Authorized Local Government Financing Programs for Energy Efficiency Improvements and Distributed Generation Renewable Energy Sources on Private Property

Update April 2010. For a more detailed review of this issue see the following article: Addressing Climate Change Locally: North Carolina Local Government Financing Programs for Private Energy Efficiency Projects.

Local governments across the country are becoming increasingly involved in promoting, facilitating, and even funding private efforts to reduce greenhouse gas emissions in response to climate change. To date, local efforts have focused primarily on providing incentives to developers and builders (to encourage sustainable building practices) or to local government electric utility consumers (to reduce energy consumption).

A relatively new initiative, however, is for local governments to provide some form of direct funding for energy efficiency improvements and renewable energy projects on private property. To date, local governments in a handful of states have instituted grant or loan programs to aid households and other private sector entities with energy conservation efforts. During the 2009 legislative session, the General Assembly added North Carolina local governments to the list—authorizing counties and municipalities to establish programs to finance certain renewable energy and energy efficiency projects on private property (energy finance programs).

The energy finance programs authorized by the North Carolina legislation differ in many respects from those authorized in the other states. Furthermore, the legislation is not without complications, leaving many local governments wondering if, and how, such programs may be structured to benefit their communities. This post briefly explains the current legal framework for the energy finance programs in North Carolina—it details the basic contours of the statutory authority, requirements, and limitations, and highlights the potential legal hurdles to establishing the programs in this state. Read more »

Just Say No: The Denial of a Rezoning Petition

The proposed rezoning makes poor planning sense.  The neighbors oppose it.  The petitioner is unpopular.  So the governing board votes down the proposal.  How may the petitioner challenge this action (or lack of action)?  If adoption of a zoning amendment is a legislative action, then how can a petitioner challenge the refusal of the governing board to act?  Or, alternatively, is a refusal to rezone subject to the same judicial review considerations as a challenge to a zoning amendment actually adopted?  The answers to these questions under North Carolina law are just now beginning to emerge. Read more »

Kelo Revisited: Eminent Domain for Economic Development in North Carolina

A New York Times article on Friday covered Pfizer’s announcement that it will be leaving New London, Connecticut, the city at the center of the landmark eminent domain case, Kelo v. City of New London, 545 U.S. 469 (2005). In Kelo, a 5­‑4 majority of the U.S. Supreme Court decided that the Fifth Amendment of the U.S. Constitution permits the condemnation of private property for the purpose of carrying out a comprehensive economic development plan, even if the condemned property is not blighted. The decision permitted the city to condemn Susette Kelo’s New London home to make way for an “urban village” adjacent to Pfizer’s property. According to the article, Pfizer asserts that it had no interest in the condemnation case, but the city touted its comprehensive plan in its efforts to lure the company to New London.

The Supreme Court’s decision proved to be unpopular. In response, a number of states enacted amendments to their state constitutions to restrict or prohibit the exercise of eminent domain for economic development, except to eliminate blight. A similar amendment was proposed in North Carolina during the 2009 session of the General Assembly (House Bill 1268), but it did not make it out of the House. Bills containing constitutional amendments are eligible for consideration in the upcoming short session, so the proposed amendment could be put forward again in 2010. Read more »

Oaths of Office: How Many and By Whom?

Article VI, section 7 of the State Constitution sets out an oath of office that is to be taken by any person elected or appointed to a public office, basically swearing to uphold the constitution and laws of the United States and of North Carolina.  Obviously, any person elected or appointed to an office must take this oath.  But many local officers, particularly those in counties, must take a second oath as well.  Read more »

Politics, Poole, and the Government Attorney-Client Privilege

An interesting government attorney-client privilege issue arose amidst the media hoopla surrounding former governor Mike Easley’s appearance before the state Board of Elections last month.

Ruffin Poole, an attorney who served as executive counsel to then-Gov. Easley, sought to avoid testifying before the board based on attorney-client privilege and on facts submitted in a sealed affidavit. This despite the fact that Easley, through his current attorney, stated he had no objection to Poole’s testimony. Read more »

Disclosing Utility Customer Billing Information

May a local government or public authority that provides utility or public enterprise services disclose its customer billing information in each of the following scenarios? 

(a)  A customer’s relative wants to know if the customer is delinquent on his utility payments;

(b)  A prospective home-buyer wants to know the average utility usage by the current owner-customer;

(c)  A unit wishes to mail its utility bills in post-card format, with billing information visible on the face of the post-card;

(d)  A local university department is compiling utility billing information for a research project;

(e)  A unit wishes to inform a landlord that a tenant-customer is delinquent on his utility payments;

(f)  A customer wants to compare her utility bills to that of all other customers residing in her neighborhood. Read more »

Low Bidder Limbo: When the Low Bid Is Too Low

You’ve just received bids on a construction project estimated (by your engineer) to cost about $2 million.  The lowest bid is for $1.5 million, and the next highest bid is $1.9 million, with the other bids ranging from $2.1 million to $2.3 million.  After reviewing the bids, you think the lowest bidder must have made a mistake, but you can’t tell where the mistake is.  What should you do? Read more »