Recent Blog Posts

  • Reimbursement Agreements

    Authored by: on Tuesday, January 19th, 2016

    A developer in town is seeking approval for a large new real estate project. The zoning and subdivision ordinances call for the developer to construct and dedicate public streets and parks and water infrastructure. But, the city has plans for some additional improvements adjacent to the development—a greenway on adjoining property and some intersection improvements nearby. The developer’s contractors will already be on site, grading land and constructing improvements. Could the city just pay the developer to build the city’s improvements, too?

    The answer is yes. But, of course, there are limits and procedural requirements. Cities and counties may enter into agreements for certain improvements—beyond those required as part of the development approval—to be made by a developer. The General Statutes include overlapping authority for contracting for public enterprise improvements, roadway improvements (cities only), as well as general reimbursement agreements. This blog outlines the basics of those overlapping authorities. Read more »

  • The “Government Speech” Doctrine and Local Government Meetings: Can the Government Take Sides?

    Authored by: on Friday, January 15th, 2016

    Hydraulic fracturing (“fracking”) may be coming to Pleasantville. The community is deeply divided about it. A majority of the town council strongly favors this opportunity to bring jobs to the area. The board has met with representatives from Extraction Services, Inc. and has reserved time on this month’s regular meeting agenda for a presentation by the company. The company will use this opportunity to advocate against the adoption of restrictions that might increase the cost of their operations. A community group has organized to advocate for legislation authorizing the town to regulate and restrict fracking operations. One of the council members is a member of the anti-fracking group. She thinks that the council should give the opponents equal time on the agenda.

    Does the council have any legal obligation to provide time on the agenda for other points of view? Probably not. First Amendment cases have long held that when a forum exists for public expression, the government cannot engage in viewpoint discrimination. It can establish viewpoint neutral rules about where, when, and how the public can speak, but it cannot promote or discriminate against a particular point of view. The developing case law regarding “government speech” recognizes the government’s ability, in certain situations, to take sides. This post explores how the government speech analysis might apply to local government meetings and hearings in North Carolina. Read more »

  • Advisory Board Review of Quasi-judicial Decisions

    Authored by: on Tuesday, January 12th, 2016

    Acme Development Co. is proposing to build a 200-unit apartment project on a vacant lot. Under the city’s zoning ordinance, this use of the site is allowed only if a special use permit is secured.  The ordinance standards for the special use permit set out a variety of technical requirements and require the applicant to show the proposed use will be harmonious with the surrounding neighborhood and that it will not have significant adverse impacts on neighboring property values.  Under the ordinance, the decision on this application will be made by the city council following a formal evidentiary hearing.

    This will be a controversial project. The applicant has hired capable consultants who are sure all of the city standards can be met.  On the other hand, residents of the neighboring single-family neighborhood have already raised concerns about traffic, congestion, noise, storm water runoff, and other negative impacts of the character of their neighborhood.

    Before the city council takes up Acme’s special use permit application, should it be sent to the planning board for review and comment? Read more »

  • Discoveries, Deferred Taxes, and the New Year

    Authored by: on Thursday, January 7th, 2016

    One of the most basic yet most misunderstood facets of North Carolina property taxes is the year for which those taxes are levied.  Contrary to popular belief, property taxes are not levied for the calendar year.  All local governments are required to budget and finance their operations on the basis of a fiscal year that runs from July 1 to June 30.

    So why is it that so many property tax actions are tied to the start of the calendar year?  I’ve blogged before about the importance of January 1 for determining taxability and about how record ownership as of January 6 determines personal liability for delinquent taxes on real property.  Today I focus on two more property tax determinations that turn on January 1: the billing of discoveries and deferred taxes.  Read more »

  • The New Law Addressing Child Maltreatment in Child Care Facilities: It’s the State’s Responsibility

    Authored by: on Wednesday, January 6th, 2016

    It seems fitting that my first blog post of the 2016 calendar year addresses a new law that became effective on January 1st. S.L. 2015-123 is “An Act to Transition Abuse and Neglect Investigations in Child Care Facilities to the Division of Child Development and Early Education [DCDEE] within the Department of Health and Human Services” (DHHS). In a nutshell, county child welfare agencies (county departments) retain responsibility for screening and assessing reports of suspected child abuse, neglect, and dependency by a parent, guardian, custodian, or caretaker but are no longer responsible for screening and assessing reports of suspected abuse and neglect of a child in a child care facility. As a result, petitions filed in district court by a county department that allege a child has been abused or neglected will no longer be based on circumstances created in a child care facility. Instead, the DCDEE has assumed responsibility for investigating suspected child maltreatment occurring in a child care facility. These investigations are a component of DCDEE’s licensure procedures and requirements. S.L. 2015-123 sets forth the new process in Article 7 of G.S. Chapter 110.
    Read more »

  • What if No Candidates File? An Election without Candidates?

    Authored by: on Tuesday, January 5th, 2016

    There is an open seat—District 2—on the board of county commissioners, up for election.  It will be voted on in November, along with other county offices (like sheriff and school board), district offices (like state senate and district attorney), and statewide offices (like governor and commissioner of labor).  The candidate filing period has come and gone, and Republican candidates have filed their notices of candidacy to run in the Republican primary and Democratic candidates have filed their notices of candidacy to run in the Democratic primary, for all the offices at the county, district, and statewide levels.

    Except one.  No Republican candidate filed to run for the District 2 seat on the board of county commissioners.  No Democratic candidate filed.  What happens now? Read more »

  • May a Tourism Development Authority (TDA) Borrow Money?

    Authored by: on Monday, December 21st, 2015

    A Tourism Development Authority (TDA) is a local government entity that is typically created by a county or municipality to administer and expend local occupancy tax proceeds. Generally a TDA is a separate legal entity from the county or municipality that established it, although it may be reported as a component unit of the local government for financial reporting purposes. A TDA is categorized as a public authority for purposes of the Local Government Budget and Fiscal Control Act (G.S. Ch. 159, Art. 3).

    There is no general law authority for a county or municipality to levy occupancy taxes or to establish a TDA. Instead, this authority is set out in well over 100 local acts that each apply to one or a few jurisdictions. There has been significant standardization of the local acts authorizing local governments to levy occupancy taxes and establish TDAs over the past ten to fifteen years. In most cases, a county or municipality must establish a TDA and remit all, or a large portion of, the net proceeds of the occupancy tax as a condition of levying the tax. The TDA’s governing board administers the tax proceeds and makes funding decisions, subject to any statutory restrictions in the local act. A common restriction is that the money be spent to promote tourism and development within the unit’s territorial boundaries.

    Despite the standardization efforts, there are still significant variations in the authorizing language across jurisdictions. It is thus difficult to give general guidance on the function or operation of TDAs. The answers to most questions about a TDA’s board structure, and the contours of its expenditure authority, are found only in the local act that authorized its creation. There are a few questions, however, that can be addressed more generally. One of these questions is whether a TDA may borrow money? The answer to this question is no. There is a way that a TDA can become indirectly involved in a borrowing transaction, though. Read on to learn more about this issue.  Read more »