Recent Blog Posts

  • Exactions and Subdivision Approval

    Authored by: on Friday, February 1st, 2013

    Can a city require sidewalks for a development? Can a county charge fees from a developer for parks?  In North Carolina, what exactions are allowed? The short answer: It depends upon the type of development approval and the underlying statutory authority.  Following the recent decision of Lanvale Properties, LLC v. County of Cabarrus, there is renewed focus on the scope of authority for development regulation.  As David Owens discussed here, among other findings, the North Carolina Supreme Court decision emphasized the distinction between zoning authority and subdivision authority.

    This blog explores the authority for exactions related to subdivision approvals as set forth at G.S. 160A‑372 and 153A-331Read more »

  • Palm Trees and Property Tax Appraisals

    Authored by: on Thursday, January 31st, 2013

     What justifies a change to a real property tax appraisal in between county-wide reappraisals? The short answer is “not much.” 

    For a longer answer, take a look at last week’s opinion from the N.C. Supreme Court in Appeal of Ocean Isle Palms, LLC,  a case involving undeveloped residential lots in Brunswick County.   The opinion offers helpful guidance about the distinction between correcting errors in the application of an existing appraisal methodology, which is permitted, and creating an entirely new appraisal methodology, which is not.  Read more »

  • Financing Capital Projects–Part II: Special Levies

    Authored by: on Tuesday, January 29th, 2013

    UPDATE AUGUST 2013: The General Assembly extended the authority for the Newer Special Assessment Method. It was set to expire on July 1, 2013. It is now set to expire on July 1, 2015. The legislature also made a few important changes to the Newer Special Assessment authority. See S.L. 2013-371.

    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 second in a series of posts discussing these funding options. It focuses on “Special Levies”—describing two potential mechanisms whereby a unit may raise money from the property owners who most directly benefit from the capital project(s) financed with the raised funds. Read more »

  • Unexcused Absences

    Authored by: on Thursday, January 24th, 2013

    Pat Sprat was elected to the town council but just after being sworn in, a sudden illness landed her in the hospital. Pat couldn’t drive for several months, but was able to keep up with town matters by email and phone calls. On top of that Pat was transferred to a new position at work, with lots of travel out of the state. And then there are the family demands.  Pat’s daughter is a top contender in the National Rubix Cube competition (the 3×3 blindfolded is her event) and those tournaments keep Pat on the road in between business trips. As a result of all this, Pat has missed 10 of the last 12 council meetings, and will be unable to attend the budget workshops and the public hearing on the budget. Board members are concerned that Pat is not fulfilling the duties of the office and they are frustrated that they sometimes don’t have enough members constitute to a quorum.  What can a city or county governing board do when one of its members won’t or can’t come to meetings? As a practical matter, not very much. Read more »

  • What’s Next for Video Sweepstakes?

    Authored by: on Thursday, January 17th, 2013

    It took more than two years, but the ban on video sweepstakes that was originally scheduled to take effect in December 2010 is finally enforceable.   The North Carolina Supreme Court ruled on December 14, 2012, that the ban did not violate the sweepstakes operators’ free speech rights under the First Amendment.  Appellate court rulings become effective after 20 days, meaning that just after New Years’ Day local law enforcement could begin enforcing the ban and shutting down video sweepstakes parlors.

    So the long and winding saga finally ends, right? Video sweepstakes machines disappear from the state, never to return again, along with the jobs they created and the risk of Grandma blowing her grocery money playing pseudo slot machines.

    Not so fast. Plenty of video sweepstakes operators closed their doors after the ruling.  But not all of them. And some that have closed may reopen after changes to their operating systems, more legislation, or additional court rulings. Read more »

  • Can the Board Go Into a Closed Session to Deliberate a Quasi-Judicial Decision?

    Authored by: on Wednesday, January 16th, 2013

    The board of adjustment is hearing a hotly contested appeal.  The zoning administrator interpreted a somewhat ambiguous provision in the zoning ordinance to allow a controversial land use.  Irate neighbors appealed that determination to the board of adjustment.  The case quickly turned into one of the hottest land use disputes in recent town’s history, garnering multiple front page stories in the local paper and a spot on the local TV news.

    The board held two lengthy hearings to gather facts about the issue.  They received substantial amounts of conflicting evidence, some from expert witnesses and much from concerned neighbors.  Some of the board members are uncertain how to resolve questions about the facts and how to weigh the conflicting testimony.  They’re not really sure whether they can even consider the opinions of the neighbors in making their decision.  Attorneys for the land owner and the neighbors presented detailed legal arguments that have left some of the board members more than a little confused. 

    After all of the evidence had been received, the board began to discuss the case.  The board’s confusion and uncertainty about how to resolve the case was quickly apparent to the board chair.  She knew this was an important case with significant impact for the owner, the neighbors, and the town.  She also knew there was a good chance the board’s decision would be appealed to the courts.  She realized it would be difficult to have a frank discussion among the members with a large crowd of neighbors, the applicant, and the press looking on.  There were also a couple of questions about the law she had for the board’s attorney and was concerned he might not be able to answer candidly in open session.  It occurs to her that they might best resolve all of these issues in closed session. At the next break in the board’s discussion, she says, “Now that we have concluded receipt of all evidence in this matter, I would like to move into closed session for board deliberation and to receive counsel from our attorney about the legal issues involved.”  One of the board members responds, “Great idea.  I would like to second that motion, but I’d first like to find out from our attorney whether this is permissible.” 

    Would it be legal for the board to move into a closed session to conduct its deliberations? What about to talk with their lawyer? Read more »

  • Daily Deposit Requirement

    Authored by: on Monday, January 14th, 2013

    It is summer camp registration time at Fun City’s parks and recreation department. Department staff members are processing hundreds of registrations each day. That also means that the department is receiving hundreds of dollars in daily cash, checks, and credit card payments. The parks and recreation department collects registration payments throughout the year, but the volume is exponentially greater during the two- to three-week period of summer camp registration. The department is located in a satellite building, about three miles from the city hall (which houses the city’s central administration and finance offices.) A parks and recreation staff member normally deposits any moneys collected into the city’s bank account around 4:00pm each day. During the summer camp registration period, however, it is very difficult to collect the moneys, account for them, and deposit them each day. The director wants to install a safe in her office and keep the moneys in the safe until the end of the registration blitz. That way staff can focus on processing the registrations and not worry about dealing with the moneys until after things calm down. The department also needs cash to make change. It will be much easier to keep the cash from registrations for this purpose than to make continued requests to the finance department. Finally, the department collects deposits for equipment rentals. It will be more efficient for the department to retain the deposited funds and simply return the check or cash when the equipment is returned.

    Wanting to respond to recent customer service complaints, the manager supports the parks and recreation director’s idea. However, the city’s finance officer, Debbie Downer, has some concerns. She does not like the idea of all that money sitting in a safe in the parks and recreation department for several weeks. Although the director’s office is locked, the building is accessible at all hours of the day and night by the general public for various recreation activities. She also recalls some law that says that the department can have only $250 on hand at any one time. The manager asks the city attorney to weigh in on the following questions:

  • May the parks and recreation department keep registration moneys it collects (cash and checks) in a safe for several days or weeks? If so, is there any limit on the amount that the department has on hand at any one time?
  • May the department keep checks or cash that it receives as an equipment deposit in a safe and return the funds to the appropriate individual when the equipment is returned?
  • May the department use cash that it has collected to make change? Read more »