Recent Blog Posts

  • Can We Top Off Our Tower?

    Authored by: on Monday, March 18th, 2013

    Update:  Provisions substantially similar to the federal provisions discussed in this post were incorporated into state statutes in 2013.  S.L. 2013-185.  See the update at the end of this post for details.


    Cell tower construction is a hot zoning topic.  The proliferation of smart phones and tablet devices is substantially increasing the demand for wireless data transmission.  Everyone wants good cell phone reception and high quality access for their mobile devices.  But no one wants to look at a cell tower out their back door.  This demand for more and higher quality wireless coverage, combined with widespread concern about the aesthetic impact of telecommunication towers, has sparked a considerable amount of legislation and litigation, not to mention many heated zoning hearings.

    The latest wrinkle in reconciling these competing public interests is a little-noticed provision tucked into 2012 federal legislation extending payroll tax cuts and unemployment benefits.  This law, along with recently released FCC guidance, affects an issue that increasingly arises with cell towers.  Suppose there is an existing, permitted cell tower that was built to the maximum height and size allowed by local zoning regulations.  The tower owner now has an opportunity to lease space to a provider who wants to collocate a new antennae array on this tower, but there is not enough space on the tower for an additional antennae array. 

    If the tower owner applies for a permit modification to add height and new antennae to the tower, this new legislation dictates whether the local government has to approve it.  Can the tower owner top off the tower?  Under the new law, in many instances the answer is yes, the local government will have to approve the modification. Read more »

  • NC Supreme Court Strikes Down Lumberton’s Tax on Video Sweepstakes

    Authored by: on Thursday, March 14th, 2013

    Were I a gambler, I would not have bet on this result.  No, I don’t mean Duke’s glorious trouncing of the Tar Heels on Saturday night.  I mean last Friday’s surprising ruling from the North Carolina Supreme Court that Lumberton’s privilege license taxes on video sweepstakes were unconstitutionally high and therefore unenforceable.  As a result, Lumberton will need to refund the $5,000-per-location and $2,500-per-machine taxes the city levied on video sweepstakes operators since 2010.

    Why was this result so surprising? Mostly because the court abandoned its traditional deference to policy makers when evaluating the appropriateness of taxes.  For decades before Friday’s ruling the court had always granted elected officials great freedom to set tax rates so long as those rates were not so high as to eliminate all opportunity for the businesses subject to those taxes to operate at a profit. 

    I also found it surprising that the court seemingly misinterpreted Lumberton’s privilege license tax system when it calculated the difference between city taxes levied on video sweepstakes and city taxes levied on other businesses.  Had the court calculated this difference correctly, the outcome of the case might have been different.

    Here’s my take on the court’s decision and what it means for other cities that levy privilege license taxes on video sweepstakes.  Read more »

  • Now Therefore, Be It Resolved…

    Authored by: on Wednesday, March 13th, 2013

    Betty Sue has served on the Caring County Board of Commissioners during politically turbulent times — the civil rights movement, the war in in Viet Nam, Apartheid in South Africa, women’s rights, and the right to bear arms. On these and many other issues, the board has felt moved or been asked to weigh in, for or against, by adopting resolutions. The board has also adopted resolutions about more local issues and events, often at the request of citizens and local organizations — in support of the local marching band’s trip to the state finals, recognizing Mrs. Beasley’s Flower Shop for 50 years of service to the community, and in support of a local bill declaring Caring County the most caring county in North Carolina.

    Now comes the Society for the Exploration of Communication with Aliens (SECA). They want the board to adopt a resolution supporting their efforts to communicate with living creatures on other planets. Betty Sue is concerned. Is this something the commissioners have authority to weigh in on? Even if they do, it doesn’t seem like something they should really get involved with. But if they refuse, would they be open to criticism or even a legal challenge, given all the other groups they’ve supported? Must they create a policy on resolutions of this type in order to support their decision?

    The basic answer to Betty Sue is that these types of resolutions have no legal effect and it is completely up to the board (or a majority of the board) to decide which ones to adopt.  There are, however, a few areas where the board should exercise caution, as discussed more fully below. Read more »

  • How to Fill a Vacancy on an Elected Board

    Authored by: on Tuesday, March 5th, 2013

    An elected member of a North Carolina city council dies or moves away or resigns.  Or a member of a board of county commissioners.  Or a county school board.  A vacancy is created.  The statutes are clear about who picks the new person to fill the vacancy:  the city council (GS 160A-63);  the county commissioners (GS 153A-27 and -27.1);  the school board (GS 115C-37 and -37.1).

    But the statutes do not tell the boards how they are to go about deciding who will fill the vacancy.  How does the board go about making that decision, conducting that vote, actually filling the vacancy?  [For a related discussion on filling vacancies on a city council, see Frayda Bluestein’s excellent Coates Canons post here.]

    For all city councils there are two options.  The same is true for about half of the boards of county commissioners and all but a handful of school boards.  For the rest of the boards of commissioners and the school boards, it hardly matters. Read more »

  • Denying Government Services Due to Delinquent Property Taxes

    Authored by: on Thursday, February 28th, 2013

    Earlier this week a city official asked this interesting question, “Can we refuse to allow residents who have not paid their property taxes to use city recreational facilities?”  The city that raised the question operates a recreation center with a swimming pool and exercise equipment for which it charges residents a small membership fee.  The city wanted to deny residents who owed delinquent taxes from becoming members and using the center.

    My first reaction was, “No way!”  The general rule of local government authority in North Carolina is that if a statute does not explicitly authorize local governments to engage in a particular activity then local governments may not engage in that activity.   Nothing in the Machinery Act or elsewhere in the General Statutes explicitly authorizes a local government to refuse recreational services to delinquent taxpayers.  Then cities must not be able to do this, right?

    But as I thought more about the issue and bounced it off of my colleagues for their thoughts, I realized the answer wasn’t quite that simple.  Read more »

  • When is That Guy Going to Finish His Remodeling Job??

    Authored by: on Wednesday, February 27th, 2013

    The story goes something like this:  Jones, who is something of an eccentric guy anyway, lives in a relatively good neighborhood. But his house has never really fit into the area. His house looks like a work in progress with no clear design plan. He apparently is in the process of remodeling and expanding the house himself. This project of his has gone on for several time. It seems as if the piles of construction materials scattered around the yard have been there forever. These do-it-yourself guys will drive you crazy. Isn’t there something that the government can do to make him finish the job or to revoke his permit? Read more »

  • Animal Control: Who is Responsible?

    Authored by: on Tuesday, February 26th, 2013

    When I teach about animal control law in North Carolina, I often describe the work as multifaceted. The individuals involved wear various hats – they are animal control officers, animal cruelty investigators, communicable disease investigators, public safety officials, animal welfare specialists, shelter administrators, and community peacemakers. Given the wide range of responsibilities, who should be responsible for the work of animal control:  Law enforcement?  Public health?  An animal welfare organization? A separate county department?

    North Carolina local governments have answered this question many different ways. In the last year, I have received quite a few inquiries on this topic as some local governments began revisiting their decisions, exploring new options, and making changes. I was curious about this increased call volume and thought it would be worth trying to pull together some baseline data about local government administration of animal control. The North Carolina Association of County Commissioners generously agreed to include some questions in its annual survey that focused on this issue.  The responses provide an interesting snapshot of a local government field that is tremendously diverse. They also raise an interesting legal question:  may a county health department delegate its rabies control responsibilities? Let’s first look at the survey responses and then we’ll dig into the legal issue.

    Read more »