Recent Blog Posts

  • Health Reform: Role of County Human Services Agencies in Enrollment

    Authored by: on Monday, September 30th, 2013

    Beginning October 1, 2013, individuals in North Carolina will be able to sign up to purchase private health insurance through the federal “marketplace” or “exchange” established under the Patient Protection and Affordable Care Act (PPACA or ACA). Some individuals will be eligible for subsidies to help with the cost of this insurance coverage. Under the federal law, most individuals will be required to have health insurance by January 1, 2014 or face a tax penalty (see this helpful infographic by the Kaiser Family Foundation for exceptions). Coverage will begin on January 1, 2014 for those who sign up through the exchange before December 15, 2013.

    Many county agencies are getting calls for information about the enrollment process – What plans will be available? Will the county be able to help me enroll? Below are short answers to these two threshold questions and links to a few other relevant resources.

    Read more »

  • Voting Calculations When a Simple Majority is Not Enough to Decide a Zoning Matter

    Authored by: on Monday, September 30th, 2013

    Update:  The zoning protest petition for municipal rezonings discussed in this post was repealed in 2015 (S.L. 2015-160).  All rezonings now only require a simple majority vote of the city council (the protest petition provision was never applicable to county zoning).  Note however that with zoning amendments, G.S. 160A-75 provides that a member who is present but does not vote is not counted as an affirmative vote.

    Consider these two situations.

  • Maggie Greene has applied for a variance in order to locate her new garage 5 feet into the required 20-foot side yard setback.  The variance request is being considered by the Woodbury board of adjustment, which has five members. Lorrie Grimes, a dedicated member of the board, is home taking care of a sick child. After hearing all the testimony, the board votes 3-1 to grant the variance.  Can Maggie celebrate and tell her contractor to start work?
  • Daryl Dixon has applied to have a four-acre parcel rezoned from single-family residential to multi-family residential in order to build a 180-unit apartment complex.  The town staff and planning board have recommended approval.  Despite numerous informal meetings, several of the immediate neighbors remain adamantly opposed.  The week before the city council hearing those neighbors filed a protest petition objecting to the rezoning. The city council has seven members.  One member, Carol Peletier, is a partner in Daryl’s development company and because of that conflict of interest, does not vote on rezoning.  The council votes 5-1 to approve the rezoning?  Was the rezoning adopted? Read more »
  • Preempted? Let Me Count The Ways.

    Authored by: on Monday, September 30th, 2013

    One of the basic principles of local government law in North Carolina is that cities and counties have only those powers delegated to them by the General Assembly.  Another is that any action taken by a local government must be consistent with state and federal law.  Within broad constitutional parameters, the legislature may expand or contract the powers of local governments as it deems appropriate.  When the General Assembly enacts a law that expressly or by implication restricts or eliminates the power of local governments to deal with particular subjects, the law is said to preempt any local government action that would conflict with its provisions.

    During its last regular session, the General Assembly enacted a number of laws that deprive local governments of the authority to do certain things.  With apologies to Elizabeth Barrett Browning for its title, this blog post highlights seven ways in which new laws preempt local government action. Read more »

  • Historic Preservation Commission Basics

    Authored by: on Friday, September 27th, 2013

    “The historical heritage of our State is one of our most valued and important assets,” and our cities and counties are authorized to safeguard that heritage and promote the use and conservation of North Carolina’s historic landmarks and districts (G.S. 160A-400.1).  Before the local government designates a historic district or landmark, though, it first must create a historic preservation commission to manage that effort. This blog considers the organization and authority of the local historic preservation commission, including an overview of standards and procedures for certificates of appropriateness. Read more »

  • Assessors’ Right of Entry on Private Property

    Authored by: on Thursday, September 19th, 2013

    Do county property tax officials have the right to enter private property for appraisal purposes? This question keeps popping up in my in-box and on the Ptax listserv.  With good reason, too, because state law doesn’t offer a quick answer.  There isn’t one particular statute, constitutional provision, or court opinion that neatly resolves the issue. 

    Instead, we need to pull together guidance from a variety of legal sources to come up with this somewhat muddled answer: County tax officials may enter private land (but probably not buildings unless those buildings are generally open to the public) for appraisal purposes unless the owner of the property has made it clear that such entry is not permitted. 

    How could the owner make it clear that appraisers are not permitted on her property? Shouting maniacally while brandishing a shotgun certainly would work.  But less violent means would also suffice: posting “no trespassing” signs or informing the tax office via email that entry was not permitted would also do the trick.  Once tax officials are aware of the fact that entry is not permitted, appraisers must do their best to appraise the property from the curb. 

    Here’s a more detailed analysis . . . Read more »

  • Sidewalk Dining: Some Questions and Answers

    Authored by: on Friday, September 13th, 2013

    Imagine a balmy autumn evening. You and your family or friends have plans to go out for dinner. The restaurant that you have in mind offers you the chance to grab a table outdoors on the sidewalk. Have you ever wondered about what arrangements are made by the restaurant and governmental agencies to make “eating out front” possible? Maybe not. But if you are curious about these arrangements, and are willing to read a rather long blog, then read on. Read more »

  • Removing an Elected Official by Amotion: Judge Says It Can Be Done

    Authored by: on Thursday, September 12th, 2013

    In 2009 I wrote a blog post summarizing the common law doctrine of “amotion” which was recognized in several old North Carolina cases as an inherent power of a board to remove one of its members. Since there had been no legislative or judicial sanction of board removal of an elected official since the last case involving amotion (decided in 1935), I said it was “unclear” whether a court would uphold a local government board’s removal of one its members by amotion.

    Last week, Special Superior Court Judge James Gale issued an order in a case involving the removal of New Hanover County Commissioner Brian Berger.  Reviewing the board’s 3-2 decision to remove Mr. Berger, the judge ruled that “[a]n amotion procedure remains a lawful procedure that may be utilized for the purpose of removing an elected official so long as such procedure includes notice and hearing and is based upon sufficient competent evidence demonstrating reasonable and just cause for removal.” Brian Berger v. New Hanover County Board of Commissioners, 13 CVS 1942 (Sept. 5, 2013), slip op. at 30. Although the judge upheld the validity of the process that New Hanover developed for the amotion proceeding in general, he voided the Commissioners’ decision because it was based, in part, on findings of fact that relied on personal experiences and impressions of two commissioners, rather than on objective evidence presented at the hearing. The judge’s order restores Commissioner Berger to his elected office, but the order’s “remand” leaves open the possibility that the board could redo the amotion proceeding. The order provides specific guidance on the standard for removal, as well as the essential elements of a valid amotion process. This blog post summarizes Judge Gale’s blueprint for removal by amotion. Read more »