But I Already Bought the Lot and Had the Plans Made

Malcolm Tucker’s troubles continue. Last year, shortly after he opened his new nightclub, Wally’s-A-Go-Go, the town revoked his permits because a former town staff person had erroneously issued zoning approvals. Although convinced it was a raw deal, Tucker reluctantly concluded that the law just might be on the town’s side so he closed the club and began looking for a new location. He worked hard, diligently trying to do it the right way this time around. But once again he came up short. Read more »

Does the Red Flags Rule (Still) Apply to Local Government Utilities?

As the clock struck midnight on January 1, 2011, enforcement of the federal Red Flags Rule began—a mere three years after its enactment. (The Red Flags Rule comprises federal regulations aimed at preventing or mitigating identity theft associated with certain financial transactions. The Rule requires certain creditors that offer or maintain one or more covered accounts to develop and provide for the continued administration of a written program to detect, prevent, and mitigate identity theft in connection with the opening or maintenance of the accounts. See 16 C.F.R. Part 681 (2007).)

The Federal Trade Commission (FTC) delayed enforcement of the Red Flags Rule five times since the FTC (and other federal agencies) promulgated the Rule. The enforcement delay was due in large part to controversy over the scope of coverage of the Rule. In fact, when it issued its last extension notice in May 2010, the Federal Trade Commission indicated that it was doing so at the behest of several Members of Congress to afford Congress time to consider “legislation that would affect the scope of entities covered by the Rule.”

As Jill Moore reported in a recent post, Congress subsequently enacted the Red Flag Program Clarification Act of 2010, Pub. L. No. 111-319 (to be codified as 15 U.S.C. 1681m(e)(4)) (Clarification Act), which amended the Fair Credit Reporting Act (15 U.S.C. 1681m(e)) (FCRA), to limit the scope of the Red Flags Rule. As Jill pointed out, the Clarification Act is less than completely clear as to which entities are subject (and which are not subject) to the Rule. Her post analyzed the likely impact on public health providers. This post looks at the effect on local government utilities. Read more »

Dismissals for Poor Performance: Legal Implications Under the Personnel Privacy Statutes

Sometimes an employee simply doesn’t measure up. Poor performance is a common basis for dismissal. Under the personnel privacy laws, when a “disciplinary action” is a dismissal, a copy of the final notice of dismissal “setting forth the specific acts or omissions that are the basis of the dismissal” is a public record.  Does this requirement apply when dismissal is based on poor performance? If so, does the release of this information trigger a requirement for a “name clearing” hearing?

This post discusses three specific questions that might arise when an employee is dismissed for poor performance: 1) Is the public agency required to create a written notice of dismissal? 2) If the agency does create a written notice, is the notice subject to public access under the revised personnel privacy laws? 3) If a notice of dismissal for poor performance is made public, could it give rise to a claim under the constitutionally-protected “liberty interest,” triggering the right to a name-clearing hearing? Read more »

Zoning Variances: Is It Better to Ask for Forgiveness than Permission?

UPDATE September 2013:  The 2013 legislation revising the board of adjustment statutes codifies the “self-created-hardship” standard for granting variances that is common in many ordinances.  S.L. 2013 – 126 provides that the hardship may not result from actions taken by the applicant or the property owner. In addition, it expressly provides that “the act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship.”

Bill claims that he had no idea that the new zoning ordinance might affect the privacy fence he had just finished building along his property line. It turns out that the fence is in clear violation of the regulations. Tonight he will present his case for a zoning variance to the board of adjustment. Will the board be sympathetic, or will it be, in Bill’s words, “rigid” in applying the rules, causing him to dismantle the fence? Perhaps more important for our purposes, would a decision to grant a variance in this situation be legally defensible? Read on, friends, for an answer. Read more »

Government Property, Private Leases, and Property Taxes

[UPDATE: S.L. 2018-98  exempts leasehold interests in exempt government property beginning with the 2019 tax year.  As of 2019, leases in government property will no longer be taxable to the lessee.]

Which of the following real property is exempt from local property taxes?

Is a Survey A Public Record? Another Application of the Framework for Analyzing Public Records Questions

Surveys are a valuable tool for local governments and other public agencies. They provide important data that can help agencies make decisions and improve services. Surveys might be designed to get feedback from citizens or employees, or may involve research about facts and conditions that will inform pending agency decisions. Consider a few specific examples: 1) A survey of citizens who use particular services the agency provides to determine which ones they prefer, how they think the service could be improved, or how the agency should finance it (fees or taxes?); 2) A survey of employees asking them to evaluate department heads or the manager, asking them for suggestions on how to improve working conditions or systems in place, or asking about which benefits they value most; or 3) A survey of properties in the area that might be available for a possible economic development project. In each of these scenarios, the public agency and the respondents may assume that their responses and survey results will be confidential. Are they? Read more »

Parking Enforcement: Civil Penalties, Infractions and Wheel Locks

The contents of an envelope tucked under the windshield wiper of your car parked on a city street doesn’t seem as ominous as a citation hand-delivered through your driver’s side window by a law enforcement officer illuminated by the flashing blue lights of her police vehicle. But both may land you in district criminal court.

That’s because, like the violation of many of the motor vehicle laws set forth in Chapter 20, the violation of a local government ordinance regulating parking is an infraction, punishable by a penalty of not more than $50, unless the local government’s parking ordinance provides otherwise. G.S. 14-4(b). Read more »