Recent Blog Posts
King v. Town of Chapel Hill: The Supreme Court Issues a Major Decision on the Police Power of Local Governments (Part 2)Authored by: Trey Allen on Tuesday, July 22nd, 2014
In my last blog post I listed and discussed seven points that local governments should take away from King v. Town of Chapel Hill, perhaps the North Carolina Supreme Court’s most significant decision yet on the general police power of local governments. Part 1 of my analysis focused primarily on the portions of King that uphold the broad exercise of regulatory powers by cities and counties. As I noted, however, King also has much to say, both directly and indirectly, about constitutional and statutory limitations on the police power. This blog post picks up where my last one left off and offers five additional takeaways from King. Read more »
Authored by: Chris McLaughlin on Monday, July 21st, 2014
If you could change one provision in the Machinery Act, which would it be? Near the top of my list would be standardizing the deadline for property tax appeals to county boards of equalization and review (“BOERs”).
The Machinery Act generally succeeds at creating a transparent, consistent system of taxation. Sadly the deadline for appeals to the BOER is neither transparent nor consistent, a situation that leads to taxpayer confusion and complaints. It also led to a recent Court of Appeals ruling on a dispute over the timeliness of a Guilford County taxpayer’s BOER appeal.
This blog post describes the current law, explains the Court of Appeals decision, and offers a simple statutory solution. Read more »
Authored by: Diane Juffras on Friday, July 18th, 2014
In previous blog posts, I discussed the executive and administrative exemptions to the Fair Labor Standards Act rule that an employee is entitled to overtime pay after working 40 hours in a week. When an exemption applies, the position is said to be “exempt” and the employee is not entitled to overtime pay even at 60 or 80 hours worked in a week. Whether a position is exempt under the executive duties test or the administrative duties test, it must satisfy the following requirements:
- the position must be paid on a salary basis; and
- the position is must be paid a minimum of $455 per week.
The executive duties test evaluates whether the position is a management position with significant authority over other employees. The administrative duties test evaluates whether the position is an office position that supports management and has significant decision making authority in areas other than supervision of employees. To satisfy the administrative duties test, a position must meet an additional two requirements. The position must also:
- have a primary duty of office or nonmanual work directly related to management or general business operations of the employer, and
- perform work requiring the exercise of discretion and independent judgment on matters of significance to the employer.
As I noted in my earlier blog post on the administrative duties test, these two requirements are anything but straightforward. In this blog post, I’ll continue the discussion of the administrative duties test by taking a close look at some examples.
Read more »
Authored by: Adam Lovelady on Wednesday, July 16th, 2014
A decision about a rezoning request is legislative. A review of an application for a special use permit or variance is quasi-judicial. But what about the preliminary plat review? What type of decision is it: administrative, quasi-judicial, or legislative? What is the process for review? And what are the rules for appeal? This blog explores the nature of subdivision plat approvals. Read more »
Authored by: Kara Millonzi on Friday, July 11th, 2014
The United States Constitution includes many provisions that protect persons and entities from government action. For example, the Due Process Clause (Fifth and Fourteenth Amendments) safeguards against arbitrary denial of life, liberty, or property by the government. The Equal Protection Clause (Fourteenth Amendment), prohibits the state from denying any person within its jurisdiction the equal protection of the laws. And the Contract Clause (Article I, section 10, clause 1) prohibits the state from enacting any law that retroactively impairs contract rights.
But do these Constitutional protections extend to local governments? Does the Due Process Clause, for example, require that a state legislature provide notice and an opportunity to be heard to a local government before deannexing property within the local unit’s territorial jurisdiction? Or does the Contracts Clause prohibit the state from requiring that a local government utility cease providing service in a particular area, over the objection of local officials? As my colleague, David Lawrence, explains in a recent Local Government Law Bulletin, Judicial Doctrines that Differentiate Local Governments and Private Persons or Entities, the answer is no. Read more »
Authored by: Frayda Bluestein on Wednesday, July 9th, 2014
The Robertsville town council recently adopted three new voting rules:
Rule #1: A motion to add an item to the agenda during a council meeting must be approved by a vote of 4/5 of the members present.
Rule #2: A final decision on a contract to hire a manager must be approved by a vote of 4/5 of all the members of the council.
Rule #3: Final recommendations and decisions of all appointed boards must be approved by a vote of 2/3 of all the members of the appointed board.
At the time of their adoption, everyone agreed that these rules made sense as a way of promoting consensus and efficiency in meetings. It was not long, however, before members became frustrated with rigid adherence to the supermajority requirements. The mayor and board chairs started to find excuses to make exceptions, but some board members are concerned that decisions may be invalid if the rules are not followed. Did the council have authority to adopt these rules? Are they are binding on the council and appointed boards? What is the procedure for suspending, modifying, or repealing them?
Authored by: David Owens on Tuesday, July 8th, 2014
The town council has just voted to approve a highly controversial special use permit for a new apartment complex. Getting to this point was a long process – two lengthy hearings and a third night of debate and deliberation by the council. There was much discussion about the traffic impacts, whether the evidence showed whether the project would harm neighboring property values, and the adequacy of potential permit conditions. But the council eventually reached a general consensus and voted 6-1 to approve the permit with a long list of detailed conditions. With business concluded, the council meeting was adjourned.
As folks were filing out of the council chambers, the property owner turns to his attorney. “It seemed like this day would never come. Can’t tell you how relieved I am they finally saw things our way. I’m good to go now, right?” In another corner of the room, the chair of the neighborhood association, who had led the fight against the project, likewise turned to her attorney. “What just happened? They left out the most important condition we asked for. No way the evidence justifies that. We appeal now, right?”
Both attorneys tell their clients to sit tight and wait for the final decision. Is that right? Didn’t the council just take a conclusive vote? Isn’t that final?
Not quite. The decision is not final and effective until it is reduced to writing and filed. And the period to appeal doesn’t start until the written decision is delivered. Read more »