Recent Blog Posts

  • Can the Board Take Action in a Workshop Meeting?

    Authored by: on Wednesday, July 10th, 2013

    A newly elected local government board member is attending an orientation session. Her hand shoots up. “One thing I’ve always been confused about is whether or not it’s legal for a board to take action in a workshop or retreat meeting.” All eyes turn to the board attorney for an answer. “That’s a great question,” the attorney says. “But I need one more piece of information to answer it.”

    Can you guess what piece of information is missing?

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  • America’s “First” July 4th

    Authored by: on Wednesday, July 3rd, 2013

    Tomorrow we celebrate the 237th anniversary of the adoption of the Declaration of Independence and the beginning of our journey as an independent nation.  But, did you know that July 4th also marks another beginning for our nation, one that happened right here in North Carolina?  No, not the opening of the first Krispy Kreme doughnut store in Winston-Salem.  That happened on July 13th, 1937.  The beginning described in this post is arguably America’s “first” July 4th.  And it happened here, in North Carolina, 429 years ago.

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  • Voting Rights Act Preclearance is Dead: Practical Considerations

    Authored by: on Tuesday, July 2nd, 2013

    Section 4 of the Voting Rights Act of 1965 is unconstitutional.  So said the Supreme Court of the United States on June 25, 2013, in the case of Shelby County v. Holder.  Section 4 identified the jurisdictions in the nation that were required under Section 5 of the Act to submit changes related to voting for approval by the U.S. Department of Justice, in a process known as “preclearance.”  With Section 4 unconstitutional, Section 5 is left without force.  It is, for all practical purposes, dead.  See Michael Crowell’s blog post here.

    What, exactly, does that mean for North Carolina’s 40 counties that were covered by Section 4?  For decades, those counties and their cities and school boards and boards of elections have been required to submit elections changes for preclearance.  For elections changes made starting now they no longer have to do that.  Their preclearance obligation with respect to those future changes has ended.

    But what about elections changes already made?  How are they affected?  My best guesses follow.  Let me say that again.  What follow are my best guesses.  There is no statute in place that describes how the Shelby County decision affects changes already made.  There is no obvious legal precedent from other contexts to clearly show the way; as Chief Justice Roberts said, in his Shelby County opinion, Sections 4 and 5 were “extraordinary measures,” unique in their enforcement mechanism.  And, it appears, no guidance has yet come from the Attorney General of the United States or from the Voting Section of the U.S. Department of Justice. Read more »

  • The Koontz Decision and Implications for Development Exactions

    Authored by: on Monday, July 1st, 2013

    The U.S. Supreme Court has long held that when a government agency conditions approval of a development permit on the dedication of some property interest, that condition must have an “essential nexus” and “rough proportionality” with the impacts of the development that the condition seeks to mitigate.  Thus, if a new development would moderately increase traffic to a site, a permit condition would need a nexus, or relation, to the particular kind of impact (i.e., road improvements, not parks) and the condition would need to be proportionate to the impact (i.e., turn lanes, not major highway construction).  This test of “essential nexus” and “rough proportionality” are commonly referred to by the names of the cases that set forth the test: Nollan and Dolan. (Nollan v. California Coastal Comm’n, 483 U. S. 825 (1987), and Dolan v. City of Tigard, 512 U. S. 374 (1994)).

    In the recent decision of Koontz v. St. Johns River Water Management District, 570 U. S. ____ (2013), the Supreme Court addressed two questions concerning the application of the Nollan/Dolan test:

    1)      Does it apply to demands for property, even when a permit was denied and no conditions attached?

    2)      Does it apply to conditions requiring money, not property?

    The answers? Yes and yes.  The Supreme Court extended the Nollan and Dolan test to demands for property prior to permit approval (not just exactions that attach to approved permits) and to conditions for cash payment (rather than just interests in real property).   The Koontz decision has clarified some issues for development permitting, but the full implications of this decision are not perfectly clear.  This blog discusses what we know and what questions remain.   Read more »

  • New Ethics Requirements for Local Transportation Planning Organizations – Round 2

    Authored by: on Friday, June 28th, 2013

    During the 2012 short session, the General Assembly enacted legislation that covered members of local transportation planning groups, known as RPOs and MPOs, under the State Government Ethics Act (GS Chapter 138A), the same ethics laws that apply to many state officials (for more about MPO’s and RPO’s and last year’s legislation, see this previous post).  Responding to concerns about the breadth and scope of these ethics requirements, especially as they applied to local government employees serving on MPO and RPO technical committees, the General Assembly recently enacted Senate Bill 411 (SL 2013-156). 

    This legislation makes two important changes to current law:

  • Repeals the statutes that included MPOs and RPOs under the State Government Ethics Act, meaning that members of MPOs and RPOs are no longer subject to the requirements and prohibitions of Chapter 138A, and
  • Puts in place a more narrowly focused set of ethics requirements that only apply to members of MPOs and RPOs with voting authority, meaning the members of the organizations’ policy boards (usually referred to as TACs).
  • The new requirements are now codified as GS 136-200.2(g)–(k) (for MPOs), and GS 136-211(f)–(k) (for RPOs).   What are these new requirements and what do they mean for local government officials and employees?

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  • The Supreme Court’s Voting Rights Decision

    Authored by: on Wednesday, June 26th, 2013

    An obligation that many North Carolina counties, school boards and cities have worked under since the mid-1960s ended yesterday. You have probably already read about the United States Supreme Court’s decision in Shelby County, Alabama v. Holder, the challenge to the constitutionality of Section 5 of the federal Voting Rights Act — the preclearance requirement which is now dead. There will be plenty of news coverage of the larger implications of the decision, so let’s just summarize briefly the effect on local governments in North Carolina.

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  • Court of Appeals Takes Expansive View of the Police Power

    Authored by: on Monday, June 24th, 2013

    UPDATE 3:  In an opinion issued on 12 June 2014, the North Carolina Supreme Court reversed in part and affirmed in part the decision of the North Carolina Court of Appeals.  I have blogged about the opinion here and here.

    UPDATE 2: In an order issued on 8 November 2013, the North Carolina Supreme Court granted the plaintiff’s request for review of the ruling by the North Carolina Court of Appeals.  Accordingly, the ultimate fate of the ordinances at issue in King will not be known until the supreme court issues a decision.

    UPDATE: In an order issued on 25 June 2013, the North Carolina Supreme Court granted the plaintiff’s motion for a temporary stay.  This action ensures that the ruling by the North Carolina Court of Appeals will not take effect before the  supreme court has an opportunity to consider the plaintiff’s request for further appellate review.

    The decision of the North Carolina Court of Appeals in George King, d/b/a George’s Towing and Recovery, v. Town of Chapel Hill, ____ N.C. App. ____ (2013), could breathe new life into the police power of local governments.  The court upheld the legality of an ordinance aimed at curbing objectionable towing practices and rejected a challenge to an ordinance prohibiting cell phone use by drivers 18 years of age or older.  This blog post analyzes King and what it means for the general ordinance making authority of local governments. Read more »