Recent Blog Posts

  • Animal Control: Recovering Sheltering Costs Under G.S. 19A-70

    Authored by: on Tuesday, October 30th, 2012

    When animal control officials seize animals, local governments and animal welfare organizations can end up spending a lot of money to shelter, feed, and otherwise care for the animals. In 2005, the General Assembly enacted G.S. 19A-70, which allows animal shelters to recover costs related to housing and caring for animals that are the subject of certain civil cases and criminal prosecutions. Some local governments across the state have been testing out this new cost recovery tool and experiencing mixed results. Some have decided not to use it at all. I thought I would take a moment to review the law and highlight the primary area of confusion – jurisdiction.  I would also like to invite others who have traveled this road to offer tips and suggestions. How have you made it work? Read more »

  • Capital Reserve Funds Revisited

    Authored by: on Monday, October 29th, 2012

    In a recent post, I discussed two ways through which a local government may save money over time to fund capital projects. The first is through fund balance and the second is by establishing a capital reserve fund. I received several follow-up questions about capital reserve funds that may be of interest to local government officials, including the following:

  • In establishing a capital reserve fund, does a local government have to list each specific project for which it is accumulating funds or may it list more general expenditure categories?
  • May a local government use a capital reserve fund to accumulate money to provide a grant or loan to a private entity to fund a private capital project?
  • May moneys held in a capital reserve fund be invested? If so, what are the available investment options? And, must the investment returns be allocated to the capital reserve fund?
  • May a local government establish a trust fund to accumulate moneys over time to finance future government expenses?
  • Each is addressed below. Read more »

  • Is North Carolina a Dillon’s Rule State?

    Authored by: on Wednesday, October 24th, 2012

    North Carolina is often described as a “Dillon’s Rule” state. What does that mean? Is it the opposite of home rule? Does it mean our courts apply Dillon’s Rule in interpreting the scope of local government authority? Or does it simply reflect the fact that local governments in North Carolina have no inherent authority and derive all of their authority from the state?

    The answer is “none of the above.” North Carolina cases no longer apply Dillon’s Rule and we’re not a home rule state. Recent cases analyzing the scope of local government authority apply the “plain meaning” rule of statutory interpretation, which allows application of the legislative “broad construction” rule only in cases where the enabling legislation is ambiguous.  The most recent North Carolina Supreme Court case addressing this subject, however, gives me pause. For while the court cites with approval the line of cases rejecting Dillon’s Rule, it applies a rule that appears to be as strict, or perhaps even more strict, than Dillon’s Rule.

    Confused? You’re not alone. This blog post summarizes the evolving case law in attempt to answer the question: What rule or standard should North Carolina courts use in determining whether a particular action by a local government is authorized under state law? Read more »

  • How Should Local Health Departments Respond to Requests for Medical Records for the Deferred Action Immigration Program?

    Authored by: on Friday, October 19th, 2012

    Last summer, the United States Secretary of Homeland Security announced a new program called Deferred Action for Childhood Arrivals. Under this program, some unauthorized immigrants who entered the United States before the age of 16 may qualify to have immigration enforcement actions against them deferred, meaning that the US will not act to remove them from the country during the deferral period. An individual who qualifies for deferred action may also obtain authorization to work legally.

    To be eligible for deferred action, an individual must provide evidence that he or she:

    • Arrived in the United States before his or her 16th birthday;
    • Was physically present in the US on June 15, 2012, and was both undocumented and less than 31 years of age on that date;
    • Has continuously resided in the US since June 15, 2007;
    • Is currently in school or has graduated from high school or obtained a GED, or is an honorably discharged veteran; and
    • Has not been convicted of a felony or certain misdemeanors, and does not otherwise pose a threat to national security or public safety.

    Demonstrating eligibility for deferred action requires individuals to provide a fair amount of documentary evidence, which may include medical records. US Citizenship & Immigration Services (USCIS) began accepting applications for deferred action in August. Since that time, a number of local health departments in North Carolina have received requests for medical records from individuals who want to apply. For answers to health departments’ most frequently asked questions about releasing medical records for the deferred action program, please keep reading. Read more »

  • School Impact Fees and Development Regulations: Another Round

    Authored by: on Tuesday, October 16th, 2012

    In areas experiencing urban growth and development, two questions often arise for local governments.  Do we have the capacity to provide necessary public facilities to serve this development?  If not, how are we going to pay for the needed additional facilities?

    A range of public services are needed for development — water, sewer, streets, schools, parks, fire, police, emergency medical service, waste collection and so forth.  Sometimes growth occurs where the public facilities to provide those services are in place to accommodate new development.  But it is not unusual for new development to be proposed where existing public facilities are already stretched to capacity or beyond.  In North Carolina this issue is particularly acute in high growth areas such as the small towns and counties surrounding our major urban areas. In these areas high rates of residential growth, combined with modest existing public facilities, quickly lead to significant economic, political, social, and legal controversies regarding the rate of growth and how to finance demands for new public facilities.
    These controversies led to the most recent North Carolina Supreme Court pronouncement on land use law – Lanvale Properties, LLC v. County of Cabarrus, ___ N.C. ___, 731 S.E.2d 800 (2012).  The court invalidated the approach the county had taken to provide new school capacity.  The case has important lessons for cities and counties wrestling with issues of growth and public facility capacity. The key issue in this case dealt with financing the costs of adding school capacity, but the same issue must be addressed for the full range of public facilities needed to serve new development. Read more »

  • Quasi-Judicial Zoning Decisions and Property Values: Whose Opinion Counts?

    Authored by: on Thursday, October 11th, 2012

    How many times have you been to a public hearing and heard opponents to a particular zoning proposal say that it will cause the values of their property to decline? The impact on property values is a theme that runs through most zoning decisions. Developers want to create value in their own real property and are wary of property use restrictions that have the opposite result. Owners of neighboring property sometimes benefit from nearby development because a rising tide of property values elsewhere may lift the boats of neighbors as well. Often, however, there is a tendency for neighbors to think that development projects on other people’s land will have negative, perhaps unintended, consequences for the use and value of one’s own land. But does the opinion of a lay person on such matters count in a quasi-judicial forum? This blog concerns the ability of property owners to offer legally competent opinions about the impact of such zoning decisions on their own property. Read more »

  • Financing Capital Projects—Part I: “Saving” through Fund Balance and Capital Reserve Funds

    Authored by: on Sunday, October 7th, 2012

    UPDATE August 2013: For more information on capital reserve funds, click here.

    Blight City has fallen on hard times. Its population has declined significantly since the 1990s, due in large part to the shuttering of two large manufacturing plants. Emblematic of the city’s decline is its central downtown area. Once a vibrant community center, it is now comprised mainly of run-down, vacant buildings. Recently, however, a mid-sized micro-brewed root beer company purchased one of the old manufacturing plants (located just outside the city’s downtown) and began operations. It employs 200 people and plans to double its workforce over the next two years. The company wants to capitalize on a recent resurgence in root beer “connoisseurs” by expanding the plant to include a tasting facility. And the company has expressed interest in opening a restaurant and root beer bar in the city’s downtown. City leaders want to support the company’s efforts. They view the company’s investment in the city as a cornerstone for the city’s resurgence.

    In fact, the root beer company’s recent investment in the city has sparked the interest of at least one developer. She has approached city officials about plans to help revitalize downtown. The developer intends to purchase several of the vacant buildings and refurbish them to attract a mix of small commercial entities, restaurants, bars, and residential tenants. Both the root beer company and the developer have requested (among other incentives) that the city invest in some infrastructure improvements and upgrades in the central downtown area to complement the private development. Specifically, the private entities would like the city to make road improvements, widen the sidewalks, install street lights, upgrade water and sewer lines, and demolish a city-owned structure to construct a parking lot.

    Assuming that the city councilmembers are willing to make these public infrastructure investments, there are several available funding options, which fall into five general categories: (1) Current Revenues; (2) Savings; (3) Grants/Donations/Partnerships; (4) Special Levies; and (5) Borrowing Money. This is the first in a series of posts discussing these funding options. It focuses on “Savings”—describing two ways in which the city may accumulate revenues over time to fund a portion or all of the costs of these (and other) capital projects and assets. Read more »