Can a Group Home be Zoned Out of the Neighborhood?

May 15, 2012
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Most zoning ordinances have residential zoning districts. One of these is usually a district where the primary permitted land use is single family detached housing. Multifamily housing and group living arrangements (as well as commercial and industrial land uses) are usually not allowed in these zoning districts.

Use of these zoning districts presents the question of where to draw the boundary between a “single family” residence and a “group” residence. This question is particularly important in determining how to treat small group homes for persons with disabilities, facilities that are designed to provide housing, personal care, and habilitation services in the quiet residential setting of a single family zoning district.

Suppose a zoning ordinance provides that no more than four unrelated individuals are allowed to reside in a “single family” home. Group homes, health care, and institutional uses are allowed in other zoning districts, but not in this district. Under this wording, which of the following group homes would be allowed to locate in that zoning district, assuming they secure the necessary social service license?

  1. A regional mental health support organization owns a single-family ranch house. They use it to house six adults with moderate developmental disabilities, providing a structured living environment with a resident manager.
  2. A local church owns a large Victorian home. They are using it as a group home for six teenage girls. They provide a safe living environment, counseling, remedial education, and other services for teenagers who have dropped out of school or been convicted of a criminal offense that did not result in incarceration.
  3. A national nonprofit organization owns a large home and uses it for a residential program for persons recovering from substance abuse. The organization has a zero tolerance policy for substance abuse by the residents. There are nightly counseling sessions held in the home. The home currently has twelve residents.
  4. A for-profit company provides residential treatment for emotionally disturbed teenage boys. The company is using a home to house six boys who have been diagnosed as emotionally disturbed. The home houses six of these boys and it just began operation across the street from the group home described in example one above. Read more »

Bateman v. Perdue: Implications for Gun Restrictions During a State of Emergency

May 13, 2012
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On March 29, 2012, Senior U.S. District Judge Malcolm Howard ruled on the 2nd Amendment challenges brought against restrictions on dangerous weapons that can be imposed during a declared state of emergency under North Carolina law.  The statutes at issue in the case, Bateman v. Perdue (No. 5:10-CV-265-H (E.D.N.C. filed Mar. 29, 2012) make it a Class 1 misdemeanor for a person to “transport or possess off his own premises any dangerous weapon or substance in any area in which a declared state of emergency exists or within the immediate vicinity of which a riot is occurring;” (G.S. 14-288.7) and authorize the governor and city and county officials to impose restrictions on the “possession, transportation, sale, purchase, storage, and use of dangerous weapons and substances, and gasoline” during a declared state of emergency. (G.S. 14-288.12(b), 14-288.13(b), 14-288.14(a), and G.S. 14-288.15(d)).

The plaintiffs in the case asserted that gun restrictions imposed under these statutes during declared states of emergency denied them of their 2nd Amendment right to keep and bear arms for lawful purposes, including self-defense.  Judge Howard ruled that these statutes were unconstitutional as applied to the plaintiffs, but did not go so far as to strike down the statutes entirely. The state chose not to appeal the decision, so Judge Howard’s ruling is now the final word in North Carolina.  So, what does this mean for local governments?

Read more »

Local Government Authority to Loan Money

May 10, 2012
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It is quiz time again. Which of the following (if any) loan transactions are authorized under North Carolina general law?

a.   A group of citizens has formed a softball league. The local league plans to host a large softball tournament as a fundraiser to support its activities. It lacks the resources to front the costs of the tournament, though. The citizens approach the city council for a $5,000 loan. They intend to repay the city from proceeds generated by the tournament.

b.   A local ABC board wishes to make some capital improvements to one of its stores. The ABC board approaches the town in which it is located for a $25,000 loan to help fund the capital project. The ABC board promises to repay the loan, with interest, within one year.

c.   Due to short-term cash flow issues, an area mental health authority requests that each of the counties in which it is located loan the authority $75,000 to fund its operating expenses. The authority intends to repay the funds to the counties within the next several months. Read more »

Tax Day at the N.C. Court of Appeals (Part 2)

May 4, 2012
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The Court of Appeals issued two opinions dealing with local taxes this week. In yesterday’s post I analyzed the opinion concerning Fayetteville’s privilege license taxes on internet sweepstakes.  Today I analyze the opinion dealing with the denial of a property tax exemption application by Cabarrus County.

Late Property Tax Exemption Applications

The Machinery Act requires that most exemption and exclusion applications be submitted before the end of the listing period, which is usually January 31.  GS 105-282.1 But that same statute allows counties to accept late applications through the end of the calendar year “upon a showing of good cause” by the applicant.

The term “good cause” is not defined, however, meaning that counties had a good bit of discretion when it came time to decide which late applications they accept and which they reject.  Thanks to this week’s Court of Appeals decision, that discretion is now limited. Read more »

Tax Day at the N.C. Court of Appeals (Part 1)

May 3, 2012
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The N.C. Court of Appeals celebrated tax day a few weeks later than the rest of us: on Tuesday, the judges released two interesting decisions involving local taxes. One concerned internet sweepstakes privilege license taxes levied by Fayetteville, the other focused on the denial of a property tax exemption by Cabarrus County. Although both opinions include long discussions of procedural issues that only a first-year law student could love, they both also offer some important substantive lessons.

The Fayetteville case provides some long-awaited guidance on how we can determine whether a particular privilege license tax is unconstitutionally too high. The Cabarrus County case teaches us that counties need to be careful when rejecting late property tax exemption applications.

My analysis of the Fayetteville case is below. Tomorrow I’ll post again with my analysis of the Cabarrus County case. Read more »

North Carolina’s Four (Yes, Four) Political Parties

May 1, 2012
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No doubt you can name the two biggest political parties officially recognized in North Carolina: just over 2.73 million Tar Heel voters have registered to vote as Democrats and just under 2 million as Republicans. And you may be able to name the third, the Libertarian Party, with its 14,000 members. But what’s that fourth party? Read more »

Outsourcing Local Government Communications: Implications of the Federal Stored Communications Act

April 26, 2012
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In August 2011, the City of HighTech contracted with an external SaaS (software as a service) provider to host its e-mail system. The basic parameters of the contract require the SaaS provider to furnish e-mail service to all city employees and officials. City employees and officials access the e-mail system through a web-based portal from any computer or device with an internet connection. Each user may manage her e-mails by keeping them in her inbox or moving them to one or more file folders set up in the e-mail system. There is no option to download the e-mails to a user’s computing device or to the city’s IT system. However, a user may copy and paste the substance of the e-mails into word processing files and save them to her hard-drive or the city’s IT system.

According to the provisions of the contract, the SaaS provider will store any unopened e-mails and opened e-mails that are not deleted by the user indefinitely on its active system. If a user deletes an e-mail, it is retrievable for a period of 30 days, after which it is permanently deleted from the SaaS provider’s system. The SaaS provider does not maintain a back-up or “archive” copy of any of the e-mails.

The city manager has instructed all employees and officials to “store” any e-mails that contain substantive information that must be retained according to the state’s public records law in appropriate file folders (labeled according to subject matter) in the e-mail system. None of these records are available on the city’s IT system.

The city manager recently received a public records request for copies of all e-mails sent or received by Emme Bezzler, a former city clerk, during the six month period from September 1, 2011 through March 1, 2011. Emme was fired by the city for cause on March 1, 2011. She since has fled the state in fear of criminal prosecution.

Before her termination, the city failed to verify whether or not Emme retained any records in her e-mail folders that might be subject to public access and/or subject to retention requirements under the State’s public records law. (Emme did not save the content of any of the e-mails as word processing files on the city’s IT system.) The only way to determine if records exist that are responsive to the public records request is to access Emme’s e-mail account. Unfortunately, the city failed to obtain Emme’s password for her city e-mail account before she skipped town. Instead, the city requests that the SaaS provider give the city access to Emme’s stored e-mails or provide the city with a copy of the e-mails. The SaaS provider refuses, claiming that federal law prohibits it from disclosing the contents of the e-mails in Emme’s account to the city, even though the city is the subscriber to the e-mail service.

The SaaS provider likely is correct. The federal law at issue is the Stored Communications Act (SCA) and it restricts access to certain electronically stored information by third-party providers, even in the circumstances described above. Read more »

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