Recent Blog Posts

  • 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 »

  • Court of Appeals Reaffirms New Interpretation of Pre-audit Requirement

    Authored by: on Thursday, May 23rd, 2013

    In Executive Medical Transportation, Inc. v Jones County Department of Social Services, 735 S.E.2d 352 (NC Ct. App. 2012), disc. rev. den’d, 737 S.E.2d 378 (N.C. 2013), the North Carolina Court of Appeals held that an oral agreement between a medical transport company and the county was void because the agreement did not include a written preaudit certificate. As I discussed here, the court interpreted G.S. 159-28(a) (commonly referred to as the preaudit requirement) to require that all contractual agreements that obligate a local government or public authority to pay money within the current fiscal year include a preaudit certificate. This holding effectively requires that all such contracts be in writing. The Court of Appeals recently reaffirmed this interpretation of the preaudit requirement in Howard v. County of Durham, No. COA12-1484 (May 7, 2013). This post summarizes the Howard case and then provides a brief overview of when the preaudit statute is triggered, and what it requires, in light of these recent court of appeals cases. Read more »

  • Are Mug Shots Public Records?

    Authored by: on Wednesday, May 22nd, 2013

    This may seem like a silly question. Mug shots (more formally, “booking photographs”) are everywhere, posted for free, searchable on line, sold in magazines at convenience stores, and regularly provided by law enforcement agencies. I never considered the question of whether North Carolina law enforcement agencies could withhold mug shots until a lawyer at the North Carolina Justice Center asked me to look at an analysis he prepared, arguing that mug shots are not subject to public access. There is no North Carolina case on this point, but now that I have looked into it, I believe that mug shots are criminal investigation records and that local law enforcement agencies have the authority to deny access to them.  I’m not arguing that agencies should deny access, but I think it’s important for public agencies to understand that they can. I also think agencies have the authority to release some photographs and not others, if there is a legitimate law enforcement purpose for doing so.

    Read more »

  • Bigelow v. Town of Chapel Hill: When May State Constitutional Claims Against Local Governments Be Dismissed?

    Authored by: on Monday, May 20th, 2013

    Local governments often find themselves being sued over injuries allegedly caused by their officials or employees.  Such lawsuits sometimes include both tort claims and state constitutional claims premised on the same set of facts.  For example, a plaintiff who believes she was wrongly arrested during a public protest might sue a city for false imprisonment and for violating her right to assemble under Article I, Section 12 of the North Carolina Constitution.

    Like defendants in other cases, a local government may have a particular claim or an entire lawsuit dismissed at the outset of litigation if the plaintiff’s factual allegations, taken as true, do not state a valid legal claim.  (The law generally requires a court to accept a plaintiff’s factual allegations as true when reviewing a motion to dismiss because the plaintiff hasn’t yet had the chance to compel the production of evidence favorable to his claims.)  Additionally, a local government may have a claim under the North Carolina Constitution dismissed if adequate relief is available to the plaintiff through a tort claim.  The existence of an adequate alternative remedy (“AAR”) results in the dismissal of a state constitutional claim, regardless of whether the plaintiff’s factual allegations describe a constitutional violation.

    The recent opinion of the North Carolina Court of Appeals in Bigelow v. Town of Chapel Hill, ____ N.C. App. ____ (May 7, 2013), limits the authority of trial courts to dismiss state constitutional claims based on the availability of an AAR.  A cursory review of the opinion could also leave the impression that, even when a plaintiff’s allegations fail to allege a violation of the North Carolina Constitution, a trial court may not dismiss a state constitutional claim so long as the existence of an AAR is disputed.  As explained below, this is a misreading of Bigelow. Read more »

  • A Few Thoughts on Community Appearance and Design Controls

    Authored by: on Friday, May 17th, 2013

    One of the many bills that has drawn public and media attention this spring has been House Bill 150, a bill dealing with residential “design controls.” With certain notable exceptions it generally prohibits zoning or land subdivision regulations related to “building design elements” from being applied to one- and two-family dwellings. “Design elements” applicable to manufactured housing and historic landmarks and structures in historic districts are excepted. Likewise elements that are integral to the State Building Code, and flood hazard regulations associated with the federal flood insurance program, are also not subject to the bill. The bill has passed the House and awaits further action in the Senate.

    One of the more bizarre arguments in support of the bill is that local government regulation of community appearance (“design”) is, except with respect to the situations noted above, statutorily unauthorized. In other words some argue that the activity proposed to be banned has been illegal all along. Is that so? If it is not so, what tips can be provided to those local governments who wish to proceed with such regulations? Read more »

  • Rick’s Cafe Experiences Growing Pains

    Authored by: on Thursday, May 16th, 2013

    A small restaurant on the edge of town has been in operation for many years.  Rick’s Cafe Carolinian was built in the 1940’s by Vic and Ilsa Laszlo at a time when the surrounding land was only woods and fields.  Residential subdivisions gradually grew up around their business.  When the town adopted zoning in the 1970s, this entire area was zoned for residential use.

    The café is now owned by Vic and Ilsa’s grandson Sam.  While the business has been stable over the years, Sam believes it needs to be substantially modernized to remain viable.  He would like to do the following.  First, he would like to build a modest addition to the side of the building to expand the café’s small bar area.  This would allow Sam to add the piano bar of his dreams.  Second, he would like to convert a large unused back room into extra seating space for the café.  This room has only been used for storage for decades.  Some say that Sam’s grandparents used this back room for an illicit gaming operation in the café’s early days, but that is another story.  Now, with some modest renovations, it could add 30% more seating space, helping to pay off the loans he needs to take out for his renovations.  Finally, he would like to completely replace the building’s wiring, plumbing, and heating/air conditioning systems, and while he is at it, replace all of his kitchen equipment with modern appliances.  He knows this will cost a good deal, but he wants to make the building comfortable, more functional, and bring it up to modern code standards.

    Sam ran these ideas by some of his regular Friday evening bar customers as several of them were builders and contractors knowledgeable about such things.  One of the regulars happened to be Hank Strasser, a retired builder who is now the town zoning officer.  Hank agreed that Sam’s plans would be a great improvement for the café, but immediately saw a red flag.  The building housing Rick’s is structurally sound and meets all of the town standards regarding setbacks and the like.  But the cafe is not allowed in this zoning district since the land is zoned for residential rather than commercial uses.  Hank told Sam that he could always seek a rezoning, but that would be a long shot in this situation.  The neighbors had vigorously opposed several prior proposals to rezone parcels for commercial use and the town’s new land use plan calls for the entire area to stay predominately low density residential.  Hank explained that since Rick’s was a nonconforming use, the ordinance prohibits enlargement or expansion.  “What, pray tell,” says Sam, “does that mean for my plans to improve the café?”

    The answers are not as certain as one might think, especially if the town ordinance only has the typical brief provisions regulating nonconformities.  There are important policy implications to consider when framing limits on nonconformities, balancing the interests of the landowner, the neighbors, and the community.  A local government should carefully consider these implications and make clear, explicit policy choices when the restrictions are adopted. Read more »

  • Who Can Request Public Records?

    Authored by: on Friday, May 10th, 2013

    The United States Supreme Court recently upheld a provision in the state of Virginia’s Freedom of Information Act (FOIA), which allows only Virginia citizens to request  public records under the act. The case is McBurney v. Young.  Could a North Carolina local government impose a similar limitation? The answer is “no”. Our statute provides access to “persons” and has never been interpreted to apply only to persons who are residents or citizens of the state. A local government has no authority to limit the scope of the state statute. The Supreme Court decision suggests, however, that the United States Constitution would not prevent the North General Assembly from creating such a limitation.

    Read more »