Recent Blog Posts

  • Coates’ Canons Turns 5

    Authored by: on Saturday, August 9th, 2014

    Coates’ Canons celebrated its five year anniversary this week! During the past five years, School of Government faculty members have authored over 680 posts, which have been viewed well over 1,000,000 times. We continually strive to improve the blog and appreciate your valuable feedback. We have made several recent changes based on your suggestions:

    • All archived posts are now grouped by both category and subcategory. The categories are listed on the right hand side of the blog. To access the subcategories under each category, click on the [+]. To view the posts within each subcategory, simply click on the subcategory. The number of posts within each category and subcategory are included in parenthesis.
    • The general search function is more robust. If you are searching for a blog post on a particular subject matter, simply type one or more key words in the search box in the upper right corner. A list of posts that contain that word or phrase will appear in the main window.
    • The blog now includes a “featured posts” section. Periodically we will highlight a new group of archived posts on a related topic. We will use this section to create resource guides for courses and to provide ready information on relevant issues during the year.

    Thank you for your continued support of Coates’ Canons! Keep the suggestions coming…

  • Do North Carolina Local Governments Have Authority to Assess Impact Fees for Water and Sewer Public Enterprises?

    Authored by: on Thursday, August 7th, 2014

    An impact fee is a charge on new development to pay for the construction or expansion of off-site capital improvements that are necessitated by and/or benefit the new development. A local government typically assesses impact fees as part of its development approval process. Paying the fees is often a condition of receiving a building permit or certificate of occupancy.

    North Carolina local governments have specific statutory authority to require subdivision developers to pay fees in lieu for certain road and recreational land infrastructure projects that benefit the new development. See G.S. 160A-372 (municipalities); G.S. 153A-331 (counties). There is no specific authority to charge impact fees under general law, though. (A handful of units have local act authority to assess impact fees for certain purposes.) And North Carolina courts have repeatedly refused to hold that impact fee authority is implied from a unit’s regulatory powers, at least when the revenues are used to fund general government infrastructure. See, e.g., Lanvale Properties, LLC v. County of Cabarrus, 366 N.C. 142 (2012); Union Land Owners Ass’n v. County of Union, 201 N.C. App. 374 (2009), disc. rev. den’d, 364 N.C. 442 (2010); Amward Homes, Inc. v. Town of Cary, 206 N.C. App. 38 (2010), aff’d by an equally divided court, 365 N.C. 305 (2011).

    But what about the authority to impose impact fees on new development to fund a unit’s public enterprise (water or sewer) systems? Relying on a federal district court case from the late 1980’s, most local governments have assumed that there is implied authority under the public enterprise fee statutes (G.S. 160A-314 and G.S. 153A-277) to assess impact fees to mitigate against the impact of the new development on the unit’s water or sewer systems. This reliance may be misplaced, though. There are several reasons to question the continued validity of the court’s holding in that case and, correspondingly, to question the authority to impose impact fees to fund water and sewer capital outlay.

    This blog post analyzes the federal district court case and discusses why it may not reflect current law. It then details the framework a North Carolina court likely would use to analyze this issue today. Read more »

  • Election Day Voting vs. Early Voting in North Carolina

    Authored by: on Tuesday, August 5th, 2014

    There are two distinct ways to cast your ballot in person in North Carolina. The first is traditional election-day voting at your assigned precinct polling place. The other is what has commonly come to be called early voting at one of several sites established around your county. For a little history of early voting, click here.

    How Early Voting is Different From Election Day Voting

    Early voting has become extremely popular in North Carolina. In the presidential election in 2012, for example, 56.3% of voters cast their ballots at an early voting site. To the voter, the process of voting at an early voting site feels very much like the process of voting at the voter’s assigned precinct on election day. But there are some substantial differences. Read more »

  • Regulating Electronic Cigarettes in North Carolina, Part 2: Local Regulation

    Authored by: on Friday, August 1st, 2014

    This is the second of two posts on the regulation of electronic cigarettes and other vapor products in North Carolina. Part 1 addressed federal and state regulation. Now it’s time to talk about local regulation.

    This post focuses specifically on the authority of city or county governing boards and local boards of health. Another local entity with a strong interest in tobacco use policies is the local school board. I’m not going to address schools in this post, but more information about e-cigarette policies for K-12 schools is available on-line: see this February 2014 memo from State Superintendent June Atkinson to North Carolina’s local superintendents.

    This post also focuses specifically on local regulation of the use of vapor products. As I wrote in part 1, local governments may not regulate the sale, distribution, display, or promotion of e-cigarettes or other vapor products. Such regulations are expressly preempted by G.S. 14-313, the 2013 law that banned the sale of vapor products to minors. However, that law did not address local regulation of useRead more »

  • Regulating Electronic Cigarettes in North Carolina, Part 1: Federal and State Regulation

    Authored by: on Thursday, July 31st, 2014

    UPDATE: The 2014 Technical Corrections Act (S.L. 2014-115) made further changes to state regulation of vapor products in correctional facilities. An updated summary of 2014 legislation on this issue is available here

    If you watch television commercials or consume any form of news media, you’ve heard of e-cigarettes—battery-operated products that can look a lot like conventional cigarettes, but they don’t burn tobacco. They work by heating a cartridge with a solution that includes nicotine and sometimes flavors. Heating the solution produces a vapor that the e-cigarette user inhales. Many brands of e-cigarettes have an end that lights up when the product is in use, mimicking the appearance of a conventional tobacco cigarette. Use of the products is described as “vaping” rather than smoking.

    E-cigarettes are the subject of pending federal rules, and they have recently been the subject of some state law regulation as well. Depending on where you live, they may also be the subject of local regulations. In this two-post series, I’ll summarize the current status of e-cigarette regulation in North Carolina. Today’s post addresses federal and state regulation of electronic cigarettes and other vapor products. Part 2 will address local government authority to regulate these products in North Carolina. Read more »

  • New Construction Contractor Prequalification Requirements

    Authored by: on Tuesday, July 29th, 2014

    Since 1995, local governments have had express statutory authorization to prequalify bidders for public construction contracts under G.S. 143-135.8. If you look to this statute for guidance on the criteria or process to be used for prequalifying bidders, you will find the following:

    “Bidders may be prequalified for any public construction project.”

    That’s it? That’s it. For almost 20 years, local governments have had the legal authority to prequalify bidders for construction projects but have had no statutory guidance on how to do it. Not many local governments use prequalification, and those that do often look to the NC State Construction Office’s prequalification forms and scoring matrix for guidance (these documents are available on the SCO website). Now, thanks to legislation recently enacted by the General Assembly, specific statutory procedures and requirements will apply to the prequalification process.

    Read more »

  • Governmental Immunity for Local Government Buildings: What Are the Current Rules?

    Authored by: on Friday, July 25th, 2014

    As I have previously explained here and here, governmental immunity bars tort claims (negligence, assault, trespass, etc.) against cities and counties for personal injuries or property damage caused by the carelessness or intentional wrongdoing of their personnel in the performance of governmental functions. When the harm to a plaintiff stems from the performance of a proprietary function, however, governmental immunity does not apply, and the local government is subject to liability on the same basis as a private employer. Recently, in Bynum v. Wilson County, the North Carolina Supreme Court had to decide whether governmental immunity bars tort claims arising from an individual’s fall at a county building used for both governmental and proprietary functions. This blog post takes a quick look at the history of the governmental/proprietary distinction and analyzes the impact of Bynum on local government liability for injuries caused by unsafe premises. Read more »