Help! There’s a Lawyer on my Board!

Local elected officials come from all walks of life.  Farmers, teachers, architects, car dealers, insurance agents, realtors . . . you name the occupation and it’s a sure bet someone with that experience is serving on a city council or a board of county commissioners somewhere in North Carolina.

Board members from different professions create opportunities and challenges for local governments and the attorneys who represent them.  This is especially true when an attorney is elected to a local governing board.  In addition to traditional conflict of interest laws applicable to all elected officials, attorneys serving on local boards need to worry how the North Carolina Rules of Professional Conduct might limit their actions. Read more »

Subdivision Performance Guarantees

So the county granted initial approval for a large residential subdivision.  Now, after completing some (but not all) of the roads and infrastructure, the developer wants final plat approval so she can close on the first round of lot sales.  This may be practical—the cash flow from early lots may support the subsequent infrastructure—but it relies upon a developer’s promise to follow through with adequate remaining improvements.  What if the improvements are not built to standard? What if the economy tumbles and the developer goes bankrupt?  What becomes of those expensive infrastructure needs?

One option is to require from the developer a performance guarantee with financial assurance that ensures subdivision improvements are completed as promised in a timely manner.  If a developer fails to complete the guaranteed improvements, then the local government may call upon the funds of the financial assurance to complete the improvements.  This blog considers the authority for performance guarantees, practical considerations for terms, and questions for administration and enforcement.

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New Design-Build Bridging Construction Method – Design-Build “Lite”

My last post discussed the new design-build construction method authorized by the General Assembly during the 2013 Session.  S.L. 2013-401/H857 created not only a design-build construction contracting process, but also a construction contracting process called design-build bridging.  Enacted as G.S. 143-128.1B, design-build bridging might be thought of as design-build “lite,” meaning it is a somewhat scaled-down version of design-build (“Great taste, less filling” for those who remember those ads).

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Approving Minutes of Meetings You Didn’t Attend

The closed session meeting was contentious. Three of the five board members were ready to fire the manager. They were going off the board and were anxious to push for a vote on the dismissal before the election in November. The final vote was taken in open session and the manager was out. Then, new members took office. At the January meeting, the consent agenda includes approval of the November and December meeting minutes, including the minutes and general account of the closed session about the manager. The three new members are reluctant to vote on the approval of the November minutes. They are not sure whether they can, legally, or should, politically, vote on minutes of a meeting they did not attend. Furthermore, they do not support the firing and do not want to create the impression that they approve of what was done. Are the new members allowed to vote? If so, is there a legal basis for them to be excused from voting based on their concerns about the actions taken?

This blog post reviews the concept of a local government as a continuous entity, the need for and meaning of the approval of minutes, and the ongoing power of boards to create and maintain an accurate record of their proceedings.

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New Design-Build Construction Method – No Local Act Required

Those familiar with local government construction contracting know the drill – put out an RFQ to hire an architect or engineer to design the project and then bid the construction work. But what if a local government wants to hire both its design professional and its contractor at the beginning of the project to work together from conception to completion? How does a local government bid that kind of contract? The General Assembly answered this question during the 2013 session when it enacted legislation authorizing three new contracting methods for public construction projects: design-build (DB), design-build bridging (DBB), and public-private partnerships (P3). S.L. 2013-401/H857[1] (Public Contracts/Construction Methods/DB/P3) accomplishes this in three primary ways:

Mandated Notices in Land Development Regulations

Note:  Post updated 11/19/21 to incorporate statutory updates and make modest clarifications. 

Local governments make hundreds of decisions every day under local development regulations.  Permits are issued or denied.  Enforcement actions are initiated.  Ordinance provisions are interpreted.  Property is rezoned.  Ordinances are amended. 

Do local governments have to provide notice that one of these decisions is pending and solicit comments?  Once the decision is made, who has to be told about it?

Because many of these decisions have a significant impact on landowners, neighbors, and the community, state law requires the local government to provide notice and an opportunity to comment on some pending land use regulatory decisions.  Since there is a limited time for appeals for some types of decisions, state law also requires that written notice of those decisions be provided. 

This post summarizes when state law requires that notices be provided, the time for doing so, and the type of notice required.  A summary table of the requirements is included.  Individual local ordinances can expand upon these minimum requirements, but every city and county is required to at least meet these state requirements.

Security for a Local Government Loan

May a unit pledge town hall as security for an installment finance loan, where the borrowed monies will be used to fund road and sidewalk construction and improvements? If a municipality issues revenue bonds to fund an expansion to its water system, may it repay the loan with general fund monies? May a county pledge local sales and use taxes as security for special obligation bonds used to fund a landfill? May a unit use property tax dollars generated by new development to repay a loan even if it pledges land purchased with the borrowed funds as security for the loan?

This post answers these and other common questions about pledging security for a local government loan. Read more »