Public Comment Period Policies: What’s Legal?

North Carolina state law requires city councils, boards of county commissioners, and local school boards, to provide at least one public comment period per month at a regular meeting. Many boards have adopted policies governing what may be said and done during the public comment period. Some of the restrictions in these policies are clearly legal. Some others…maybe not so much. Read more »

What To Do When Property That Should Be Taxed Isn’t

Local government property tax offices are very good at what they do, with collection rates averaging around 98%.  But nobody’s perfect.  Mistakes happen.

One common mistake is when property that should be taxed isn’t.  Perhaps the tax office never knew the property existed.  Or the tax office had the property on its tax rolls but for some reason failed to levy taxes on that property.

Tax offices have two options to recapture taxes that should have been levied but weren’t.  One is the discovery process in GS 105-312. The other is retroactive billing authorized by the “immaterial irregularity” provision in GS 105-394. The choice between these two remedies depends on what caused the taxes to be missed.

A few years ago I co-authored a property tax bulletin on this topic with Stan Duncan, the recently retired veteran tax official from Henderson County.  That bulletin discusses in detail how these remedies work and how to choose between them.  Today’s blog briefly summarizes that analysis and illustrates how those remedies should be used for one particularly common example of missed taxes: property that lies within a municipality but for some reason is not taxed by that municipality. Read more »

Iran Divestment Act – Be Careful Who You Contract With!

UPDATE:  For those who have been searching the new versions of the statutes and can’t find the Iran Divestment Act based on the statute citations in the legislation, the Revisor of Statutes recodified the IDA.  The new citation is Article 6E of Chapter 147 (G.S. 147-86.55 to 147-86.63).  The FAQ’s linked below have been updated to reflect the recodified statute citations.

During the 2015 legislative session, the North Carolina General Assembly enacted the Iran Divestment Act (S.L. 2015-118; SB455) (“the Act”) which prohibits state agencies and local governments from entering into contracts with entities that the North Carolina State Treasurer has determined are engaged in certain investment activities in the Iranian energy sector. What does this mean for local governments? Read more »

Water and Sewer District’s Impact Fee Powers

UPDATED September 2017: As of October 1, 2017, the state legislature has further defined (and limited) the impact fee powers of a County Water and Sewer District. Click here for more info on the new law.

An impact fee is a charge imposed on new or proposed development, the revenue generated from which is used to fund capital projects necessitated (or at least prompted) by the development. A local government typically assesses an impact fee as part of its development approval process. Paying the fee is often a condition of receiving a building permit or certificate of occupancy.

North Carolina counties and municipalities have specific statutory authority to require subdivision developers to pay fees in lieu for certain road and recreational land infrastructure projects that benefit the new development. See G.S. 160A-372 (municipalities); G.S. 153A-331 (counties). There is no specific authority to charge impact fees under general law, though, at least to fund general government infrastructure or services. (A handful of units have local act authority to assess impact fees for certain purposes.) And North Carolina courts have repeatedly refused to hold that impact fee authority is implied from a unit’s regulatory powers. See, e.g., Lanvale Properties, LLC v. County of Cabarrus, 366 N.C. 142 (2012); Union Land Owners Ass’n v. County of Union, 201 N.C. App. 374 (2009), disc. rev. den’d, 364 N.C. 442 (2010); Amward Homes, Inc. v. Town of Cary, 206 N.C. App. 38 (2010), aff’d by an equally divided court, 365 N.C. 305 (2011). As I discuss here and here, it is an open question whether or not  municipalities have authority to assess impact fees for water and sewer purposes, pursuant to their public enterprise powers.

In addition to counties and municipalities, there are a number of limited-purpose local government entities that are authorized to provide certain public enterprise services. Limited-purpose governments (referred to as public authorities in the Local Government Budget and Fiscal Control Act) often are established to serve regional populations that cut across municipal or county boundaries. One type of limited-purpose government that is authorized to provide water and sewer services is a county water and sewer district. A county board of commissioners may create a county water and sewer district to provide services to all or a portion of the properties in the county. (Municipal territory may not be included unless consented to by a municipality’s governing board.) Once formed, a water and sewer district is an independent legal entity from the county government. The members of the county board of commissioners serve as the water and sewer district’s governing board, though. The district’s powers and duties are enumerated in Article 6 of Chapter 162A of the North Carolina General Statutes.

The statutory language authorizing a water and sewer district to assess rates and charges for its utility services is broader than that for a county or municipality. And there is a much stronger argument that a water and sewer district (and, by analogy, a water and sewer authority (G.S. 162A-9); metropolitan water district (G.S. 162A-49); metropolitan sewerage district (G.S. 162A-72); metropolitan water and sewerage district (G.S. 162A-85.13)) authority to impose impact fees than there is for a municipality or county. However, as a recent court of appeals cases out of New Hanover County illustrate, that does not mean that any of these entity’s impact fee authority is unlimited. Read more »

Attachment and Garnishment 101

In anticipation of next week’s attachment and garnishment webinar, today’s post offers a summary of the basic rules governing this extremely effective and popular tax collection remedy.  Join us at the webinar for a more in-depth discussion of the A&G procedure and for lots of practical tips from experienced collectors.

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What Does the Farm Exemption from Zoning Regulation Include?

Update Note:  The General Assembly in 2017 amended these statutes. S.L. 2017-108 removed use of a USDA Farm Identification number as a means of establishing whether property is used as a farm. It also requires that a farm have either a farmer sales tax exemption or that the property be enrolled in the use value property tax program in order for agritourism to qualify as a farm use for purposes of exemption from county zoning. Also a residential use is exempt only if occupied by the farm owner, lessee, or operator.  Also see Hampton v. Cumberland County, COA16-704, Dec. 5, 2017, where the court of appeals applied the farm exemption statutes prior to their amendment to a shooting range.

When the legislature in 1959 extended zoning powers to counties, it was determined that farming should not be subject to county zoning regulation. Cities had been using zoning since 1923 to address “urban” issues such as the compatibility of adjacent land uses.  Given the rural nature of unincorporated areas of counties in 1959, along with the considerable political influence of the agricultural community, exempting farming from county zoning regulation was a relatively noncontroversial policy choice.

That policy choice still applies and is still relatively noncontroversial. Counties can elect to use their zoning powers to regulate residential, commercial, and industrial land uses, but not farming.

A question that is increasingly arising around the state, however, is just what is “farming” that is exempt from county zoning regulation? It clearly includes growing crops and farm animals, but does it also include shooting ranges?  Garden shops?  Rodeos?  Wedding and special event facilities?  Are these land uses “farming” when it comes to zoning regulation? Read more »

Find a Pig? Local Government Responsibilities Related to Found Livestock

It is a crime to allow livestock to run at-large in North Carolina, with the exception of some remarkable horses on the Outer Banks. G.S. 68-16; G.S. 68-42. What’s a local government’s role with respect to these wandering animals? State law sets out some requirements that apply and some procedures that must be followed when a local government or any other person impounds found livestock. Below is a summary of this body of law as well as a brief discussion of the important changes that were enacted this past legislative session.

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