than charging a broker fee, OMRU will simply keep the proceeds from the sale at whatever price OMRU can get.
  • Can the town enter into this transaction with OMRU? Short answer: not on these terms. This post explains why and suggests some alternatives. Read more »

  • Three-judge Panels

    Authored by: on Friday, December 12th, 2014

    Two recent lawsuits have drawn attention as the first to be subject to a new state law treating some constitutional challenges differently from other lawsuits. The first case was brought by the town of Boone, seeking to invalidate a legislative act stripping the town of its extra-territorial jurisdiction. Governor McCrory filed the second lawsuit, disputing the General Assembly’s authority to control the membership of regulatory commissions. Instead of being tried before a single judge, these cases will go before panels of three judges.

    Why do these cases, and not others, have to go to three-judge panels? Read more »

  • Deductions for the Cost of Training under the FLSA

    Authored by: on Wednesday, December 10th, 2014

    Few things are as aggravating to local government employers as paying for the cost of an expensive training program only to have the employee leave immediately to go to work for another local government employer. The new employer gets the benefit of the training for which the old employer paid. Small and rural cities and counties commonly suffer this loss among their entry-level law enforcement and firefighter ranks. Can local governments recoup the cost of training from employees who leave soon afterward? It seems only fair. But is it lawful? Read more »

  • Can We Close That Old Street Right-of-Way?

    Authored by: on Monday, December 8th, 2014

    Decades ago, a landowner recorded a plat to divide his tract of land into lots and streets. The lots were sold and developed with houses. Most of the streets were constructed and opened as public streets. But there is an undersized and un-used alley running behind a block of houses. And, across the side of one large lot, there is a portion of street right-of-way that was never constructed and is not needed for access. Can the town close these old rights-of-way? Can the property owners?

    This blog explores the rights and procedures involved in closing easements and rights-of-way.

    Read more »

  • Property Taxes and New Year’s Day

    Authored by: on Thursday, December 4th, 2014

    New Year’s Day is best known for hangovers and college football bowl games. But among North Carolina property tax professionals, January 1 means even more than the Famous Idaho Potato Bowl (yes, that’s an actual game.)

    January 1 is listing day, the date on which we take a virtual snapshot of a property’s ownership, value, situs, and use (which affects eligibility for exemptions and exclusions). The determinations made as of January 1 control how that property will be taxed (or not) during the coming fiscal year that begins on July 1.  G.S. 105-285.

    The January 1 listing date is the basis for a key principle of North Carolina property taxes:

    If property is taxable in a particular jurisdiction as of January 1, it will be taxable by that jurisdiction for the entire fiscal year regardless of whether the property is subsequently destroyed, moved, sold, or used for a different purpose. Read more »

  • Polling the Board

    Authored by: on Wednesday, December 3rd, 2014

    Consider three scenarios involving polling an elected governing board:

    1. The city manager has determined that it is time for new leadership in the HR department. She contacts each of the council members to find out if they approve firing the HR director.

    2. The chair of the county commissioners has negotiated a good price on a new contract for EMS services. She contacts each board member to see if they approve the contract.

    3. A city council member plans to propose a revision to the zoning ordinance and contacts each of the council members to explain the proposal and get a sense of whether they approve it, or what changes they’d like to see before it is introduced.

    Do these actions violate the open meetings law? Is it illegal to poll the board?

    Read more »

  • Governmental Immunity for Activities Designated by Statute as Governmental Functions?

    Authored by: on Tuesday, December 2nd, 2014

    The doctrine of governmental immunity shields cities and counties from financial liability for tort claims arising from the performance of governmental functions. (A “tort” is wrongful conduct, such as negligence or assault, for which a victim may be able to recover money damages in a lawsuit.) When tort claims stem from proprietary functions, however, the local government is generally liable to the same degree as a private company. As I explained in a previous blog post, the North Carolina Supreme Court in Williams v. Pasquotank County, 366 N.C. 195 (2012), formulated a three-part test for determining whether an activity counts as a governmental or proprietary function in the governmental immunity context. The first part of the Williams test requires a judge to examine whether the General Assembly has classified the specific activity that led to the plaintiff’s damages as governmental or proprietary. The Williams opinion indicates that, when the legislature has made such a designation, there is ordinarily no need to apply the other two parts of the test. Deference to the legislature should be the norm.

    I have been asked whether Williams effectively overrules Rhodes v. City of Asheville, 230 N.C. 134 (1949), an old governmental immunity case in which the supreme court didn’t defer to the legislature. In Rhodes the court held that the operation of a municipal airport is a proprietary function, even though a statute declared the activity to be a governmental undertaking. While they might seem to be at odds, Rhodes and Williams actually complement one another. Read together, they tell us how a court should evaluate whether the legislature’s designation of an activity as a governmental function triggers the protections of governmental immunity. The two cases establish that, among other things, the reason for the designation and the breadth of the activity defined as governmental are relevant to a court’s immunity analysis. Read more »