Receivership: A New Tool for Addressing Vacant Problem Properties in North Carolina

Municipalities across North Carolina have long employed code enforcement tools to address problem properties and abandoned structures. A prior blog post describes the code enforcement options for repair and maintenance of commercial buildings. A book on housing codes describes the code enforcement options for residential structures. A bulletin describes local government authority to carry out inspections of structures. To see how all of North Carolina’s code enforcement tools can come together in a strategic approach, read the report produced by the Center for Community Progress for the City of High Point. Now municipalities have an additional code enforcement tool at their disposal to address problem properties. Effective October 1, 2018,[1] House Bill 573 establishes receivership powers and authorizes North Carolina municipalities to request for a superior court to appoint a receiver to manage a vacant structure that has not complied with a code enforcement order. These vacant problem properties, whether residential or commercial, are deemed a “nuisance per se”—in other words, a nuisance in any context. This blog post provides an overview of the new receivership authority. Read more »

Public Employers Beware New Rule: Violate a Policy, Your Employee May Sue You

Every once in a while, the North Carolina appellate courts put forward a totally new interpretation of some aspect of the law of employment, an interpretation that has the potential to change the way employers act.

It happened in 1985

The Court of Appeals did that, for instance, in 1985 in Sides v. Duke Hospital, 74 N.C. App. 331, when it created something that had not existed before in North Carolina law—the tort of wrongful discharge.

A nurse at Duke Hospital claimed that she was dismissed in retaliation for testimony she had given in a medical malpractice lawsuit against Duke.  She claimed she was fired because her truthful testimony under oath had cost Duke money.  The superior court judge threw her case out, saying that she was alleging a tort—wrongful discharge—that simply did not exist in North Carolina.  Even if what she claimed was true, Duke could dismiss her for that reason if it wanted to.

The court of appeals, when the case reached it in 1985, for the first time recognized the wrongful discharge tort as an exception to employment at will.  To allow employers to punish their employees for testifying truthfully, the court said, would be “an affront to the integrity of our judicial system, an impediment to the constitutional mandate of the courts to administer justice fairly, and a violation of the right that all litigants in this State have to have their cases tried upon honest evidence fully given.”

So, the court said, “while there might be a right to terminate a contract [of employment] at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy.”

The “public policy” implicated in this case was the policy that every citizen should testify fully and truthfully at court.  The public policy exemption to the doctrine of employment at will was given birth and the tort of wrongful discharge is alive and active today.

It may have just happened again

It is possible that the North Carolina Supreme Court has done it again, in 2018.  It appears to have ruled that a public employee has a claim that the North Carolina Constitution is violated if (1) a public employer has a clear employment rule or policy, (2) the employer violates that rule or policy, and (3) the employee suffers an adverse consequence. Read more »

How to Approve Minutes and General Accounts of Closed Sessions

The North Carolina open meetings law requires public bodies to prepare minutes of all official meetings, and to prepare minutes and general accounts of closed sessions. G.S. 143-318.10(e).  Minutes and general accounts of closed sessions may be withheld from public inspection “so long as public inspection would frustrate the purpose of a closed session.” (For more about public access to closed session minutes, see my blog posts here and here.)  When the purpose of the closed session is not frustrated by public inspection, the closed session minutes and general accounts can be circulated to the members of the public body and approved at any open meeting. But when the purpose of the closed session would be frustrated and the minutes and general accounts are withheld from public inspection, it is often assumed that the minutes and general accounts can only be approved in a closed session. Not so. As described in this blog post, there are least three options for approving minutes and general accounts. Read more »

CRFs for SDFs (aka Capital Reserve Funds for System Development Fees)

Local governments and public authorities (collectively, local units) that own or operate water and sewer systems must implement the new system development fee schedule by July 1, 2018, in order to begin charging (or continue charging) certain upfront fees for new development. Units are now looking to put policies in place to administer those fees according to state law directives. The fee revenues are restricted to specific purposes, and they must be “accounted for by means of a capital reserve fund….” This blog briefly describes the new system development fee law and details the purposes for which system development fee proceeds may be expended. It then explains the purpose of, and process for creating, a capital reserve fund. Finally, it provides a sample capital reserve fund for system development fee proceeds. Read more »

Combining Multiple Property Tax Exclusions

In a North Carolina town, a long-vacant historic mill with environmental contamination has sat empty on the edge of downtown for years. The Town has taken action to see the property transformed. Town staff worked through a brownfields process to clear the major environmental problems associated with the property, and the Town engaged the UNC Development Finance Initiative (DFI) to evaluate the financial feasibility of private development on the site and to attract a developer. Now a developer has proposed an adaptive reuse of the historic building that aligns with the Town’s interests. The developer hopes to take advantage of property tax exemptions to make the project work financially and asks whether the property can benefit from both the brownfields exclusion in G.S. 105-277.13 and the historic property exclusion in G.S. 105-278.

In other words, can a single property and a single owner benefit from more than one property tax exclusion at a time?

Read more »

The State of the Dark Store Theory

Consider the following scenario: Target is challenging a city’s property tax valuation. The city has assessed the store at $16.7 million, while Target contends the tax value is closer to $8.1 million. In reaching this valuation, Target used sales comps from eight vacant big box retail establishments, and it wants the city to reduce its assessed value to reflect the market price of these unoccupied buildings. The city will lose a substantial amount of tax revenue if it accepts Target’s valuation. It must choose one of two options: settle with Target or endure costly litigation.

This scenario, known as the “dark store theory,” has taken center stage in numerous legal battles across the country. The key question: should fully operational big box retail stores be taxed in the same way as closed ones?

Read more »

Tips for Tax Foreclosure Sales

Carolina County is selling Parcel A at a tax foreclosure sale.  The county enters an opening bid of $4,500, the total taxes and costs owed on the property.  Happily for the county, two other bidders, Billy Blue Devil and Wanda Wolfpack, get into a heated competition for the property.  Billy Blue Devil is the eventual high bidder at $25,000.

What happens next? How much money does Billy need to pay at the auction? What if Billy fails to produce the full bid amount? What deposits are required of upset bidders?  What happens if an upset bidder defaults on the winning bid? Do the answers change if the foreclosure is “mortgage style” or in rem?

The relevant statutes don’t provide clear answers to all of these important questions. Read on for my suggested approaches and advice about best practices from tax foreclosure veterans . . . Read more »