Recent Blog Posts

  • The Prison Rape Elimination Act and Its Impact on County Jails

    Authored by: on Monday, June 17th, 2013

    I have been getting many questions lately about the applicability and impact of the federal Prison Rape Elimination Act, or PREA. Specifically, people want to know the extent to which the law and its accompanying regulatory standards apply to local jails. This post provides some background on PREA and then discusses its applicability and enforceability. It concludes with a discussion of the standards themselves, with a focus on those that strike me as most likely to require substantial changes to current jail practices in North Carolina. Read more »

  • Local Government Budgeting Options when Revenue Streams are Uncertain

    Authored by: on Saturday, June 15th, 2013

    Each local government and public authority is required to adopt an annual budget ordinance that recognizes estimated revenues, authorizes expenditures, and levies tax(es) for the forthcoming fiscal year. The Local Government Budget and Fiscal Control Act (LGBFCA), G.S. Ch. 159, Art. 3, requires, among other things, that the budget ordinance be balanced. A budget ordinance is balanced when “the sum of estimated net revenues and appropriated fund balances is equal to appropriations.” The law requires an exact balances; it permits neither a deficit nor a surplus. And G.S. 159-13 mandates that estimated revenues include “only those revenues reasonably expected to be realized in the budget year . . . .”

    The LGBFCA further specifies that the budget ordinance be adopted “not later than July 1 . . . .” G.S. 159-13(a). This is because the fiscal year for local governments in North Carolina runs from July 1 through June 30. A perennial issue facing local government officials in adopting their budget ordinances is predicting the impact that the annual State Budget or other new legislation will have on their revenue streams. Typically the General Assembly adopts its budget only a few days before, or in many cases sometime after, July 1. And a legislative session may run into late summer or even early fall. Local officials tend to be particularly concerned about adopting their local budget ordinances before knowing of any changes to either their local revenue-raising authority or the State’s revenue-sharing programs. This year, for example, the General Assembly has introduced several bills that, if enacted, would overhaul the State’s tax system. Among some of the proposed changes are eliminating local privilege license tax authority and reducing or eliminating certain state revenue distributions to local governments. It is not currently known whether any of the bills will be enacted or in what form. And it is not clear whether local governments will be affected by the specific provisions that might be enacted. The purpose of this blog post is not to analyze the proposed bills and their potential impact on local governments. Instead the post details the budgeting options available to local governments in light of the revenue uncertainty.

    A local unit has a few options to deal with this uncertainty. It could delay adopting the budget ordinance, it could budget conservatively to insulate against unexpected revenue reductions, or it could make appropriations based on current expectations and then amend the budget if revenue projections change during the fiscal year. Read more »

  • BOA Changes Are Coming

    Authored by: on Wednesday, June 12th, 2013

    Many folks have never heard of zoning board of adjustment, but this is a critically important piece of the local development regulation machinery.  Every year these boards hear and decide hundreds of appeals of the interpretation of ordinances made by staff administrators – such as whether an alleged violation is really a violation or whether a proposed land use or project design really meets the ordinance requirements.  This board has the power to issue authorization to landowners to develop in ways contrary to the letter of the law – the variance power.  Many of these boards make final decisions on special or conditional use permit applications.  Boards of adjustment (often referred to as the BOA) may not get the public attention that comes along with a high-profile rezoning debate before the city council, but their work has a significant practical impact on landowners, developers, neighbors, and anyone else concerned about how land development regulations are applied.

    The statute creating boards of adjustment and setting their authority was first adopted in North Carolina in 1923.  Over the decades the statue has been frequently adjusted – some 17 times by my quick count.  The result was a nearly century old statute with its original language largely intact, supplemented with dozens of uncoordinated individual legislative tweaks added over the decades.

    Come October, however, we will have a modernized board of adjustment statute.  The new law does not drastically alter the fundamental aspects of the prior law.  Rather it focuses on providing greater clarity, creating standardized procedures for key actions, and generally providing more certainty and predictability about the processes used by boards of adjustment.  This post reviews how that came about and summarizes the changes it will make in the law. Read more »

  • 2013 Public Purchasing and Contracting Legislative Update – What’s Hot and What’s Not

    Authored by: on Thursday, June 6th, 2013

    The General Assembly’s crossover deadline has come and gone, so now is a good time to pause and take stock of pending legislation affecting public purchasing and contracting.  Bills proposing changes to our state’s public contracting statutes include authorizing design-build and public private partnership construction contracts, authorizing local preferences, and requiring E-Verify by construction contractors.

    Some of these bills have made considerable progress thus far in the legislative session; others are still pending in the committee to which they were initially referred, which does not bode well for their ultimate success.

    Bills of interest in the public procurement area are summarized below along with my very tentative assessment of which bills are and are not likely to pass this session.  Keep reading to the end of this post to find out how you too can track bills you are interested in.  And finally, when the General Assembly adjourns for the year, stay tuned for the School of Government’s annual legislative summary webinars. Read more »

  • Understanding the Voting Rights Act

    Authored by: on Tuesday, June 4th, 2013

    UPDATE November 2013: In June 2013 the United States Supreme Court declared Section 4 of the Voting Rights Act of 1965 unconstitutional.  That ruling made Section 5, discussed in the following post, unenforceable.  See these Coates Canon posts:  Supreme Court’s Voting Rights Decision, Voting Rights Act Preclearance is Dead:  Practical Considerations, and A Possible Unexpected Result of the Supreme Court’s Voting Rights Decision

    The United States Supreme Court is expected to rule this month on whether Section 5 of the federal Voting Rights Act remains constitutional nearly 50 years after its enactment.  Section 5 is just one of two chief operative parts of the act.  Even if Section 5 should be declared unconstitutional, the other chief part, Section 2, will remain in effect.  For nearly 50 years, people have been confused about the differences between Section 2 and Section 5. Read more »

  • Determining and Distinguishing Land Uses

    Authored by: on Friday, May 31st, 2013

    Through the years of local zoning and planning, we have managed to create increasingly complex use lists.  Each local ordinance has its own long list of defined uses, drawing fine lines between similar uses like “parks” and “public recreation facilities,” for example.  Despite these careful lists—or perhaps because of them—questions remain about determining and distinguishing among land uses.  Can we distinguish between owner and renter uses?  How about commercial and non-commercial?  What do we do when the use is not listed?  When do we know that a land use has changed?  This discussion explores those questions and the options and requirements for distinguishing uses. Read more »

  • Feds Reverse Course and Extend New Garnishment Procedures to Local Tax Collections

    Authored by: on Thursday, May 30th, 2013

    It was big news for tax geeks like me back in early 2011 when the federal government released new regulations controlling garnishments of bank accounts that contain certain federal benefit payments.  The regulations made banks responsible for determining if a garnished account contained Social Security payments or other protected federal benefits and, if so, to make sure that those benefits were not garnished.  I blogged about the impact of these regulations on tax garnishments here.  And I talked about them extensively in this attachment and garnishment webinar.

    But soon after the regulations became effective the U.S. Treasury Department announced that the required garnishment procedures would not apply to local government tax garnishments.  That surprise announcement led to this blog post letting local tax officials across the state know that it would still be their job to figure out which bank accounts were off limits to garnishment because of federal benefit deposits.

    Well, guess what? Just this week the Treasury Department and four other agencies involved with this issue changed their minds and published new “final” regulations that extend the reach of the required garnishment procedures to cover all state and local tax garnishments.

    I think this development is (belated) good news for local tax collectors and taxpayers alike because it eliminates existing uncertainty about when and how bank accounts containing certain federal benefits may be garnished for delinquent taxes. Read more »