Recent Blog Posts

  • 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 »

  • What is a County Advisory Committee on Health and Who Has to Have One?

    Authored by: on Friday, June 21st, 2013

    Last summer, the General Assembly adopted legislation that allows North Carolina counties to make significant changes to how local health and human services are organized and governed. In April, my colleague Aimee Wall wrote a blog post describing the three basic options that the new law allows and explaining  key aspects of the processes for exercising them. Aimee’s post is highly recommended reading for a county considering the options, or if you need a refresher on the law to put this post in context.

    Today’s post is narrowly focused on one portion of the new law: the requirement that commissioners who have assumed the powers and duties of a board of health must appoint an advisory committee on health. How does a board of commissioners find itself in that position? There are two ways:

    • The commissioners may abolish the county board of health and directly assume its responsibilities, powers, and duties.
    • The commissioners may create a consolidated human services agency (CHSA) that includes public health, and then directly assume the responsibilities, powers and duties of the consolidated human services board.

    • 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 »