I Hereby Resign! Wait! I Changed My Mind!

The county commissioners meetings had been getting really contentious. The board was bitterly divided over almost everything, and it had started to get personal. The board chair tried to encourage civility, but one night she just gave up. With board members pounding on the table and citizens shouting from the audience, the chair exclaimed, “That’s it! I have had enough. I hereby resign my position as chair and I resign from this board. You may continue to fight among yourselves but I won’t be a part of it.” And with that, she left the building. Confused by this turn of events, the board turned to the vice-chair, who presided for the remainder of the meeting and completed the items on the agenda.  At the end of the meeting, the board voted to schedule a special meeting several weeks later to consider appointing someone to fill the new vacancy created by the chair’s resignation. The board took no other action regarding the chair’s resignation.

The next day, the chair submitted a letter to the board rescinding her resignation and indicating her intent to continue in office and as chair. The board scheduled an emergency meeting to consult with the county attorney to determine the status of the board chair. Had she, in fact resigned? Must her resignation be accepted? May it be rescinded? May the board appoint a replacement? What exactly is the procedure for resigning from office, and when do such resignations become effective? Read more »

Can a Group Home be Zoned Out of the Neighborhood?

Most zoning ordinances have residential zoning districts. One of these is usually a district where the primary permitted land use is single family detached housing. Multifamily housing and group living arrangements (as well as commercial and industrial land uses) are usually not allowed in these zoning districts.

Use of these zoning districts presents the question of where to draw the boundary between a “single family” residence and a “group” residence. This question is particularly important in determining how to treat small group homes for persons with disabilities, facilities that are designed to provide housing, personal care, and habilitation services in the quiet residential setting of a single family zoning district.

Suppose a zoning ordinance provides that no more than four unrelated individuals are allowed to reside in a “single family” home. Group homes, health care, and institutional uses are allowed in other zoning districts, but not in this district. Under this wording, which of the following group homes would be allowed to locate in that zoning district, assuming they secure the necessary social service license?

Bateman v. Perdue: Implications for Gun Restrictions During a State of Emergency

UPDATE:  An update on this issue is available here.

On March 29, 2012, Senior U.S. District Judge Malcolm Howard ruled on the 2nd Amendment challenges brought against restrictions on dangerous weapons that can be imposed during a declared state of emergency under North Carolina law.  The statutes at issue in the case, Bateman v. Perdue (No. 5:10-CV-265-H (E.D.N.C. filed Mar. 29, 2012) make it a Class 1 misdemeanor for a person to “transport or possess off his own premises any dangerous weapon or substance in any area in which a declared state of emergency exists or within the immediate vicinity of which a riot is occurring;” (G.S. 14-288.7) and authorize the governor and city and county officials to impose restrictions on the “possession, transportation, sale, purchase, storage, and use of dangerous weapons and substances, and gasoline” during a declared state of emergency. (G.S. 14-288.12(b), 14-288.13(b), 14-288.14(a), and G.S. 14-288.15(d)).

The plaintiffs in the case asserted that gun restrictions imposed under these statutes during declared states of emergency denied them of their 2nd Amendment right to keep and bear arms for lawful purposes, including self-defense.  Judge Howard ruled that these statutes were unconstitutional as applied to the plaintiffs, but did not go so far as to strike down the statutes entirely. The state chose not to appeal the decision, so Judge Howard’s ruling is now the final word in North Carolina.  So, what does this mean for local governments?

Read more »

Local Government Authority to Loan Money

It is quiz time again. Which of the following (if any) loan transactions are authorized under North Carolina general law?

a.   A group of citizens has formed a softball league. The local league plans to host a large softball tournament as a fundraiser to support its activities. It lacks the resources to front the costs of the tournament, though. The citizens approach the city council for a $5,000 loan. They intend to repay the city from proceeds generated by the tournament.

b.   A local ABC board wishes to make some capital improvements to one of its stores. The ABC board approaches the town in which it is located for a $25,000 loan to help fund the capital project. The ABC board promises to repay the loan, with interest, within one year.

c.   Due to short-term cash flow issues, an area mental health authority requests that each of the counties in which it is located loan the authority $75,000 to fund its operating expenses. The authority intends to repay the funds to the counties within the next several months. Read more »

Tax Day at the N.C. Court of Appeals (Part 2)

The Court of Appeals issued two opinions dealing with local taxes this week. In yesterday’s post I analyzed the opinion concerning Fayetteville’s privilege license taxes on internet sweepstakes.  Today I analyze the opinion dealing with the denial of a property tax exemption application by Cabarrus County.

Late Property Tax Exemption Applications

The Machinery Act requires that most exemption and exclusion applications be submitted before the end of the listing period, which is usually January 31.  GS 105-282.1 But that same statute allows counties to accept late applications through the end of the calendar year “upon a showing of good cause” by the applicant.

The term “good cause” is not defined, however, meaning that counties had a good bit of discretion when it came time to decide which late applications they accept and which they reject.  Thanks to this week’s Court of Appeals decision, that discretion is now limited. Read more »

Tax Day at the N.C. Court of Appeals (Part 1)

[Update: In 2013 the Court of Appeals reversed its opinion in the Fayetteville case discussed below based on a related N.C. Supreme Court opinion.  See this blog post for more details.]

The N.C. Court of Appeals celebrated tax day a few weeks later than the rest of us: on Tuesday, the judges released two interesting decisions involving local taxes. One concerned internet sweepstakes privilege license taxes levied by Fayetteville, the other focused on the denial of a property tax exemption by Cabarrus County. Although both opinions include long discussions of procedural issues that only a first-year law student could love, they both also offer some important substantive lessons.

The Fayetteville case provides some long-awaited guidance on how we can determine whether a particular privilege license tax is unconstitutionally too high. The Cabarrus County case teaches us that counties need to be careful when rejecting late property tax exemption applications.

My analysis of the Fayetteville case is below. Tomorrow I’ll post again with my analysis of the Cabarrus County case. Read more »

North Carolina’s Four (Yes, Four) Political Parties

UPDATE November 2013: Americans Elect did not prove to be a viable political party and failed to qualify for continued recognition in North Carolina.

No doubt you can name the two biggest political parties officially recognized in North Carolina: just over 2.73 million Tar Heel voters have registered to vote as Democrats and just under 2 million as Republicans. And you may be able to name the third, the Libertarian Party, with its 14,000 members. But what’s that fourth party? Read more »