Recent Blog Posts

  • HB 2 is Repealed: What Must North Carolina Units of Government Do Now?

    Authored by: on Wednesday, April 12th, 2017

    North Carolina’s well-known, and now repealed, House Bill 2 required that all multiple-person bathrooms in government buildings be “designated” for use by persons based on their biological sex (as shown on their birth certificates) and that those bathrooms be “only used” by persons based on their biological sex.

    It was never completely clear just what obligations fell to units of government to meet the “only used” requirement.  That left cities and counties and schools a little uncertain as to what to do.

    Moreover, positive steps to meet the “only used” requirement could bring units of government up against potentially competing requirements of federal anti-discrimination law, especially under Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972.  In very recent years, the federal agencies enforcing those statutes, and to some extent the courts, have embraced interpretations that extended the statutory protections to individuals whose gender identity might not match their biological sex.

    State Law Repeal and Federal Law Development

    Now, HB 2 is repealed and has been replaced with HB 142.  With that repeal, the bathroom requirements are no longer in the law.  Laws that were in place before HB 2 are revived, as described in Norma Houston’s blog post here.  The obligations that HB 2 imposed, however, have been replaced with new prohibitions.

    At the same time, the federal law under Title VII has appeared to expand protections for employees against discrimination on the basis of gender, while the federal law under Title IX has retreated.

    Just as it was never clear under HB 2 exactly what units of local government should do to meet both state and federal obligations, it is now also not clear under the new HB 142 just what units of government must do to meet the prohibitions. Read more »

  • May a City Mow an Overgrown Lot without a Court Order?

    Authored by: on Monday, April 10th, 2017

    The Town of Manicure has been working hard to revitalize the historic neighborhood adjacent to downtown. As part of the effort to improve conditions in this and other neighborhoods, the town has been more vigilant in enforcing its overgrown lot ordinance, which prohibits property owners from allowing grass and weeds to grow above 18 inches in height. Whenever the town’s inspection department verifies that grass and weeds on property located within the corporate limits are more than 18 inches high, the owner receives a citation informing her that, if she doesn’t bring the lot into compliance within 15 calendar days, town employees will mow the lot and bill the owner for the cost of corrective action.  The town routinely follows through on such warnings without first obtaining a court order authorizing the action taken.

    May the town mow a noncompliant lot without first obtaining an order of abatement from the appropriate court? Read more »

  • HB2 Reset Beyond Bathrooms . . . Local Government Contracting Limitations Repealed

    Authored by: on Thursday, March 30th, 2017

    Earlier today the General Assembly passed H142 (S.L. 2017-4), Reset of S.L. 2016 repealing HB2 (S.L. 2016-3), the Public Facilities Privacy and Security Act, which was enacted during a special session held in March 2016.  In repealing HB2, H142 enacts a new statute preempting state agency and local governments from regulating access to multiple occupancy restrooms, showers, or changing facilities except to the extent authorized by the General Assembly.  H142 also imposes a moratorium on local government ordinances regulating private employment practices and public accommodations. The moratorium expires on December 1, 2020.

    While HB2 is perhaps best known for its regulation of bathrooms, it also placed limits on the contracting authority of cities and counties.  This post addresses the impact of HB2’s repeal on these contracting restrictions.  The repeal brings back to life the earlier versions of these restrictions, but the new moratorium overrides some of the authority that would have been available under the pre-HB2 version of the statutes. Read more »

  • The Guardian’s Role in Health Care Decision-making

    Authored by: on Tuesday, March 28th, 2017

    A county director of social services may be appointed to serve as guardian for an adult who has been adjudicated incompetent by a clerk of superior court. Making decisions about health care, particularly end of life care, is often one of the most challenging issues a guardian may face. Sometimes, prior to being adjudicated incompetent, the adult may have expressed his or her wishes regarding some of these critical decisions. The adult may have discussed his or her wishes with family, friends or a doctor or possibly executed a health care power of attorney or living will. After the DSS director has been appointed guardian, what happens to those legal documents? How do they impact the DSS director’s authority and role as guardian?

    Please note that this blog post is not intended to provide a comprehensive overview of end of life decision-making. Rather, the purpose is to help DSS directors who serve as guardians understand their responsibilities and the legal hierarchy of decision-making during these difficult times.

    Read more »

  • What is the “special character” of the historic district?

    Authored by: on Thursday, March 23rd, 2017

    After a city or county establishes a historic district or historic landmark, the local historic preservation commission is authorized to prevent certain changes that “would be incongruous with the special character of the landmark or district.”  But, what is the special character? And what is incongruous with it?  This blog reviews applicable laws and cases to outline the procedural requirements for establishing the special character (through formal report, ordinance description, and design guidelines) and subsequently determining whether a particular change is incongruous (through a quasi-judicial evidentiary hearing). Read more »

  • Periodic Inspections, Permits, and Registration of Residential Rental Property: Changes in 2017

    Authored by: on Wednesday, March 22nd, 2017

    Local governments establish residential rental property inspection, permit, and registration (IPR) programs to ensure that residential rental properties within their jurisdictions are maintained in a safe and decent condition. In recent years, the General Assembly has sought to protect code-compliant landlords from what legislators perceived as overly zealous IPR programs. The most recent legislation in this area, Session Law 2016-122, became effective on January 1, 2017, and is explained in Community and Economic Development bulletin #9. This blog post offers some highlights from the new law. CED Bulletin #9 should be consulted for more detail. Read more »

  • What Does It Mean to be Charitable?

    Authored by: on Monday, March 20th, 2017

    Last year I blogged about the increasing willingness of local governments to push back against charitable property tax exemptions for non-profit organizations.  Two recent law review articles demonstrate that this trend continues to gather steam. Although the articles involve different types of non-profits and different types of property, they both focus on the same key property tax exemption question: What does it mean to be “charitable?” Read more »