Local Governments and their “In House” Counsel Not Immune from E-Discovery Sanctions

There is an old adage among attorneys that “bad facts make bad law.” Along those lines, there may be a tendency to dismiss a recent e-discovery opinion as a case where “bizarre facts make bad e-discovery sanctions.” However, local government attorneys, particularly “in-house” counsel, and the governments they represent, ignore the lessons of Swofford v. Eslinger, No. 6:08-cv-00066-Orl-35DAB (M.D. Fla. Sept. 28, 2009), at their peril. Read more »

Are Adequate-Public-Facility Ordinances Adequate?

UPDATE September 2013:  In December 2012 the North Carolina Supreme Court invalidated the adequate-public-facilities program for public schools in Cabarrus County in the case of Lanvale Properties, LLC v. County of Cabarrus, ___ N.C. ___, 731 S.E.2d 800 (2012).  The county had allowed developers to avoid the consequences of inadequate school capacity by paying voluntary “mitigation fees” to the county to be used to defray the costs of constructing or expanding facilities so as to overcome the inadequacy.  Click here for an analysis of the Lanvale Properties case.  

With respect to many of the adequate-public-facility ordinances adopted by North Carolina counties affecting public schools the answer is apparently no. On December 8, 2009, the North Carolina Court of Appeals in Union Land Owners Ass’n v. County of Union, struck down Union County’s high-profile public-school adequate-public-facility ordinance (APFO) on grounds that the ordinance was not based on appropriate state enabling authority. Similar ordinances have been or are currently enforced in the counties of Cabarrus, Lincoln, Stanly, Franklin, and Currituck, all rapidly growing counties on the fringe of metropolitan areas. Are local governments now prevented from taking the adequacy of public facilities into account in making future zoning and land subdivision decisions? Read more »

Taxation of Affordable Housing in Community Land Trusts

Imagine that you own a home, but not the land on which it sits. You’re a tenant on the land, subject to a 99-year ground lease. As a condition of the ground lease, you are permitted to sell your home only to a household earning less than the community’s median wage, and the ground lease sets a maximum sales price to ensure that the home is affordable to that household. Just down the street, similar homes are selling for considerably more than your price restriction allows. That fact doesn’t bother you, because you knew the terms when you bought the place. Even with the price restrictions, you will earn some equity upon resale, and besides, you got a great deal when you bought it.

Now the tax assessor visits. Should your price-restricted home be valued in the same way as the market-rate home down the street, or should the assessor take your price restriction into consideration? That is the question addressed by the General Assembly in S.L. 2009-481. Read more »

New Property Tax Rules for Military Spouses

Changes in federal law rarely affect local property taxes.  An exception occurred on Veteran’s Day when President Obama signed Public Law 111-97, the Military Spouses Residency Relief Act.   This law allows spouses of active-duty military members to retain residency in their home states for voting and tax purposes regardless of where the military sends them, a benefit that the military members themselves have long possessed under the Servicemembers Civil Relief Act.  Sounds simple, right?  As usual, many devils reside in the details. Read more »

Who Needs Minutes?

Some weeks ago I posted a blog about a mayor’s failure to sign minutes or an ordinance, noting that even when statutes clearly require such a signature (which is not the case in North Carolina), the courts have refused to invalidate the minutes or the ordinance simply because of the mayor’s failure or refusal to sign.  A few days later a local government attorney asked, what if there are no minutes at all – does that affect the validity of actions taken at a meeting?  (No doubt the question was hypothetical.)  The answer is, not automatically. Read more »

What Happens in Closed Session, Stays in Closed Session…Or Does It?

Elected officials and others are usually surprised to learn that there is no general law that prohibits board members from disclosing information obtained in a closed session. Disclosure of specific types of information is prohibited by separate statutes that make such information confidential (whether from a closed session or in any other context).  So long as confidential information is not involved, board members are free to exercise their First Amendment rights to communicate about matters that are discussed in closed session. Could the board adopt an ethics code or other rule prohibiting this? Would a contractual agreement among the board members be legally enforceable? Should the board take other steps to prevent this from happening? Read more »

Proxy Voting

A recurrent question is whether one governing board member may give his or her proxy to another, when the first member cannot attend a meeting, allowing the proxy holder to vote on behalf of the proxy giver.  (The proxy might give specific instructions or leave matters to the discretion of the proxy holder.)  Our answer has always been no. Read more »