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  • Consistently Inconsistent? Considering Consistency Statements for Zoning Amendments

    Authored by: on Monday, September 15th, 2014

    When the city council or county commission considers a rezoning or zoning ordinance amendment the board must approve a statement about the amendment’s consistency with adopted plans and public interest. According to the statute “[t]hat statement is not subject to judicial review.” And yet we have two recent examples of North Carolina courts reviewing consistency statements. What gives? This blog reviews the statutory requirements, the recent cases, and some guidance for moving forward.

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  • Meet the Granny Pod: New Zoning Protection for Temporary Family Health Care Structures

    Authored by: on Wednesday, September 10th, 2014

    Extended families residing together were commonplace in the early 20th century. In the 1920s most zoning ordinances allowed rooms in single family homes to be rented to boarders. It was also not uncommon at that time for single family homes to have an accessory dwelling unit. These came in a variety of settings – a basement, attic, or garage apartment, a “mother-in-law” suite, or, in larger homes, separate quarters for domestic help.

    Single-family zoning districts began to be made more restrictive after World War II. Charlotte’s 1951 zoning ordinance, for example, allowed accessory dwelling units in its “Residence 1” zoning district, but only for servants’ quarters in the rear yard. In language that conjures images from “The Help,” the Charlotte ordinance of that time expressly prohibited garage apartments for rent unless they were “occupied only by servants in the employ of the occupants of the main residence.” Over the following decades even this limited permitted use of accessory dwelling units in single-family zoning districts was eliminated in many cities and counties.

    In recent years there has been a renewed interest in permitting some accessory dwelling units in single-family neighborhoods. Advocates suggest more permissive regulations for accessory dwelling expand the range of housing choices, provide more affordable housing, facilitate aging-in-place, and allow modest increases in residential density while retaining the essential character of urban neighborhoods. Opponents worry about over-crowding, traffic, and impacts on neighborhood character and property values. Click here for a 2013 story on the Raleigh city council’s consideration of the issue and here for planning staff and planning board background information on that discussion.

    A new North Carolina statute may spark renewed attention to the general issue of accessory dwellings by mandating zoning approval for a limited and very specific type of accessory residence – a “temporary family health care structure.” Read more »

  • The FLSA’s Professional Exemption – Part 2: The Computer Professional

    Authored by: on Wednesday, September 10th, 2014

    This is the final post in my series about exemptions to the Fair Labor Standards Act’s requirement that employees be paid a premium time-and-one-half overtime wage for hours over 40 in a workweek. There are three types of exemptions: the executive exemption (discussed here), the administrative exemption (discussed here and here) and the professional exemption. The professional exemption has several distinct tests (not of all of which are relevant to local government). In my last blog post (here), I discussed the learned professional exemption in detail. In this post, I look at the exemption for computer professionals. Read more »

  • Expanded Solid Waste Fee Authority for Counties? Probably Not

    Authored by: on Monday, September 8th, 2014

    The General Assembly expanded the categories of allowable expenditures for a county’s solid waste fee proceeds in the 2014 technical corrections act, S.L. 2014-115 (HB 1133). Specifically, section 60 added a new provision to G.S. 153A-292 (section b1) that states that “the collection, disposal, and availability fees authorized by this section may be used to cover the cost of waste management programs in the jurisdiction, including the collection of waste and the collection of litter along public roadways.” The act did not lift the restrictions on charging solid waste fees, though, including the requirement in G.S. 153A-292(b) that the aggregate revenue generated by the collection, disposal, and availability fees not exceed the costs of providing the particular solid waste service for which the fees are assessed. This post discusses these two seemingly conflicting provisions and details what affect, if any, the new act has on a county’s solid waste fee authority. Read more »

  • Attorneys’ Fees For Acting Outside the Scope of Authority (G.S. 6-21.7)

    Authored by: on Friday, September 5th, 2014

    Litigation is a bit like going out to lunch, Dutch treat. The general rule is that each side pays its own attorneys’ fees and costs. State and federal laws, however, can change that rule, requiring the losing side to pay in certain types of cases. In 2011, the North Carolina legislature enacted G.S. 6-21.7, which allows a judge to award attorneys’ fees to the prevailing party in any action in which a city or county is a party if the judge finds that the city or county “acted outside the scope of its legal authority.” The award of attorneys’ fees is mandatory if the judge also finds that the city’s or county’s action was an abuse of its discretion. The court of appeals recently decided the first case interpreting G.S. 6-21.7. The decision provides helpful guidance to trial courts for determining when a city or county has abused its discretion, but it doesn’t directly address the scope of the statute generally. Read more »

  • When to Hold a Referendum: Restrictions and Limitations

    Authored by: on Wednesday, September 3rd, 2014

    The 2013 North Carolina General Assembly enacted numerous major election law changes—the introduction of a photo ID requirement to vote, the elimination of same-day registration and voting, the end of straight-ticket voting, and many others. There was a lot to talk about, and a lot of people did talk, including me here.

    One 2013 change, however, got little attention at the time. It is a significant limitation on when units of government may hold special elections, commonly referred to as referendums. And a further refinement added by the 2014 General Assembly will cause counties to feel a special bite. Read more »

  • “Tag and Tax Together” One Year Later

    Authored by: on Friday, August 29th, 2014

    Happy Birthday, Tag & Tax Together!  What, you haven’t bought a present yet? Well, you best get moving, because September 1 will mark the first birthday of the new taxation system for registered motor vehicles (“RMVs”) known informally as Tag & Tax Together.

    By now everyone driving a car on the highways and byways of North Carolina should have experienced paying their RMV taxes at the same time they renew the tags on their vehicles.  (Other than those gamblers who see how long they can drive with expired tags without getting pulled over by one of North Carolina’s finest, of course . . . )

    Over the past year I’ve blogged about how the new process works, about bankruptcy issues relating to RMVs, and about the counties’ obligations to distribute RMV tax receipts to their municipalities.  I’ve also published this bulletin on “gap billing” for vehicles that move between registered and unregistered status.

    Today I’m back with an update about the new system’s financial performance.  My report might surprise some readers—in a good way. Read more »