ARTICLE 1. Definitions and Statutory Construction.

Sec.

§ 160A-1. Application and meaning of terms.

Unless otherwise specifically provided, or unless otherwise clearly required by the context, the words and phrases defined in this section shall have the meaning indicated when used in this Chapter.

  1. "Charter" means the entire body of local acts currently in force applicable to a particular city, including articles of incorporation issued to a city by an administrative agency of the State, and any amendments thereto adopted pursuant to 1917 Public Laws, Chapter 136, Subchapter 16, Part VIII, sections 1 and 2, or Article 5, Part 4, of this Chapter.
  2. "City" means a municipal corporation organized under the laws of this State for the better government of the people within its jurisdiction and having the powers, duties, privileges, and immunities conferred by law on cities, towns, and villages. The term "city" does not include counties or municipal corporations organized for a special purpose. "City" is interchangeable with the terms "town" and "village," is used throughout this Chapter in preference to those terms, and shall mean any city as defined in this subdivision without regard to the terminology employed in charters, local acts, other portions of the General Statutes, or local customary usage. The terms "city" or "incorporated municipality" do not include a municipal corporation that, without regard to its date of incorporation, would be disqualified from receiving gasoline tax allocations by G.S. 136-41.2(a), except that the end of status as a city under this sentence shall not affect the levy or collection of any tax or assessment, or any criminal or civil liability, and shall not serve to escheat any property until five years after the end of such status as a city, or until September 1, 1991, whichever comes later.
  3. "Council" means the governing board of a city. "Council" is interchangeable with the terms "board of aldermen" and "board of commissioners," is used throughout this Chapter in preference to those terms, and shall mean any city council as defined in this subdivision without regard to the terminology employed in charters, local acts, other portions of the General Statutes, or local customary usage.
  4. "General law" means an act of the General Assembly applying to all units of local government, to all cities, or to all cities within a class defined by population or other criteria, including a law that meets the foregoing standards but contains a clause or section exempting from its effect one or more cities or all cities in one or more counties.
  5. "Local act" means an act of the General Assembly applying to one or more specific cities by name, or to all cities within one or more specifically named counties. "Local act" is interchangeable with the terms "special act," "public-local act," and "private act," is used throughout this Chapter in preference to those terms, and shall mean a local act as defined in this subdivision without regard to the terminology employed in charters, local acts, or other portions of the General Statutes.
  6. "Mayor" means the chief executive officer of a city by whatever title known.
  7. "Publish," "publication," and other forms of the verb "to publish" mean insertion in a newspaper qualified under G.S. 1-597 to publish legal advertisements in the county or counties in which the city is located.
  8. "Rural Fire Department" means, for the purpose of Articles 4A or 14 of this Chapter, a bona fide department which, as determined by the Commissioner of Insurance, is classified as not less than class "9" in accordance with rating methods, schedules, classifications, underwriting rules, bylaws or regulations effective or applied with respect to the establishment of rates or premiums used or charged pursuant to Article 36 or Article 40 of Chapter 58 of the General Statutes, and which operates fire apparatus and equipment of the value of five thousand dollars ($5,000) or more; but it does not include a municipal fire department.

History

(1971, c. 698, s. 1; 1973, c. 426, s. 3; 1983, c. 636, s. 17.1; 1985 (Reg. Sess., 1986), c. 934, s. 1.)

Local Modification. - Guilford: 2017-210, s. 1(b) (applicable to notices published on or after December 1, 2017); Union: 1983, c. 150; (As to Chapter 160A) Cabarrus: 1985, c. 194, s. 3.

Editor's Note. - Session Laws 1983, c. 636, which amended this section, in s. 37.1, as amended by Session Laws 1983, c. 768, s. 25, provided: "The General Assembly intends by this act to repeal all acts and provisions of acts that modify the application to particular cities and towns of Parts 2 and 3 of Article 4A of Chapter 160A of the General Statutes or that exempt particular cities or towns from the application of either or both of those two Parts. Therefore, all such acts and provisions of acts, even if not specifically listed and repealed in Sections 26 through 35.4 of this act, are repealed. Neither this section nor Sections 26 through 35.4 of this act shall affect any annexation in progress on the dates of ratification of this act under any of the repealed or amended sections."

Section 38 of Session Laws 1983, c. 636 provided: "This act shall be effective with respect to all annexations where resolutions of intent are adopted on or after the date of ratification of this act, except that Sections 36 and 37 shall become effective with respect to all annexations where resolutions of intent are adopted on or after July 1, 1984, Sections 25.1 through 35.5 and Section 37.1 are effective upon ratification and Section 25 shall become effective as provided in that section. No annexation where a resolution of intent was adopted prior to the date of ratification of this act shall be affected by this act except as provided in Section 25."

The act was ratified June 29, 1983.

Legal Periodicals. - For note, "Tax Increment Financing in North Carolina: The Myth of the Countermajoritarian Difficulty," see 83 N.C. L. Rev. 1526 (2005).

For article, "Do North Carolina Governments Need Home Rule," see 84 N.C. L. Rev. 1983 (2006).

CASE NOTES

Constitutionality. - See In re Annexation Ordinance No. 1219, 62 N.C. App. 588, 303 S.E.2d 380, cert. denied and appeal dismissed, 309 N.C. 820, 310 S.E.2d 351 (1983).

Enactment Held a "Local Act". - Under this Chapter, Session Laws 1967, c. 506, which permits the City of Durham to employ the "quick-take" condemnation procedure provided by Article 9 of Chapter 136 of the General Statutes, is a local act and a part of the charter of the City of Durham. City of Durham v. Manson, 285 N.C. 741, 208 S.E.2d 662 (1974).

Session Laws 1967, c. 506, relating to municipal eminent domain procedures, is a legislative act which applies specifically to Durham by name, and is, therefore, a "local act" as that term is defined in subdivision (5) of this section, and as such it is subject to the applicable provisions of this Chapter. City of Durham v. Manson, 21 N.C. App. 161, 204 S.E.2d 41, modified and aff'd, 285 N.C. 741, 208 S.E.2d 662 (1974).

Time Limitations. - Landowner's challenges to zoning ordinance amendments were time-barred under the two-month limitations period of G.S. 160A-364.1; even if an amendment was adopted inconsistent with the notice requirements of G.S. ch. 160A, an action which attacked the validity of the amendment but was commenced in more time than the statutory period from the adoption of the amendment was barred. Templeton v. Town of Boone, 208 N.C. App. 50, 701 S.E.2d 709 (2010).

Housing authority provided a governmental function and was entitled to rely on doctrine of governmental immunity as it related to a personal injury suit brought against it; G.S. 160A-485(a) did not control whether or not the housing authority had legal capacity to waive its immunity by buying insurance, but authority could have accepted liability to the extent of insurance purchased, and the case was therefore remanded since the appellate court was unable to discern whether the trial court's denial of the housing authority's motion to dismiss was premised upon the housing authority's insurance coverage. Evans v. Hous. Auth., 359 N.C. 50, 602 S.E.2d 668 (2004).

Cited in In re University of N.C. 300 N.C. 563, 268 S.E.2d 472 (1980); Thrash v. City of Asheville, 95 N.C. App. 457, 383 S.E.2d 657 (1989); Garrity v. Morrisville Zoning Bd. of Adjustment, 115 N.C. App. 273, 444 S.E.2d 653 (1994); Disher v. Weaver, 308 F. Supp. 2d 614 (M.D.N.C. 2004); Boyd v. Robeson County, 169 N.C. App. 460, 621 S.E.2d 1 (2005), cert. denied, 359 N.C. 629, 615 S.E.2d 866 (2005); City of Asheville v. State, 369 N.C. 80, 794 S.E.2d 759 (2016).


§ 160A-2. Effect upon prior laws.

Nothing in this Chapter shall repeal or amend any city charter in effect as of January 1, 1972, or any portion thereof, unless this Chapter or a subsequent enactment of the General Assembly shall clearly show a legislative intent to repeal or supersede all local acts. The provisions of this Chapter, insofar as they are the same in substance as laws in effect as of December 31, 1971, are intended to continue such laws in effect and not to be new enactments. The enactment of this Chapter shall not require the readoption of any city ordinance enacted pursuant to laws that were in effect before January 1, 1972, and are restated or revised herein. The provisions of this Chapter shall not affect any act heretofore done, any liability incurred, any right accrued or vested, or any suit or prosecution begun or cause of action accrued as of January 1, 1972.

History

(1971, c. 698, s. 1.)

CASE NOTES

Specific legislative intent of this Chapter was not to repeal local acts by implication, but to save them. City of Durham v. Manson, 285 N.C. 741, 208 S.E.2d 662 (1974).

It was the express intent of the legislature to retain local acts unless otherwise specifically indicated. City of Durham v. Manson, 21 N.C. App. 161, 204 S.E.2d 41, modified and aff'd, 285 N.C. 741, 208 S.E.2d 662 (1974).

This section manifests the legislative concern that certain prior laws should be preserved. City of Durham v. Manson, 21 N.C. App. 161, 204 S.E.2d 41, modified and aff'd, 285 N.C. 741, 208 S.E.2d 662 (1974).

This section is made more meaningful by reference to G.S. 160A-1, wherein the definitions of "charter" and "local act" are contained. City of Durham v. Manson, 21 N.C. App. 161, 204 S.E.2d 41, modified and aff'd, 285 N.C. 741, 208 S.E.2d 662 (1974).

Chapter 506 of Session Laws 1967, which became a part of the charter of the City of Durham, was not repealed by this Chapter. City of Durham v. Manson, 285 N.C. 741, 208 S.E.2d 662 (1974).

Applied in Guilford County v. Boyan, 42 N.C. App. 627, 257 S.E.2d 463 (1979).

Cited in Town of Mt. Olive v. Price, 20 N.C. App. 302, 201 S.E.2d 362 (1973).


§ 160A-3. General laws supplementary to charters.

  1. When a procedure that purports to prescribe all acts necessary for the performance or execution of any power, duty, function, privilege, or immunity is provided by both a general law and a city charter, the two procedures may be used as alternatives, and a city may elect to follow either one.
  2. When a procedure for the performance or execution of any power, duty, function, privilege, or immunity is provided by both a general law and a city charter, but the charter procedure does not purport to contain all acts necessary to carry the power, duty, function, privilege, or immunity into execution, the charter procedure shall be supplemented by the general law procedure; but in case of conflict or inconsistency between the two procedures, the charter procedure shall control.
  3. When a power, duty, function, privilege, or immunity is conferred on cities by a general law, and a charter enacted earlier than the general law omits or expressly denies or limits the same power, duty, function, privilege or immunity, the general laws shall supersede the charter.

History

(1971, c. 698, s. 1.)

Local Modification. - Town of Badin: 1989 (Reg. Sess., 1990), c. 894, s. 1, as amended by 2015-253, s. 2; village of Bald Head Island: 1985, c. 156.

CASE NOTES

The provisions of a municipal charter are supplemented by the General Statutes of the State. Parsons v. Wright, 223 N.C. 520, 27 S.E.2d 534 (1943), decided prior to enactment of this section.

City Charter Superseded by State Statute. - Summary judgment was properly awarded to a city and its officials in an action by property owners challenging an annexation because, pursuant to G.S. 160A-3(c), the statutory provision establishing involuntary annexations superseded a city charter provision permitting only voluntary annexations. Brown v. City of Winston-Salem, 171 N.C. App. 266, 614 S.E.2d 599 (2005).

Cited in Moores v. Greensboro Minimum Hous. Stds. Comm'n, 198 N.C. App. 384, 679 S.E.2d 480 (2009); Disher v. Weaver, 308 F. Supp. 2d 614 (M.D.N.C. 2004).


§ 160A-4. Broad construction.

It is the policy of the General Assembly that the cities of this State should have adequate authority to execute the powers, duties, privileges, and immunities conferred upon them by law. To this end, the provisions of this Chapter and of city charters shall be broadly construed and grants of power shall be construed to include any additional and supplementary powers that are reasonably necessary or expedient to carry them into execution and effect: Provided, that the exercise of such additional or supplementary powers shall not be contrary to State or federal law or to the public policy of this State.

History

(1971, c. 698, s. 1.)

Local Modification. - Town of Badin: 1989 (Reg. Sess., 1990), c. 894, s. 1, as amended by 2015-253, s. 2.

Legal Periodicals. - For article, "Economic Development Incentives and North Carolina Local Governments: A Framework for Analysis," see 91 N.C. L. Rev. 2021 (2013).

CASE NOTES

Editor's Note. - Some of the cases cited below were decided prior to enactment of this section.

Legislative Mandate. - The North Carolina Supreme Court treats the language in this section as a legislative mandate to construe in a broad fashion the provisions and grants of power contained in this Chapter. Homebuilders Ass'n v. City of Charlotte, 336 N.C. 37, 442 S.E.2d 45 (1994).

Mandate of G.S. 160A-4 Has Replaced "Dillon's Rule." - Narrow rule of statutory construction entitled "Dillon's Rule," used when interpreting municipal powers, has been replaced by the mandate of G.S. 160A-4; and the language of Chapter 160A must be construed in favor of extending powers to a municipality where there is an ambiguity in the authorizing language, or the powers clearly authorized reasonably necessitate additional and supplementary powers to carry them into execution and effect. BellSouth Telecomms., Inc. v. City of Laurinburg, 168 N.C. App. 75, 606 S.E.2d 721, cert. denied, - N.C. - , 615 S.E.2d 660, cert. denied, 359 N.C. 629, - S.E.2d - (2005).

Construction with G.S. 160A-301. - Zoning amendment, which addressed the number of vehicles that could be parked on a private lot, did not address the same subject as G.S. 160A-301, which governed ordinary parking on public vehicular areas; therefore, G.S. 160A-301 is not a more "specific" statute that renders the provisions of G.S. 160A-4 inapplicable because it simply addresses a different subject. Patmore v. Town of Chapel Hill N.C. 233 N.C. App. 133, 757 S.E.2d 302, review denied, 367 N.C. 519, 758 S.E.2d 874, 2014 N.C. LEXIS 447 (2014).

A municipality may not exercise any power not granted to it, and possesses no inherent authority to exercise powers either expressly or impliedly prohibited by statute. Porsh Bldrs., Inc. v. City of Winston-Salem, 302 N.C. 550, 276 S.E.2d 443 (1981).

Municipal Powers Must Be Expressly Granted or Implied from Express Grants. - A municipal corporation is a political subdivision of the State and can exercise only such powers as are granted in express words, or those necessary or fairly implied or incident to the powers expressly conferred, or those essential to the accomplishment of the declared objects and purposes of the corporation. Stephenson v. City of Raleigh, 232 N.C. 42, 59 S.E.2d 195 (1950).

A municipal corporation has only such powers as are granted to it by the General Assembly in its specific charter or by the general laws of the State applicable to all municipal corporations, and the powers granted in its charter will be construed together with those given under the General Statutes. Laughinghouse v. City of New Bern, 232 N.C. 596, 61 S.E.2d 802 (1950); Starbuck v. Town of Havelock, 252 N.C. 176, 113 S.E.2d 278 (1960).

A municipal corporation is a creature of the General Assembly and has no inherent power, but can exercise such powers as are expressly conferred by the General Assembly or such as are necessarily implied by those expressly given. State v. McGraw, 249 N.C. 205, 105 S.E.2d 659 (1958).

A municipal corporation has only such powers as are granted to it by the General Assembly in its specific charter or by the general laws of the State applicable to all municipal corporations, or such powers as are necessarily implied by those given. State v. Hord, 264 N.C. 149, 141 S.E.2d 241 (1965).

An incorporated city or town is an agency created by the State. It has no governmental power or authority except such as has been granted to it by the legislature, expressly or by necessary implication from the powers expressly conferred. State v. Furio, 267 N.C. 353, 148 S.E.2d 275 (1966).

Municipal corporations are created by legislative enactment and possess only those powers conferred in the express language of a statute and those necessarily implied by law therefrom. Porsh Bldrs., Inc. v. City of Winston-Salem, 302 N.C. 550, 276 S.E.2d 443 (1981).

What Municipal Powers Are Implied. - The implied powers of a municipality are those which are necessarily or fairly implied in or incident to the powers expressly granted or essential to the accomplishment of the purposes of the corporation. Green v. Kitchin, 229 N.C. 450, 50 S.E.2d 545 (1948), commented on in 27 N.C.L. Rev. 500 (1949).

A municipal corporation is authorized by implication to do an act if the doing of such act is necessarily or fairly implied in or incident to the powers expressly granted, or is essential to the accomplishment of the declared objects and purposes of the corporation. Harrelson v. City of Fayetteville, 271 N.C. 87, 155 S.E.2d 749 (1967).

Municipal corporations have no inherent police powers and can exercise only those conferred, which powers are subject to strict construction. Kass v. Hedgepeth, 226 N.C. 405, 38 S.E.2d 164 (1946).

An incorporated city or town has no inherent police powers. State v. Furio, 267 N.C. 353, 148 S.E.2d 275 (1966).

A city or town in this State has no inherent police power. It may exercise only such powers as are expressly conferred upon it by the General Assembly or as are necessarily implied from those expressly so conferred. Town of Conover v. Jolly, 277 N.C. 439, 177 S.E.2d 879 (1970).

Town had no Authority to Impose Impact Fees. - Water and sewer "impact fee" ordinances were invalid because the Public Enterprise Statutes failed to empower the town to impose impact fees for future services; the enabling statutes clearly and unambiguously empowered the town to charge for the contemporaneous use of water and sewer services, not to collect fees for future discretionary spending, and because the legislature alone controlled the extension of municipal authority, the ordinances exceeded the powers delegated to the town. Quality Built Homes, Inc. v. Town of Carthage, 369 N.C. 15, 789 S.E.2d 454 (2016).

No Power to Spend Tax Revenues Absent Authorization. - A municipality is a creature of the State, with the powers prescribed by the statute and those necessarily implied by law, and no other; therefore a city or town cannot make a rightful outlay of its tax revenues unless the outlay is explicitly or implicitly authorized by a statute conforming to the Constitution. Horner v. Chamber of Commerce, 231 N.C. 440, 57 S.E.2d 789 (1950), aff'd, 235 N.C. 77, 68 S.E.2d 660 (1952); Wilson v. City of High Point, 238 N.C. 14, 76 S.E.2d 546 (1953).

A municipal corporation has no authority to waive its immunity from tort liability in performance of its governmental functions. Stephenson v. City of Raleigh, 232 N.C. 42, 59 S.E.2d 195 (1950).

Municipal Authority to Charge User Fees. - Applying the broad rule of construction of this section, city possessed the authority to charge regulatory user fees as an additional and supplementary power that was reasonably necessary or expedient to carry a regulatory program into execution and effect. Homebuilders Ass'n v. City of Charlotte, 336 N.C. 37, 442 S.E.2d 45 (1994).

Absent Statutory Authority. - In the absence of statutory authority, a municipality has no authority to contract away or waive its governmental immunity in respect to torts committed in the exercise of its governmental function. Valevais v. City of New Bern, 10 N.C. App. 215, 178 S.E.2d 109 (1970).

Ordinances Having Effect Outside Territorial Limits of Corporation. - While the legislature may confer upon a municipal corporation the power to enact ordinances having effect in territory contiguous to the corporation, in the absence of the grant of such power a city or town may not, by its ordinance, prohibit acts outside its territorial limits or impose criminal liability therefor. State v. Furio, 267 N.C. 353, 148 S.E.2d 275 (1966).

Statutory delegations of power to municipalities should be strictly construed, resolving any ambiguity against the corporation's authority to exercise the power. Porsh Bldrs., Inc. v. City of Winston-Salem, 302 N.C. 550, 276 S.E.2d 443 (1981).

Any Doubts Must Be Resolved Against Municipality. - A municipality has no inherent police powers, but can exercise only those conferred by the State, and any reasonable doubt concerning such powers is resolved against it. State v. Dannenberg, 150 N.C. 799, 63 S.E. 946 (1909).

Discretion as to Accomplishment of Municipal Purposes. - A municipal corporation has only those powers expressly granted in its charter and by the general law, construing the acts together, and those powers reasonably implied in or incident to the granted powers which are necessary to effect the fair intent and purpose of its creation; however, it may exercise a sound discretion as to the means by which the purposes of its creation may be accomplished. Riddle v. Ledbetter, 216 N.C. 491, 5 S.E.2d 542 (1939).

A municipal corporation may exercise all the powers within the fair intent and purpose of its creation which are reasonably necessary to give effect to the powers expressly granted, and in doing this it may exercise discretion as to the means to the end. Keeter v. Town of Lake Lure, 264 N.C. 252, 141 S.E.2d 634 (1965).

Although the power to impose a privilege license tax must be construed broadly to include incidental powers, a privilege license tax, standing alone, is only a tax and does not carry with it any powers wholly unrelated to its imposition or administration. Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 162 N.C. App. 603, 592 S.E.2d 205, cert. denied, 358 N.C. 543, 599 S.E.2d 43 (2004).

The courts will not inquire into the motives which prompt a municipality's legislative body to enact an ordinance which is valid on its face. Clark's Greenville, Inc. v. West, 268 N.C. 527, 151 S.E.2d 5 (1966).

Contracts with Firefighters Not Ultra Vires. - As the legislature expressly authorized municipal corporations to fix salaries or other compensation or to approve and adopt pay plans to compensate city employees, and thus, the city could legally form contracts for the services of firefighters and offer a plan for accumulated vacation leave as a benefit under the contracts, even though they may have been executed improperly, any contracts entered into by the city through its agents to compensate firefighters with accumulated vacation leave were not ultra vires the city. Pritchard v. Elizabeth City, 81 N.C. App. 543, 344 S.E.2d 821, cert. denied, 318 N.C. 417, 349 S.E.2d 598 (1986).

Contract with Town Manager Not Ultra Vires. - The execution of an employment contract providing severance pay to an at-will town manager was not ultra vires. Myers v. Town of Plymouth, 135 N.C. App. 707, 522 S.E.2d 122 (1999).

Eminent Domain Power of a City. - City lawfully exercised its eminent domain power because, consistent with the mandates of G.S. 160A-4 and G.S. 160A-312, the city could acquire property by condemnation to establish a gas transmission and distribution system, even in the absence of a concrete, immediate plan to furnish gas services to its citizens as the acquisition was for a public use by the city in compliance with G.S. 160A-240.1 and G.S. 40A-3(b). Town of Midland v. Morris, 209 N.C. App. 208, 704 S.E.2d 329, review denied, 365 N.C. 198, 710 S.E.2d 3, 2011 N.C. LEXIS 245, dismissed and review denied, 365 N.C. 198, 710 S.E.2d 1, 2011 N.C. LEXIS 265 (2011), review denied, 365 N.C. 192, 707 S.E.2d 237, 2011 N.C. LEXIS 228 (2011).

City had the authority to allow the city tax collector to assess zoning compliance as part of the administration of the business privilege license tax and to deny a business privilege license to a sexually oriented business because the business sought to operate in violation of a zoning ordinance. Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 162 N.C. App. 603, 592 S.E.2d 205, cert. denied, 358 N.C. 543, 599 S.E.2d 43 (2004).

Authority to Impose Water And Sewer Fees. - City was entitled to partial summary judgment as a matter of law because an act transferred the authority of the Board of Light and Water to collect water and sewer fees for services "to be furnished" to the city, and thus, there was no genuine issue as to any material fact with respect to the city's legislative authority to charge those fees to developers for their developments; the General Assembly was not required to use the word "transfer" in order to transfer the powers of the Board. JVC Enters., LLC v. City of Concord, - N.C. - , - S.E.2d - (Mar. 12, 2021).

Applied in City of Durham v. Herndon, 61 N.C. App. 275, 300 S.E.2d 460 (1983); River Birch Assocs. v. City of Raleigh, 326 N.C. 100, 388 S.E.2d 538 (1990); Town of Midland v. Morris, 209 N.C. App. 208, 704 S.E.2d 329, review denied, 365 N.C. 198, 710 S.E.2d 3, 2011 N.C. LEXIS 245, dismissed and review denied, 365 N.C. 198, 710 S.E.2d 1, 2011 N.C. LEXIS 265 (2011), review denied, 365 N.C. 192, 707 S.E.2d 237, 2011 N.C. LEXIS 228 (2011).

Cited in Smith v. Keator, 285 N.C. 530, 206 S.E.2d 203 (1974); In re Wilkins, 294 N.C. 528, 242 S.E.2d 829 (1978); Town of West Jefferson v. Edwards, 74 N.C. App. 377, 329 S.E.2d 407 (1985); Grace Baptist Church v. City of Oxford, 320 N.C. 439, 358 S.E.2d 372 (1987); Quality Water Supply, Inc. v. City of Wilmington, 97 N.C. App. 400, 388 S.E.2d 608 (1990); Ricks v. Town of Selma, 99 N.C. App. 82, 392 S.E.2d 437 (1990); Bowers v. City of High Point, 339 N.C. 413, 451 S.E.2d 284 (1994); Maready v. City of Winston-Salem, 342 N.C. 708, 467 S.E.2d 615 (1996); Durham Land Owners Ass'n v. County of Durham, 177 N.C. App. 629, 630 S.E.2d 200 (2006); Five C'S, Inc. v. County of Pasquotank, 195 N.C. App. 410, 672 S.E.2d 737 (2009); Amward Homes, Inc. v. Town of Cary, 206 N.C. App. 38, 698 S.E.2d 404 (2010); Lanvale Props., LLC v. County of Cabarrus, 366 N.C. 142, 731 S.E.2d 800 (2012); King v. Town of Chapel Hill, 367 N.C. 400, 758 S.E.2d 364 (2014).

Opinions of Attorney General

Condemnation of Property to Improve Road. - A proposed escrow agreement between a town and various property owners to collect and dispose of funds in order to acquire right of way, by condemnation or otherwise, in order to widen and improve a road was not prohibited by this section or public policy. See opinion of Attorney General to William C. Coward, Coward, Hicks & Siler, P.A., 2000 N.C. AG LEXIS 28 (4/10/2000).

§ 160A-4.1: Repealed by Session Laws 2019-111, s. 2.6(b), as amended by Session Laws 2020-3, s. 4.33(a), and Session Laws 2020-25, s. 51(a), (b), (d), effective June 19, 2020.

History

(2009-436, s. 2; 2010-180, s. 11(b); repealed by 2019-111, s. 2.6(b), as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020.)

Editor's Note. - Former G.S. 160A-4.1 pertained to the notice of new fees and fee increases; public comment period.

Session Laws 2019-111, s. 2.8, is a severability clause.

Session Laws 2019-111, s. 3.2 provided for the delayed repeal of this section, effective January 1, 2021, and applicable to local government development regulation decisions made on or after that date, and further provided that "Part II of this act clarifies and restates the intent of existing law and applies to ordinances adopted before, on, and after the effective date." Session Laws 2020-3, s. 4.33(a), extended the delayed repeal of this section, making it effective August 1, 2021, and applicable to local government development regulation decisions made on or after that date. Session Laws 2020-25, s. 51(a), (d), repealed Session Laws 2019-111, s. 3.2, and Session Laws 2020-3, s. 4.33, effective June 19, 2020.

Session Laws 2020-3, s. 5, is a severability clause.

Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:

"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or

"(2) July 1, 2021."

Effect of Amendments. - Session Laws 2010-180, s. 11(b), effective February 1, 2011, deleted "Electronic" from the beginning of the section catchline; in the introductory paragraph in subsection (a), in the first sentence, substituted "A city shall provide notice to interested parties of the imposition" for "If a city has a Web site maintained by one or more of its employees, the city shall provide notice of the imposition" and deleted "on the city's Web site" following "Part 2 of Article 19 of this Chapter," and added the last sentence; added subdivisions (a)(1) through (a)(4); and added subsection (a1).

§ 160A-5. Statutory references deemed amended to conform to Chapter.

Whenever a reference is made in another portion of the General Statutes or any local act, or any city ordinance, resolution, or order, to a portion of Chapter 160 of the General Statutes that is repealed or superseded by this Chapter, the reference shall be deemed amended to refer to that portion of this Chapter which most nearly corresponds to the repealed or superseded portion of Chapter 160.

History

(1971, c. 698, s. 1; 1973, c. 426, s. 2.)

CASE NOTES

Applied in City of Durham v. Manson, 285 N.C. 741, 208 S.E.2d 662 (1974).


ARTICLE 1A. Municipal Board of Control.

§§ 160A-6 through 160A-10: Repealed by Session Laws 1981 (Regular Session, 1982), c. 1191, s. 63.

Editor's Note. - Session Laws 1981 (Reg. Sess., 1982), c. 1191, s. 64, provided that the repeal of this Article did not affect the validity of any corporate charter issued by the Municipal Board of Control prior to the effective date thereof. Section 65 of the act provided that the repeal became effective October 1, 1982, except that an order incorporating a city which was entered prior to October 1, 1982, but subject to a referendum to be held under G.S. 160A-9.3 between October 1, 1982, and January 1, 1983, would be valid notwithstanding the abolition of the Municipal Board of Control.

ARTICLE 2. General Corporate Powers.

Sec.

§ 160A-11. Corporate powers.

The inhabitants of each city heretofore or hereafter incorporated by act of the General Assembly or by the Municipal Board of Control shall be and remain a municipal corporation by the name specified in the city charter. Under that name they shall be vested with all of the property and rights in property belonging to the corporation; shall have perpetual succession; may sue and be sued; may contract and be contracted with; may acquire and hold any property, real and personal, devised, sold, or in any manner conveyed, dedicated to, or otherwise acquired by them, and from time to time may hold, invest, sell, or dispose of the same; may have a common seal and alter and renew the same at will; and shall have and may exercise in conformity with the city charter and the general laws of this State all municipal powers, functions, rights, privileges, and immunities of every name and nature whatsoever.

All documents required or permitted by law to be executed by municipal corporations will be legally valid and binding in this respect when a legible corporate stamp, which is a facsimile of its seal, is used in lieu of an imprinted or embossed corporate or common seal.

History

(Code, ss. 704, 3117; 1901, c. 283; 1905, c. 526; Rev., s. 2916; 1907, c. 978; P.L. 1917, c. 223; C.S., s. 2623; Ex. Sess. 1921, c. 58; 1927, c. 14; 1933, c. 69; 1949, c. 938; 1955, c. 77; 1959, c. 391; 1961, c. 308; 1967, c. 100, s. 2; c. 1122, s. 1; 1969, c. 944; 1971, c. 698, s. 1; 1973, c. 170; c. 426, s. 7; 2011-284, s. 110.)

Cross References. - As to construction of grants of power to municipalities, see G.S. 160A-4.

Effect of Amendments. - Session Laws 2011-284, s. 110, effective June 24, 2011, deleted "bequeathed" following "devised" in the middle of the first paragraph.

Legal Periodicals. - For note on abrogation of contractual sovereign immunity, see 12 Wake Forest L. Rev. 1082 (1976).

CASE NOTES

Editor's Note. - Many of the cases cited below were decided under former similar provisions.

Control of Municipal Territory and Affairs. - When a municipal corporation is established it takes control of the territory and affairs over which it is given authority to the exclusion of other governmental agencies. Gunter v. Sanford, 186 N.C. 452, 120 S.E. 41 (1923); Parsons v. Wright, 223 N.C. 520, 27 S.E.2d 534 (1943).

Exclusive Control of Municipal Streets. - The object of incorporating a town or city is to invest the inhabitants of the municipality with the government of all matters that are of special municipal concern, and certainly the streets are as much of a special and local concern as anything connected with a town or city can be. It ought, therefore, to be presumed that they pass under the exclusive control of the municipality as soon as it comes into existence under the law. Gunter v. Sanford, 186 N.C. 452, 120 S.E. 41 (1923); Parsons v. Wright, 223 N.C. 520, 27 S.E.2d 534 (1943).

Power to Levy Fees. - Trial court erred in entering summary judgment in favor of a city because 1985 N.C. Sess. Laws. 861 did not give the city the power to levy prospective water and sewer fees; the General Assembly provided the city with the fee-levying powers granted to all municipalities under the General Enterprise Statutes and eliminated the Board of Light and Water Commissioners of the City consistent with the plenary powers found in the constitution consistent with the plenary powers found in the statutes. JVC Enters., LLC v. City of Concord, 269 N.C. App. 13, 837 S.E.2d 206 (2019).

Power to Purchase Land at Tax Sale. - The title of the purchaser at a tax foreclosure sale may not be challenged by the listed owner upon the purchaser's motion for a writ of assistance; such purchaser may be a municipality where it does not appear of record that the purchase of the land was ultra vires, a municipality having the power to purchase land for certain purposes. Wake County v. Johnson, 206 N.C. 478, 174 S.E. 303 (1934).

Ordinance Within Power Granted Presumed Reasonable. - When an ordinance is within the grant of power to the municipality, the presumption is that it is reasonable. Gene's, Inc. v. City of Charlotte, 259 N.C. 118, 129 S.E.2d 889 (1963).

A town must be sued in its corporate name and not in the name of its officers. Young v. Barden, 90 N.C. 424 (1886).

Service Against City. - A summons against a city may be served on the mayor and on the secretary of the board of aldermen. Loughran v. Hickory, 129 N.C. 281, 40 S.E. 46 (1901).

Venue of Suits Against Cities or Towns. - Cities and towns must be sued in the county in which they are located, and if suit is brought in another county, they have the right to have it removed. Jones v. Town of Statesville, 97 N.C. 86, 2 S.E. 346 (1887).

Action in Name of All Citizens Against City. - In an action against a municipal corporation to enjoin the collection of an illegal tax, it was not error to allow all citizens other than the original plaintiff to be made parties plaintiff. Cobb v. Elizabeth City, 75 N.C. 1 (1876).

Action Against City. - In this Age Discrimination in Employment Act of 1967 (ADEA) action, ADEA authorized a suit against the City of Winston-Salem, but not the Winston-Salem Police Department because North Carolina law implied that a city was the employer of the police officer working for the city's police department. Fisher v. Winston-Salem Police Dep't, 28 F. Supp. 3d 526 (M.D.N.C. 2014).

Applied in North Carolina Consumers Power, Inc. v. Duke Power Co., 21 N.C. App. 237, 204 S.E.2d 399 (1974).

Cited in Carolina Action v. Pickard, 465 F. Supp. 576 (W.D.N.C. 1979); Davidson County v. City of High Point, 85 N.C. App. 26, 354 S.E.2d 280 (1987); Concrete Mach. Co. v. City of Hickory, 134 N.C. App. 91, 517 S.E.2d 155 (1999); Myers v. Town of Plymouth, 135 N.C. App. 707, 522 S.E.2d 122 (1999); Liberty Mut. Ins. Co. v. Pennington, 141 N.C. App. 495, 541 S.E.2d 503 (2000), aff'd, 356 N.C. 571, 573 S.E.2d 118 (2002); City of Asheville v. State, 369 N.C. 80, 794 S.E.2d 759 (2016).

Opinions of Attorney General

Ownership and Operation of Private For-Profit Corporation. - The authority of a city to hold property granted by this section should not be interpreted to authorize a city to act as a shareholder of a private for-profit corporation organized under the provisions of Chapter 55, and to appoint city officials and employees as corporate directors or officers. See opinion of the Attorney General to H. Michael Boyd, Deputy City Attorney, City of Charlotte, 60 N.C.A.G. 114 (1992).

While there may be authority for a city to purchase all of the stock of a corporation which owns and operates a water and sewer system, there is no authority to operate and continue the existence of a private for-profit corporation which is outside of the traditional functions of a municipality and for which there is no judicial or legislative approval. See opinion of the Attorney General to H. Michael Boyd, Deputy City Attorney, City of Charlotte, 60 N.C.A.G. 114 (1992).

§ 160A-12. Exercise of corporate power.

All powers, functions, rights, privileges, and immunities of the corporation shall be exercised by the city council and carried into execution as provided by the charter or the general law. A power, function, right, privilege, or immunity that is conferred or imposed by charter or general law without directions or restrictions as to how it is to be exercised or performed shall be carried into execution as provided by ordinance or resolution of the city council.

History

(Code, s. 703; Rev., s. 2917; C.S., s. 2624; 1971, c. 698, s. 1.)

CASE NOTES

Cited in Concrete Mach. Co. v. City of Hickory, 134 N.C. App. 91, 517 S.E.2d 155 (1999).

Opinions of Attorney General

Editor's Note. - Many of the opinions cited below were decided under former similar provisions.

Exercise of Corporate Powers by Board of Aldermen. - Where city had not adopted one of the plans of government prescribed in former Article 21 of Chapter 160, and its charter granted only those powers enumerated by the General Statutes, the corporate powers could only be exercised by the board of aldermen, unless otherwise provided by law. See opinion of Attorney General to Mr. Richard A. Williams, Maiden Town Attorney, 40 N.C.A.G. 450 (1969), issued under former statutory provisions.

Effect of Action by Individual Commissioner. - Individual commissioner's representation about payment of a damage claim neither created a duty on the town to pay the same, nor authorized it to pay, unless the board of commissioners, by resolution, authorized the individual to make such an offer, as the municipal power to contract was given to the board, and boards, nothing else appearing, must act through a quorum at a meeting rather than through an individual member on an ad hoc basis. See opinion of Attorney General to Mr. John W. Twisdale, Clayton Town Attorney, 40 N.C.A.G. 522 (1970), issued under former G.S. 160-3.

§§ 160A-13 through 160A-15: Reserved for future codification purposes.

ARTICLE 3. Contracts.

Sec.

§ 160A-16. Contracts to be in writing; exception.

All contracts made by or on behalf of a city shall be in writing. A contract made in violation of this section shall be void and unenforceable unless it is expressly ratified by the council.

History

(1917, c. 136, subch. 13, s. 8; C.S., s. 2831; 1971, c. 698, s. 1.)

Cross References. - As to report on guaranteed energy savings contracts, see G.S. 143-64.17G.

Legal Periodicals. - For article, "The Regulation of Contractual Change: A Guide to No Oral Modification Clauses for North Carolina Lawyers," see 81 N.C.L. Rev. 2239 (2003).

CASE NOTES

City Not Liable Absent Agreement for Treatment of Inebriate Injured While Being Assisted by Police. - A city was not liable to a hospital for the cost of treating a habitual inebriate who was injured when he fell while being assisted by city police officers, where there was no express agreement to pay for such services. Nor was there an implied promise to pay, pursuant to a statutory duty, since persons arrested by city police officers, if confined, were confined in the county jail. Under G.S. 153A-224(b), the cost of emergency medical services rendered to persons confined in local confinement facilities is imposed on the local governmental unit operating the facility. Craven County Hosp. Corp. v. Lenoir County, 75 N.C. App. 453, 331 S.E.2d 690, cert. denied, 314 N.C. 663, 336 S.E.2d 620 (1985).

Where no duty was imposed by statute upon city to pay for medical services rendered to persons in custody of its police officers, there was no relationship implied by law which would obligate the city to pay the costs of such treatment. Craven County Hosp. Corp. v. Lenoir County, 75 N.C. App. 453, 331 S.E.2d 690, cert. denied, 314 N.C. 663, 336 S.E.2d 620 (1985).

Sovereign immunity does not apply to breach of contract claims. Houpe v. City of Statesville, 128 N.C. App. 334, 497 S.E.2d 82, cert. denied, 348 N.C. 72, 505 S.E.2d 871 (1998).

A viable claim for breach of an employment contract must allege the existence of contractual terms regarding the duration or means of terminating employment. Houpe v. City of Statesville, 128 N.C. App. 334, 497 S.E.2d 82, cert. denied, 348 N.C. 72, 505 S.E.2d 871 (1998).

Cited in Carolina Water Serv., Inc. v. Town of Atlantic Beach, 121 N.C. App. 23, 464 S.E.2d 317 (1995); Concrete Mach. Co. v. City of Hickory, 134 N.C. App. 91, 517 S.E.2d 155 (1999); M Series Rebuild, LLC v. Town of Mt. Pleasant, 222 N.C. App. 59, 730 S.E.2d 254 (2012).


§ 160A-17. Continuing contracts.

A city is authorized to enter into continuing contracts, some portion or all of which are to be performed in ensuing fiscal years. Sufficient funds shall be appropriated to meet any amount to be paid under the contract in the fiscal year in which it is made, and in each ensuing fiscal year, the council shall appropriate sufficient funds to meet the amounts to be paid during the fiscal year under continuing contracts previously entered into.

History

(1971, c. 698, s. 1.)

§ 160A-17.1. Grants from other governments.

  1. Federal and State. - The governing body of any city or county is hereby authorized to make contracts for and to accept grants-in-aid and loans from the federal and State governments and their agencies for constructing, expanding, maintaining, and operating any project or facility, or performing any function, which such city or county may be authorized by general law or local act to provide or perform.
    1. Enter into and carry out contracts with the State or federal government or any agency or institution thereof under which such government, agency, or institution grants financial or other assistance to the city or county;
    2. Accept such assistance or funds as may be granted or loaned by the State or federal government with or without such a contract;
    3. Agree to and comply with any lawful and reasonable conditions which are imposed upon such grants or loans;
    4. Agree to and comply with minimum minority business enterprise participation requirements established by the federal government and its agencies in projects financed by federal grants-in-aid or loans, by including such minimum requirements in the specifications for contracts to perform all or part of such projects and awarding bids pursuant to G.S. 143-129 and 143-131, if applicable, to the lowest responsible bidder or bidders meeting these and any other specifications.
    5. Make expenditures from any funds so granted.
  2. Expired effective December 31, 2010.

In order to exercise the authority granted by this section, the governing body of any city or county may:

History

(1971, c. 896, s. 10; c. 937, ss. 1, 1.5; 1973, c. 426, s. 8; 1981, c. 827; 2007-91, s. 1.)

§ 160A-17.2. Security interests in United States Department of Agriculture loans.

  1. A county or municipality may pledge a security interest in an escrow account funded with loan proceeds, or a certificate of deposit, to secure repayment of the loan, only if the loan is an interest-free loan agreement entered into with the United States Department of Agriculture or an authorized intermediary acting on behalf of the United States Department of Agriculture. Any such escrow account must be substantiated by a written escrow agreement, and the funds must be deposited in accordance with G.S. 159-30 and G.S. 159-31. Any certificate of deposit shall comply with the requirements of G.S. 159-30.
  2. An interest-free loan agreement entered into under this section is subject to approval by the Local Government Commission under Article 8 of Chapter 159 of the General Statutes, unless exempted in G.S. 159-148(b).
  3. No deficiency judgment may be rendered against any county or municipality in any action for breach of a contractual obligation authorized by this section. The taxing power of a county or municipality is not and may not be pledged directly or indirectly to secure any moneys due under a contract authorized by this section.

History

(2015-207, s. 3.)

Editor's Note. - Session Laws 2015-207, s. 7, made this section effective August 11, 2015.

§ 160A-18. Certain deeds validated.

  1. All deeds made, executed, and delivered by any city before July 1, 1970, for a good and valuable consideration are hereby in all respects validated, ratified, and confirmed notwithstanding any lack of authority to make the deed or any irregularities in the procedures by which conveyance of the land or premises described therein was authorized by the city council.
  2. All conveyances and sales of any interest in real property by private sale, including conveyances in fee and releases of vested or contingent future interests, made by the governing body of any city, school district, or school administrative unit before July 1, 1970, are hereby validated, ratified, and confirmed notwithstanding the fact that such conveyances or releases were made by private sale and not after notice and public outcry.
  3. All conveyances of any interest in real property by private sale, including conveyance in fee, made by the governing body of any county before January 1, 1977, are hereby validated, ratified, and confirmed notwithstanding the fact that such conveyances were made by private sale, without advertisement, and not after notice and public outcry.
  4. Nothing in this section shall affect any action or proceeding begun before January 1, 1977.

History

(Ex. Sess. 1924, c. 95; 1951, c. 44; 1959, c. 487; 1971, c. 698, s. 1; 1977, c. 1103.)

§ 160A-19. Leases.

A city is authorized to lease as lessee, with or without option to purchase, any real or personal property for any authorized public purpose. A lease of personal property with an option to purchase is subject to Article 8 of Chapter 143 of the General Statutes.

History

(1973, c. 426, s. 9.)

§ 160A-20. Security interests.

  1. Purchase. - A unit of local government may purchase, or finance or refinance the purchase of, real or personal property by installment contracts that create in some or all of the property purchased a security interest to secure payment of the purchase price to the seller or to an individual or entity advancing moneys or supplying financing for the purchase transaction.
  2. Improvements. - A unit of local government may finance or refinance the construction or repair of fixtures or improvements on real property by contracts that create in some or all of the fixtures or improvements, or in all or some portion of the property on which the fixtures or improvements are located, or in both, a security interest to secure repayment of moneys advanced or made available for the construction or repair.
  3. Accounts. - A unit of local government may use escrow accounts in connection with the advance funding of transactions authorized by this section, whereby the proceeds of the advance funding are invested pending disbursement. A unit of local government may also use other accounts, such as debt service payment accounts and debt service reserve accounts, to facilitate transactions authorized by this section. To secure transactions authorized by this section, a unit of local government may also create security interests in these accounts.
  4. Nonsubstitution. - No contract entered into under this section may contain a nonsubstitution clause that restricts the right of a unit of local government to:
    1. Continue to provide a service or activity; or
    2. Replace or provide a substitute for any fixture, improvement, project, or property financed, refinanced, or purchased pursuant to the contract.
  5. Oversight. - A contract entered into under this section is subject to approval by the Local Government Commission under Article 8 of Chapter 159 of the General Statutes if it:
    1. Meets the standards set out in G.S. 159-148(a)(1), 159-148(a)(2), and 159-148(a)(3), or involves the construction or repair of fixtures or improvements on real property; and
    2. Is not exempted from the provisions of that Article by one of the exemptions contained in G.S. 159-148(b).
  6. Public Hospitals. - A nonprofit entity operating or leasing a public hospital may enter into a contract pursuant to this section only if the nonprofit entity will have an ownership interest in the property being financed or refinanced, including a leasehold interest. The security interest granted in the property shall be only to the extent of the nonprofit entity's property interest. In addition, any contract entered into by a nonprofit entity operating or leasing a public hospital pursuant to this section is subject to the approval of the city, county, hospital district, or hospital authority that owns the hospital. Approval of the city, county, hospital district, or hospital authority may be withheld only under one or more of the following circumstances:
    1. The contract would cause the city, county, hospital district, or hospital authority to breach or violate any covenant in an existing financing instrument entered into by the nonprofit entity.
    2. The contract would restrict the ability of the city, county, hospital district, or hospital authority to incur anticipated bank-eligible indebtedness under federal tax laws.
    3. The entering into of the contract would have a material, adverse impact on the credit ratings of the city, county, hospital district, or hospital authority or would otherwise materially interfere with an anticipated financing by the nonprofit entity.
  7. Limit of Security. - No deficiency judgment may be rendered against any unit of local government in any action for breach of a contractual obligation authorized by this section. The taxing power of a unit of local government is not and may not be pledged directly or indirectly to secure any moneys due under a contract authorized by this section.
  8. Public Hearing. - Before entering into a contract under this section involving real property, a unit of local government shall hold a public hearing on the contract. A notice of the public hearing shall be published once at least 10 days before the date fixed for the hearing.
  9. Local Government Defined. - As used in this section, the term "unit of local government" means any of the following:
    1. A county.
    2. A city.
    3. A water and sewer authority created under Article 1 of Chapter 162A of the General Statutes.
    4. A metropolitan sewerage district created under Article 5 of Chapter 162A of the General Statutes.
    5. A sanitary district created under Part 2 of Article 2 of Chapter 130A of the General Statutes.
    6. A county water and sewer district created under Article 6 of Chapter 162A of the General Statutes.
    7. A metropolitan water district created under Article 4 of Chapter 162A of the General Statutes.
    8. A metropolitan water and sewerage district created under Article 5A of Chapter 162A of the General Statutes.
    9. An airport authority whose situs is entirely within a county that has (i) a population of over 120,000 according to the most recent federal decennial census and (ii) an area of less than 200 square miles.
    10. An airport authority in a county in which there are two incorporated municipalities with a population of more than 65,000 according to the most recent federal decennial census.
    11. An airport board or commission authorized by agreement between two cities pursuant to G.S. 63-56, one of which is located partially but not wholly in the county in which the jointly owned airport is located, and where the board or commission provided water and wastewater services off the airport premises before January 1, 1995, except that the authority granted by this subdivision may be exercised by such a board or commission with respect to water and wastewater systems or improvements only.
    12. A local airport authority that was created pursuant to a local act of the General Assembly.
    13. A local school administrative unit whose board of education is authorized to levy a school tax.
    14. Any other local school administrative unit, but only for the purpose of financing energy conservation measures acquired pursuant to Part 2 of Article 3B of Chapter 143 of the General Statutes.
    15. A community college, but only for the purpose of financing energy conservation measures acquired pursuant to Part 2 of Article 3B of Chapter 143 of the General Statutes.
    16. An area mental health, developmental disabilities, and substance abuse authority, acting in accordance with G.S. 122C-147.
    17. A consolidated city-county, as defined by G.S. 160B-2(1).
    18. Repealed by Session Laws 2001-414, s. 52, effective September 14, 2001.
    19. A regional natural gas district, as defined by Article 28 of this Chapter.
    20. A regional public transportation authority or a regional transportation authority created pursuant to Article 26 or Article 27 of this Chapter.
    21. A nonprofit corporation or association operating or leasing a public hospital as defined in G.S. 159-39.
    22. A public health authority created under Part 1B of Article 2 of Chapter 130A of the General Statutes.
    23. A special district created under Article 43 of Chapter 105 of the General Statutes.
    24. A Ferry Transportation Authority created pursuant to Article 29 of this Chapter.

History

(1979, c. 743; 1987 (Reg. Sess., 1988), c. 981, s. 1; 1989, c. 708; 1991, c. 741, s. 1; 1993 (Reg. Sess., 1994), c. 592, s. 2; 1995, c. 461, s. 6; 1995 (Reg. Sess., 1996), c. 644, s. 2; 1997-380, s. 3; 1997-426, s. 7; 1997-426, s. 7.1; 1998-70, s. 1; 1998-117, s. 1; 1999-386, ss. 1, 2; 2001-414, s. 52; 2002-161, s. 10; 2003-259, s. 1; 2003-388, s. 3; 2007-226, s. 1; 2007-229, s. 3; 2009-527, s. 2(g); 2015-207, s. 5(a); 2017-120, s. 4.)

Editor's Note. - Session Laws 1989, c. 708, which amended this section, in ss. 2 and 3, provides:

"Sec. 2. (a) Any contract made or entered into, prior to the date of ratification of this act, by a city, a county, or a water and sewer authority created under Article 1 of Chapter 162A of the General Statutes which would have been valid under G.S. 160A-20, subsections (a), (b), (c), and (f), as rewritten by this act, is hereby validated, ratified, and confirmed. Furthermore, such a contract may not be held invalid because it contains a nonsubstitution clause, or because no public hearing was advertised and held on the contract, or both.

"(b) Any contract made or entered into, prior to the date of ratification of this act, by a city, a county, or a water and sewer authority created under Article 1 of Chapter 162A of the General Statutes which would have been valid under subsection (a) of this Section 2 or under G.S. 160A-20 as it existed prior to the ratification of this act or as rewritten by this act, except that the Local Government Commission did not approve the contract, is hereby validated, ratified, and confirmed.

"Sec. 3. Nothing in this act shall be interpreted to limit or restrict the authority of cities, counties, or water and sewer authorities created under Article 1 of Chapter 162A of the General Statutes to purchase, improve, or finance the purchase or improvement of real or personal property pursuant to any other applicable law, whether general, special, or local."

Session Laws 1997-426, s. 7.1, provided that if Ratified Senate Bill 389, 1997 Regular Session, became law, then subdivision (h)(9) was recodified as subdivision (h)(10) of this section. Senate Bill 389 became S.L.1997-380, which became law on August 7, 1997.

Session Laws 1997-426, s. 10(a)-(c), provides that, insofar as the provisions of that act are not consistent with the provisions of any other law, public or private, the provisions of that act shall be controlling; that references in that act to specific sections or Chapters of the General Statutes are intended to be references to such sections or Chapters as they may be amended from time to time by the General Assembly; and that that act, being necessary for the health and welfare of the people of the State, shall be liberally construed to effect the purposes thereof.

Session Laws 1997-426, s. 10(d), is a severability clause.

Session Laws 1999-377, s. 4, effective August 4, 1999, provides that any hospital continuing to operate under Article 2 of Chapter 131 of the General Statutes pursuant to Section 3 of Chapter 775 of the 1983 Session Laws shall be considered to be a "public hospital" within the meaning of G.S. 159-39 and to be a "unit of local government" within the meaning of G.S. 160A-20.

Session Laws 2002-161, s. 12, provides that nothing in the act limits the use of any method of contracting authorized by local law or other applicable laws.

Session Laws 2003-388, provides in its preamble:

"Whereas, the State Treasurer's Office formed a Public Finance Advisory Committee comprised of representative city and county governments, as well as the public finance bar and financial services sectors, to review and propose changes to the General Statutes dealing with public finance in an effort to strengthen, modernize, and provide for the most efficient method of issuing of public debt by local governments and other political subdivisions of the State; and

"Whereas, the Public Finance Advisory Committee has developed, and the State Treasurer's Office has reviewed, a set of recommendations to the General Assembly for specific changes to relevant General Statutes around which there is consensus that the proposed changes are beneficial to local governments in their issuance of public debt; and

"Whereas, the Local Government Commission remains the statutorily designated entity to which all proposed issuances must be submitted for approval, and these recommendations in no way lower or lessen the level of due diligence performed in determining the appropriateness of a specific issuance; and

"Whereas, for these reasons, this legislation is submitted for consideration by the General Assembly on behalf of the State Treasurer, the staff of the Local Government Commission, and the Public Finance Advisory Committee; Now, therefore,"

Effect of Amendments. - Session Laws 2007-226, s. 1, effective July 18, 2007, added subdivision (h)(3c).

Session Laws 2007-229, s. 3, effective July 18, 2007, added subdivision (h)(13).

Session Laws 2009-527, s. 2(g), effective August 27, 2009, added subdivision (h)(14).

Session Laws 2015-207, s. 5(a), effective August 11, 2015, added subdivisions (h)(3d) and (h)(3e).

Session Laws 2017-120, s. 4, effective July 18, 2017, added subdivision (h)(15).

Legal Periodicals. - For note, "Constitutional Expansion of Local Government Financing Alternatives: Wayne County Citizens Association v. Wayne County Board of Commissioners," see 70 N.C.L. Rev. 1947 (1992).

CASE NOTES

This section does not contravene N.C. Const., Art. V, § 4, which authorizes the General Assembly to regulate local government finance. Wayne County Citizens v. Wayne County Bd. of Comm'rs, 328 N.C. 24, 399 S.E.2d 311 (1991).

County's installment purchase contract for construction of a new courthouse and jail was authorized by this section. Wayne County Citizens v. Wayne County Bd. of Comm'rs, 328 N.C. 24, 399 S.E.2d 311 (1991).


§ 160A-20.1. Contracts with private entities; contractors must use E-Verify.

  1. Authority. - A city may contract with and appropriate money to any person, association, or corporation, in order to carry out any public purpose that the city is authorized by law to engage in. A city may not require a private contractor under this section to abide by any restriction that the city could not impose on all employers in the city, such as paying minimum wage or providing paid sick leave to its employees, as a condition of bidding on a contract.
  2. Repealed by Session Laws 2015-294, s. 1(b), effective October 1, 2015, and applicable to contracts entered into on or after that date.

History

(1985, c. 271, s. 1; 2013-413, s. 5(d); 2013-418, s. 2(b); 2014-119, s. 13(a); 2015-294, s. 1(b); 2016-3, 2nd Ex. Sess., s. 2.3; 2017-4, s. 1.)

Cross References. - As to procedure for letting of public contracts, see G.S. 143-129.

Executive Order No. 93. - On April 12, 2016, Governor Pat McCrory issued Executive Order No. 93, "To Protect Privacy and Equality," which provides: "WHEREAS, North Carolina's rich legacy of inclusiveness, diversity and hospitality makes North Carolina a global destination for jobs, business, tourists and talent;

"WHEREAS, it is the policy of the Executive Branch that government services be provided equally to all people;

"WHEREAS, N.C. Gen. Stat. § 160A-499.2 permits municipalities to adopt ordinances prohibiting discrimination in housing and real estate transactions, and any municipality may expand such ordinance consistent with the federal Fair Housing Act;

"WHEREAS, N.C. Gen. Stat. § 143-422.2(c) permits local governments or other political subdivisions of the State to set their own employment policies applicable to their own personnel;

"WHEREAS, North Carolina law allows private businesses and nonprofit employers to establish their own non-discrimination employment policies;

"WHEREAS, N.C. Gen. Stat. § 143-128.2 requires each city, county or other local public entity to adopt goals for participation by minority businesses and to make good faith efforts to recruit minority participation in line with those goals;

"WHEREAS, North Carolina law allows a private business or nonprofit to set their own restroom, locker room or shower policies;

"WHEREAS, our citizens have basic common-sense expectations of privacy in our restrooms, locker rooms and shower facilities for children, women and men;

"WHEREAS, to protect expectations of privacy in restrooms, locker rooms and shower facilities in public buildings, including our schools, the State of North Carolina maintains these facilities on the basis of biological sex;

"WHEREAS, State agencies and local governments are allowed to make reasonable accommodations in restrooms, locker rooms and shower facilities due to special individual circumstances;

"NOW, THEREFORE, pursuant to the authority vested in me as Governor by the Constitution and laws of the State of North Carolina, IT IS ORDERED:

"Section 1. Public Services

"In the provision of government services and in the administration of programs, including, but not limited to public safety, health and welfare, public agencies shall serve all people equally, consistent with the mission and requirements of the service or program.

"Section 2. Equal Employment Opportunity Policy for State Employees

"I hereby affirm that the State of North Carolina is committed to administering and implementing all State human resources policies, practices and programs fairly and equitably, without unlawful discrimination, harassment or retaliation on the basis of race, religion, color, national origin, sex, sexual orientation, gender identity, age, political affiliation, genetic information, or disability.

"I also affirm that private businesses, nonprofit employers and local governments may establish their own non-discrimination employment policies.

"Section 3. Restroom Accommodations

"In North Carolina, private businesses can set their own rules for their own restroom, locker room and shower facilities, free from government interference.

"Under current law, every multiple occupancy restroom, locker room or shower facility located in a cabinet agency must be designated for and only used by persons based on their biological sex. Agencies may make reasonable accommodations upon a person's request due to special circumstances.

"Therefore, when readily available and when practicable in the best judgment of the agency, all cabinet agencies shall provide a reasonable accommodation of a single occupancy restroom, locker room or shower facility upon request due to special circumstances.

"All council of state agencies, cities, counties, the University of North Carolina System and the North Carolina Community College System are invited and encouraged to make a similar accommodation when practicable.

"Section 4. State Buildings and Facilities Leased to Private Entities

"The Department of Administration shall interpret the application of N.C. Gen. Stat. § 143-760 as follows:

"When a private entity leases State real property and the property in the lessee's exclusive possession includes multiple occupancy restrooms, locker rooms or other like facilities, the private entity will control the signage and use of these facilities.

"All council of state agencies, cities, counties, the University of North Carolina System and the North Carolina Community College System are invited and encouraged to adopt a similar interpretation of N.C. Gen. Stat. § 143-760.

"Section 5. Human Relations Commission

"Pursuant to N.C. Gen. Stat. § 143B-391, the Human Relations Commission in the Department of Administration shall promote equality and opportunity for all citizens.

"The Human Relations Commission shall work with local government officials to study problems and promote understanding, respect and goodwill among all citizens in all communities in North Carolina.

"The Human Relations Commission shall receive, investigate and conciliate fair housing, employment discrimination and public accommodations complaints.

"The Human Relations Commission shall submit an annual report by April 1st to the Governor detailing the number of complaints received, the number of investigations completed, and the number of conciliations in the preceding calendar year. This report shall also describe any education and outreach efforts made by the Commission in that same calendar year.

"Section 6. State Cause of Action for Wrongful Discharge

"I support and encourage the General Assembly to take all necessary steps to restore a State cause of action for wrongful discharge based on unlawful employment discrimination.

"Section 7. State or Federal Law

"Nothing in this section shall be interpreted as an abrogation of any requirements otherwise imposed by applicable federal or state laws or regulations.

"IN WITNESS WHEREOF, I have hereunto signed my name and affixed the Great Seal of the State of North Carolina at the Capitol in the City of Raleigh, this twelfth day of April in the year of our Lord two thousand and sixteen."

Session Laws 2015-294, s. 17, made the repeal of subsection (b) of this section by Session Laws 2015-294, s. 1(b), applicable to contracts entered into on or after October 1, 2015.

Session Laws 2016-3, 2nd Ex. Sess., provides in its preamble: "Whereas, the North Carolina Constitution directs the General Assembly to provide for the organization and government of all cities and counties and to give cities and counties such powers and duties as the General Assembly deems advisable in Section 1 of Article VII of the North Carolina Constitution; and

"Whereas, the North Carolina Constitution reflects the importance of statewide laws related to commerce by prohibiting the General Assembly from enacting local acts regulating labor, trade, mining, or manufacturing in Section 24 of Article II of the North Carolina Constitution; and

"Whereas, the General Assembly finds that laws and obligations consistent statewide for all businesses, organizations, and employers doing business in the State will improve intrastate commerce; and

"Whereas, the General Assembly finds that laws and obligations consistent statewide for all businesses, organizations, and employers doing business in the State benefit the businesses, organizations, and employers seeking to do business in the State and attracts new businesses, organizations, and employers to the State; Now, therefore,"

Session Laws 2016-3, 2nd Ex. Sess., s. 4, is a severability clause.

Session Laws 2016-3, 2nd Ex. Sess., s. 5, provides: "This act is effective when it becomes law [March 23, 2016] and applies to any action taken on or after that date, to any ordinance, resolution, regulation, or policy adopted or amended on or after that date, and to any contract entered into on or after that date. The provisions of Sections 2.1 [amending G.S. 95-25.1], 2.2 [amending G.S. 153A-449(a)], 2.3 [amending G.S. 160A-20.1(a)], 3.1 [amending G.S. 143-422.2], 3.2 [amending G.S. 143-422.3], and 3.3 [enacting Article 49B of Chapter 143] of this act supersede and preempt any ordinance, resolution, regulation, or policy adopted prior to the effective date of this act that purports to regulate a subject matter preempted by this act or that violates or is not consistent with this act, and such ordinances, resolutions, regulations, or policies shall be null and void as of the effective date of this act."

Session Laws 2017-4, s. 1, effective March 30, 2017, provides: "S.L. 2016-3 and S.L. 2016-99 are repealed." Session Laws 2016-3, 2nd Ex. Sess., s. 2.3, effective March 23, 2016, and applicable to any action taken on or after that date, to any ordinance, resolution, regulation, or policy adopted or amended on or after that date, and to any contract entered into on or after that date, had amended subsection (a) by substituting "regulations or controls on the contractor's employment practices or mandate or prohibit the provision of goods, services, or accommodations to any member of the public as a condition of bidding on a contract or a qualification-based selection, except as otherwise required or allowed by State law" for "any restriction that the city could not impose on all employers in the city, such as paying minimum wage or providing paid sick leave to its employees, as a condition of bidding on a contract."

Session Laws 2017-4, s. 3, provides: "No local government in this State may enact or amend an ordinance regulating private employment practices or regulating public accommodations." Section 3 of this act expires on December 1, 2020.

Effect of Amendments. - Session Laws 2013-413, s. 5(d), effective August 23, 2013, added the second sentence in this section. For applicability, see Editor's note.

Session Laws 2013-418, s. 2(b), effective September 4, 2013, added "contractors must use E-verify" in the section heading; designated the existing provisions as subsection (a); added "Authority" as the subsection heading in subsection (a); and added subsection (b).

Session Laws 2014-119, s. 13(a), effective October 1, 2014, inserted "subject to G.S. 143-129" near the beginning of subsection (b). See Editor's note for applicability.

Session Laws, 2015-294, s. 1(b), effective October 1, 2015, repealed subsection (b). For applicability, see editor's note.

Session Laws 2016-3, 2nd Ex. Sess., s. 2.3, effective March 23, 2016, in the second sentence of subsection (a), substituted "regulations or controls on the contractor's employment practices or mandate or prohibit the provision of goods, services, or accommodations to any member of the public as a condition of bidding on a contract or a qualification-based selection, except as otherwise required or allowed by State law" for "any restriction that the city could not impose on all employers in the city, such as paying minimum wage or providing paid sick leave to its employees, as a condition of bidding on a contract".

ARTICLE 4. Corporate Limits.

Part 1. General Provisions.

Sec.

PART 1.

GENERAL PROVISIONS.

§ 160A-21. Existing boundaries.

The boundaries of each city shall be those specified in its charter with any alterations that are made from time to time in the manner provided by law or by local act of the General Assembly.

History

(1971, c. 698, s. 1.)

Legal Periodicals. - For 1984 survey, "Competitive Annexation Among Municipalities: North Carolina Adopts the Prior Jurisdiction Rule," see 63 N.C.L. Rev. 1260 (1985).

CASE NOTES

Constitutionality of Annexation by Local Act Where Essential Service Not Provided. - Annexation to a municipality by a local act of the General Assembly is not invalid constitutionally where the municipality fails to provide one of the many essential services to the newly acquired territory. Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820, cert. denied and appeal dismissed, 303 N.C. 710, 283 S.E.2d 136 (1981).

Contiguity and cohesiveness were not constitutionally required in an annexation proceeding under this section. Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820, cert. denied and appeal dismissed, 303 N.C. 710, 283 S.E.2d 136 (1981).

Legislature Has Power to Regulate Annexation. - Annexation by a municipal corporation is a political question which is within the power of the state legislature to regulate. Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820, cert. denied and appeal dismissed, 303 N.C. 710, 283 S.E.2d 136 (1981).

But Such Power Is Not Unlimited. - The power of the legislature to expand the boundaries of cities, towns, or other local units, though great, is not unlimited. Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820, cert. denied and appeal dismissed, 303 N.C. 710, 283 S.E.2d 136 (1981).

Scope of Legislative Discretion. - Enlargement of municipal boundaries by the annexation of new territory, and the consequent extension of corporate jurisdiction, including that of levying taxes, are legitimate subjects of legislation. In the absence of constitutional restriction, the extent to which such legislation shall be enacted, both with respect to the terms and circumstances under which the annexation may be had, and the manner in which it may be made, rests entirely in the discretion of the legislature. Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820, cert. denied and appeal dismissed, 303 N.C. 710, 283 S.E.2d 136 (1981).

Judicial Review of Local Annexation Act. - A local annexation act is not insulated from judicial review when it is an instrument for circumventing a constitutionally protected right. Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820, cert. denied and appeal dismissed, 303 N.C. 710, 283 S.E.2d 136 (1981).

Cited in Jones v. Jeanette, 34 N.C. App. 526, 239 S.E.2d 293 (1977); Piedmont Ford Truck Sales, Inc. v. City of Greensboro, 90 N.C. App. 692, 370 S.E.2d 262 (1988); Pinehurst Enters., Inc. v. Town of S. Pines, 690 F. Supp. 444 (M.D.N.C. 1988).


§ 160A-22. Map of corporate limits.

The current city boundaries shall at all times be drawn on a map, or set out in a written description, or shown by a combination of these techniques. This delineation shall be retained permanently in the office of the city clerk. Alterations in these established boundaries shall be indicated by appropriate entries upon or additions to the map or description made by or under the direction of the officer charged with that duty by the city charter or by the council. Copies of the map or description reproduced by any method of reproduction that gives legible and permanent copies, when certified by the city clerk, shall be admissible in evidence in all courts and shall have the same force and effect as would the original map or description. The council may provide for revisions in any map or other description of the city boundaries. A revised map or description shall supersede for all purposes the earlier map or description that it is designated to replace.

History

(1971, c. 698, s. 1; 1973, c. 426, s. 10.)

CASE NOTES

Cited in Potter v. City of Hamlet, 141 N.C. App. 714, 541 S.E.2d 233, cert. denied, 355 N.C. 379, 547 S.E.2d 814 (2001); Town of Boone v. State, 369 N.C. 126, 794 S.E.2d 710 (2016).


§ 160A-23. District map; reapportionment.

  1. If the city is divided into electoral districts for the purpose of electing the members of the council, the map or description required by G.S. 160A-22 shall also show the boundaries of the several districts.
  2. The council shall have authority to revise electoral district boundaries from time to time. If district boundaries are set out in the city charter and the charter does not provide a method for revising them, the council may revise them only for the purpose of (i) accounting for territory annexed to or excluded from the city, and (ii) correcting population imbalances among the districts shown by a new federal census or caused by exclusions or annexations. When district boundaries have been established in conformity with the federal Constitution, the council shall not be required to revise them again until a new federal census of population is taken or territory is annexed to or excluded from the city, whichever event first occurs. In establishing district boundaries, the council may use data derived from the most recent federal census and shall not be required to use any other population estimates.

History

(1969, c. 629; 1971, c. 698, s. 1.)

Local Modification. - City of Greensboro: 2015-138, s. 2(b), as amended by 2015-264, s. 85.5.

Legal Periodicals. - For article, "Political Gerrymandering After Davis v. Bandemer," see 9 Campbell L. Rev. 207 (1987).

For article, "Racial Gerrymandering and the Voting Rights Act in North Carolina," see 9 Campbell L. Rev. 255 (1987).

§ 160A-23.1. Special rules for redistricting after a federal decennial census.

  1. As soon as possible after receipt of federal decennial census information, the council of any city which elects the members of its governing board on a district basis, or where candidates for such office must reside in a district in order to run, shall evaluate the existing district boundaries to determine whether it would be lawful to hold the next election without revising districts to correct population imbalances. If such revision is necessary, the council shall consider whether it will be possible to adopt the changes (and obtain approval from the United States Department of Justice, if necessary) before the third day before opening of the filing period for the municipal election. The council shall take into consideration the time that will be required to afford ample opportunities for public input. If the council determines that it most likely will not be possible to adopt the changes (and obtain federal approval, if necessary) before the third business day before opening of the filing period, and determines further that the population imbalances are so significant that it would not be lawful to hold the next election using the current electoral districts, it may adopt a resolution delaying the election so that it will be held on the timetable provided by subsection (d) of this section. Before adopting such a resolution, the council shall hold a public hearing on it. The notice of public hearing shall summarize the proposed resolution and shall be published at least once in a newspaper of general circulation, not less than seven days before the date fixed for the hearing. Notwithstanding adoption of such a resolution, if the council proceeds to adopt the changes, (and federal approval is obtained, if necessary) by the end of the third business day before the opening of the filing period, the election shall be held on the regular schedule under the revised electoral districts. Any resolution adopted under this subsection, and any changes in electoral district boundaries made under this section shall be submitted to the United States Department of Justice (if the city is covered under Section 5 of the Voting Rights Act of 1965), the State Board of Elections, and to the board conducting the elections for that city.
  2. In adopting any revisal under this section, if the council determines that in order for the plan to conform to the Voting Rights Act of 1965, the number of district seats needs to be increased or decreased, it may do so by following the procedures set forth in Part 4 of Article 5 of Chapter 160A of the General Statutes, except that the ordinance under G.S. 160A-102 may be adopted at the same meeting as the public hearing, and any referendum on the change under G.S. 160A-103 shall not apply to the municipal election in the two years following a federal decennial census.
  3. If the resolution provided for in subsection (a) of this section is not adopted and:
    1. Proposed changes to the electoral districts are not adopted, or
    2. Such changes are adopted, but approval under the Voting Rights Act of 1965, as amended, is required, and notice of such approval is not received,
  4. If the council adopts the resolution provided for in subsection (a) of this section and does not adopt the changes, or does adopt the changes, but approval under the Voting Rights Act of 1965, as amended, is required, and notice of such approval is not received, by the end of the third day before the opening of the filing period, the municipal election shall be rescheduled as provided in this subsection and current officeholders shall hold over until their successors are elected and qualified. For cities using the:
    1. Partisan primary and election method under G.S. 163-291, the primary shall be held on the primary election date for county officers in the second year following a federal decennial census, the second primary, if necessary, shall be held on the second primary election date for county officers in that year, and the general election shall be held on the general election date for county officers in that year.
    2. Nonpartisan primary and election method under G.S. 163-294, the primary shall be held on the primary election date for county officers in the second year following a federal decennial census, and the election shall be held on the date for the second primary for county officers in that year.
    3. Nonpartisan plurality election method under G.S. 163-292, the election shall be held on the primary election date for county officers in the second year following a federal decennial census.
    4. Election and runoff method under G.S. 163-293, the election shall be held on the primary election date for county officers in the second year following a federal decennial census, and the runoffs, if necessary, shall be held on the date for the second primary for county officers in that year.
  5. This section does not apply to any municipality that, under its charter, is not scheduled to hold an election in the year following a federal decennial census.

by the end of the third business day before the opening of the filing period, the election shall be held on the regular schedule using the current electoral districts.

The organizational meeting of the new council may be held at any time after the results of the election have been officially determined and published, but not later than the time and date of the first regular meeting of the council in November of the second year following a federal decennial census, except in the case of partisan municipal elections, when the organizational meeting shall be held not later than the time and date of the first regular meeting of the council in December of the second year following a federal decennial census.

History

(1989 (Reg. Sess., 1990), c. 1012, s. 2; 1999-227, s. 4; 2000-140, s. 34; 2002-159, s. 52; 2009-414, s. 1; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.)

Re-recodification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled 'Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification, in consultation with the State Ethics Commission, the State Board of Elections, the Secretary of State, and the new Bipartisan State Board of Elections and Ethics Enforcement. Pursuant to this authority, the Revisor of Statutes substituted "Bipartisan State Board of Elections and Ethics Enforcement" for "State Board of Elections" near the end of subsection (a); substituted "163A-1615" for "163-291" in subdivision (d)(1); substituted "163A-1618" for "163-294" in subdivision (d)(2); substituted "163A-1616" for "163-292" in subdivision (d)(3); and substituted "163A-1617" for "163-293" in subdivision (d)(4).

Session Laws 2018-146, ss. 3.1(a), (b) and 6.1, repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the changes to the references in this section.

Editor's Note. - Session Laws 1999-227, s. 3, contains findings of the General Assembly regarding, in part, the use of census data for congressional redistricting.

Effect of Amendments. - Session Laws 2009-414, s. 1, effective August 5, 2009, in the section heading, substituted "a federal decennial census" for "2000 census"; in subsection (a), substituted "decennial census information" for "census information in 2001"; in subsection (b), substituted "the two years following a federal decennial census" for "2001 or 2002"; in subsection (d), substituted "the second year following a federal decennial census" or "that year" for "2002" throughout; and added subsection (e).

ARTICLE 4A. Extension of Corporate Limits.

Part 1. Extension by Petition.

Sec.

Part 2. Annexation by Cities of Less Than 5,000.

Part 3. Annexation by Cities of 5,000 or More.

Part 4. Annexation of Noncontiguous Areas.

Part 4A. Effective Dates of Certain Annexation Ordinances.

Part 5. Property Tax Liability of Newly Annexed Territory.

Part 6. Annexation Agreements.

Part 7. Annexations Initiated by Municipalities.

Part 8. Recording and Reporting.

Local Modification. - (As to this Article) Municipalities in Craven County: 1985, c. 92, s. 2; town of Butner: 2007-269, s. 1.1 (restrictions on annexation); town of Wallburg: 2004-37, s. 1 (shall not extend boundaries into Forsyth County); village of Pinehurst: 1985, c. 379, s. 4. (As to Article 4A) Special Airport District for Burke and Caldwell: 2001-306, s. 3.1.

PART 1. EXTENSION BY PETITION.

§§ 160A-24 through 160A-28: Repealed by Session Laws 1983, c. 636, s. 26.

Editor's Note. - Session Laws 1983, c. 636, which repealed these sections, in s. 37.1, as amended by Session Laws 1983, c. 768, s. 25, provided: "The General Assembly intends by this act to repeal all acts and provisions of acts that modify the application to particular cities and towns of Parts 2 and 3 of Article 4A of Chapter 160A of the General Statutes or that exempt particular cities or towns from the application of either or both of those two Parts. Therefore, all such acts and provisions of acts, even if not specifically listed and repealed in Sections 26 through 35.4 of this act, are repealed. Neither this section nor Sections 26 through 35.4 of this act shall affect any annexation in progress on the dates of ratification of this act under any of the repealed or amended sections."

Section 38 of Session Laws 1983, c. 636 provided: "This act shall be effective with respect to all annexations where resolutions of intent are adopted on or after the date of ratification of this act, except that Sections 36 and 37 shall become effective with respect to all annexations where resolutions of intent are adopted on or after July 1, 1984, Sections 25.1 through 35.5 and Section 37.1 are effective upon ratification and Section 25 shall become effective as provided in that section. No annexation where a resolution of intent was adopted prior to the date of ratification of this act shall be affected by this act except as provided in Section 25."

The act was ratified June 29, 1983.

§ 160A-29. Map of annexed area, copy of ordinance and election results recorded in the office of register of deeds.

Whenever the limits of any municipal corporation are enlarged, in accordance with the provisions of this Article, it shall be the duty of the mayor of the city or town to cause an accurate map of such annexed territory, together with a copy of the ordinance duly certified, and the official results of the election, if conducted, to be recorded in the office of the register of deeds of the county or counties in which such territory is situated and in the office of the Secretary of State. The documents required to be filed with the Secretary of State under this section shall be filed not later than 30 days following the effective date of the annexation ordinance. All documents shall have an identifying number affixed thereto and shall conform in size in accordance with rules prescribed by the Secretary. Failure to file within 30 days shall not affect the validity of the annexation. Any annexation shall be reported as part of the Boundary and Annexation Survey of the United States Bureau of the Census.

History

(1947, c. 725, s. 6; 1973, c. 426, s. 74; 1987, c. 715, s. 6; c. 879, s. 3; 1989, c. 440, s. 7; 1991, c. 586, s. 1.)

Local Modification. - (As to Article 4A) Bladen: 1991 (Reg. Sess., 1992), c. 807, ss. 2, 3; Cabarrus and municipalities located therein: 1987, c. 233, s. 2; 1991, c. 685, s. 7; (As to Article 4A) Davidson: 2012-54; New Hanover: 1997-415; Orange and municipalities located therein: 1987, c. 233, s. 2; 1991, c. 685, s. 7; (As to Article 4A) city of Durham: 1993, c. 342, s. 1; 2014-47, s. 4; (As to Article 4A) city of Reidsville: 1997-360; city of Washington: 1993 (Reg. Sess., 1994), c. 713, s. 1; (as to Part 1) town of Dobbins Heights: 1983, c. 658; (As to Article 4A) town of Holden Beach: 1991, c. 638, s. 1; (As to Article 4A) town of Lewisville: 1991, c. 116, s. 1; (As to Article 4A) town of Middlesex: 1993, c. 480; town of Oak Ridge: 1998-113; (As to Article 4A) town of Swepsonville: 1997-448, s. 2.

Cross References. - As to effective date of annexation ordinances adopted under Article 4A of Chapter 160A, see G.S. 160A-58.9A.

Twelve-year Prohibition on Involuntary Annexation. - Session Laws 2012-3, s. 3, effective July 1, 2012, provides: "Twelve-year prohibition on involuntary annexation. - All areas affected by the annexation ordinances described in Section 4 of this act shall not be subject to any annexation proceeding, other than a voluntary annexation under Part 1 or Part 4 of Article 4A of Chapter 160A of the General Statutes, or local act of the General Assembly, for a period of 12 years from and after the effective date of this act. After the 12-year period, the area may be subject to annexation in accordance with State law effective at that time."

Session Laws 2012-3, s. 4, provides: "Repealed involuntary annexation ordinances.

"(1) Kinston annexation ordinance, as described in House Bill 5, First Edition, 2011 Regular Session.

"(2) Lexington annexation ordinance, as described in House Bill 37, First Edition, 2011 Regular Session.

"(3) Rocky Mount annexation ordinance, as described in House Bill 56, First Edition, 2011 Regular Session.

"(4) Wilmington annexation ordinance, described in House Bill 180, First Edition, 2011 Regular Session.

"(5) Asheville/Biltmore Lake annexation ordinance, as described in House Bill 236, First Edition, 2011 Regular Session.

"(6) Marvin annexation ordinance, affecting the area described in RS 2008-02-02, a resolution of the Village of Marvin Council.

"(7) Southport annexation ordinance, affecting 'Area A' and 'Area B,' as described in City of Southport annexation ordinance, adopted June 9, 2011.

"(8) Goldsboro annexation ordinance, affecting the area described in Senate Bill 314, First Edition, 2011 Regular Session.

"(9) Fayetteville Gates Four annexation ordinance, as described in House Bill 231, First Edition, 2011 Regular Session."

Session Laws 2012-103, s. 2, effective June 29, 2012, provides: "Twelve-year prohibition on involuntary annexation. - All areas affected by the annexation ordinances described in Section 3 of this act shall not be subject to any annexation proceeding, other than a voluntary annexation under Part 1 or Part 4 of Article 4A of Chapter 160A of the General Statutes, or local act of the General Assembly, for a period of 12 years from and after the effective date of this act. After the 12-year period, the area may be subject to annexation in accordance with State law effective at that time."

Session Laws 2012-103, s. 3, provides: "Repealed involuntary annexation ordinances. -

"(1) Elizabethtown Annexation Ordinance 2011-04 (Area A) adopted June 6, 2011.

"(2) Elizabethtown Annexation Ordinance 2011-05 (Area B) adopted June 6, 2011.

"(3) Elizabethtown Annexation Ordinance 2011-06 (Area C) adopted June 6, 2011.

"(4) Elizabethtown Annexation Ordinance 2011-07 (Area D) adopted June 6, 2011."

Session Laws 2012-104, s. 2, effective June 29, 2012, provides: "Twelve-year prohibition on involuntary annexation. - All areas affected by the annexation ordinances described in Section 3 of this act shall not be subject to any annexation proceeding, other than a voluntary annexation under Part 1 or Part 4 of Article 4A of Chapter 160A of the General Statutes, or local act of the General Assembly, for a period of 12 years from and after the effective date of this act. After the 12-year period, the area may be subject to annexation in accordance with State law effective at that time."

Session Laws 2012-104, s. 3, provides: "Repealed involuntary annexation ordinances. -

"(1) Elizabethtown Annexation Ordinance 2011-09 (Area J) adopted June 6, 2011.

"(2) Elizabethtown Annexation Ordinance 2011-10 (Area N) adopted June 6, 2011.

"(3) Elizabethtown Annexation Ordinance 2011-07 (Area Q) adopted June 6, 2011."

Editor's Note. - Session Laws 2012-3, s. 6, is a severability clause.

Session Laws 2012-103, s. 4, is a severability clause.

Session Laws 2012-104, s. 4, is a severability clause.

CASE NOTES

As to the constitutionality of this Article, see Forsyth Citizens Opposing Annexation v. City of Winston-Salem, 67 N.C. App. 164, 312 S.E.2d 517, cert. denied and appeal dismissed, 310 N.C. 743, 315 S.E.2d 701, appeal dismissed, 469 U.S. 802, 105 S. Ct. 57, 83 L. Ed. 2d 8 (1984).

Right to Annexation Conditioned on Compliance with Duty to Create Record. - For an annexation ordinance to be valid, the record must show prima facie complete and substantial compliance with Article 4A of G.S. 160A as a condition precedent to the municipality's right to annex the territory. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

If Record Is Complete, Burden of Showing Irregularity Shifts to Those Opposing Annexation. - Once a municipality has made its prima facie showing of compliance with this Article, the burden shifts to those opposing annexation to prove either a procedural irregularity in the annexation process materially prejudicing the rights of those opposing annexation or a failure on the part of the municipality to comply with statutory prerequisites to annexation as a matter of fact. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).


§ 160A-30. Surveys of proposed new areas.

The governing bodies of the cities and towns after five days' written notice to the owner of record or persons in possession of the premises are hereby authorized to enter upon any lands to make surveys or examinations as may be necessary in carrying out the mapping requirements of proposed annexations under any provision of Article 4A of Chapter 160A; provided, the city or town authorizing such entry shall make reimbursement for any damage resulting from such activity.

History

(1947, c. 725, s. 7; 1973, c. 426, s. 74; 1975, c. 312.)

Legal Periodicals. - For survey of 1980 constitutional law, see 59 N.C.L. Rev. 1093 (1981).

§ 160A-31. Annexation by petition.

  1. The governing board of any municipality may annex by ordinance any area contiguous to its boundaries upon presentation to the governing board of a petition signed by the owners of all the real property located within such area. The petition shall be signed by each owner of real property in the area and shall contain the address of each such owner.
  2. The petition shall be prepared in substantially the following form: DATE:                To the ______________ (name of governing board) of the (City or Town) of ____________      1. We the undersigned owners of real property respectfully request that the area described in paragraph 2 below be annexed to the (City or Town) of ____________       2. The area to be annexed is contiguous to the (City or Town) of ____________ and the boundaries of such territory are as follows: ______________________________________________________________________________     (b1)  Notwithstanding the provisions of subsections (a) and (b) of this section, if fifty-one percent (51%) of the households in an area petitioning for annexation pursuant to this section have incomes that are two hundred percent (200%) or less than the most recently published United States Census Bureau poverty thresholds, the governing board of any municipality shall annex by ordinance any area the population of which is no more than ten percent (10%) of that of the municipality and one-eighth of the aggregate external boundaries of which are contiguous to its boundaries, upon presentation to the governing board of a petition signed by the owners of at least seventy-five percent (75%) of the parcels of real property in that area. A municipality shall not be required to adopt more than one ordinance under this subsection within a 36-month period.     (b2)  The petition under subsection (b1) of this section shall be prepared in substantially the following form: DATE:                To the ______________ (name of governing board) of the (City or Town) of ____________      1. We the undersigned owners of real property believe that the area described in paragraph 2 below meets the requirements of G.S. 160A-31(b1) and respectfully request that the area described in paragraph 2 below be annexed to the (City or Town) of ____________.      2. The area to be annexed is contiguous to the (City or Town) of ____________, and the boundaries of such territory are as follows: ______________________________________________________________________________     (c)  Upon receipt of the petition, the municipal governing board shall cause the clerk of the municipality to investigate the sufficiency thereof and to certify the result of the investigation. For petitions received under subsection (b1) or (j) of this section, the clerk shall receive the evidence provided under subsection (l) of this section before certifying the sufficiency of the petition. Upon receipt of the certification, the municipal governing board shall fix a date for a public hearing on the question of annexation, and shall cause notice of the public hearing to be published once in a newspaper having general circulation in the municipality at least 10 days prior to the date of the public hearing; provided, if there be no such paper, the governing board shall have notices posted in three or more public places within the area to be annexed and three or more public places within the municipality.     (d)  At the public hearing persons resident or owning property in the area described in the petition and persons resident or owning property in the municipality shall be given an opportunity to be heard. The governing board shall then determine whether the petition meets the requirements of this section. Upon a finding that the petition that was not submitted under subsection (b1) or (j) of this section meets the requirements of this section, the governing board shall have authority to pass an ordinance annexing the territory described in the petition. The governing board shall have authority to make the annexing ordinance effective immediately or on the June 30 after the date of the passage of the ordinance or the June 30 of the following year after the date of passage of the ordinance.     (d1)  Upon a finding that a petition submitted under subsection (j) of this section meets the requirements of this section, the governing body shall have the authority to adopt an annexation ordinance for the area with an effective date no later than 24 months after the adoption of the ordinance.     (d2)  Upon a finding that a petition submitted under subsection (b1) of this section meets the requirements of this section, the governing body shall, within 60 days of the finding, estimate the capital cost to the municipality of extending water and sewer lines to all parcels within the area covered by the petition and estimate the annual debt service payment that would be required if those costs were financed by a 20-year revenue bond. If the estimated annual debt service payment is less than five percent (5%) of the municipality's annual water and sewer systems revenue for the most recent fiscal year, then the governing body shall within 30 days adopt an annexation ordinance for the area with an effective date no later than 24 months after the adoption of the ordinance. If the estimated annual debt service payment is greater than or equal to five percent (5%) of the municipality's annual water and sewer systems revenue for the most recent fiscal year, then the governing body may adopt a resolution declining to annex the area. If such a resolution is adopted, the governing body shall immediately submit a request to the Local Government Commission to certify that its estimate of the annual debt service payment is reasonable based on established governmental accounting principles.      (1) If the Local Government Commission certifies the estimate, the municipality is not required to annex the area and no petition to annex the area may be submitted under subsection (b1) of this section for 36 months following the certification. During the 36-month period, the municipality shall make ongoing, annual good faith efforts to secure Community Development Block Grants or other grant funding for extending water and sewer service to all parcels in the areas covered by the petition. If sufficient funding is secured so that the estimated capital cost to the municipality for extending water and sewer service, less the funds secured, would result in an annual debt service payment cost to the municipality of less than five percent (5%) of the municipality's annual water and sewer systems revenue for the most recent fiscal year, then the governing body shall within 30 days adopt an annexation ordinance for the area with an effective date no later than 24 months after the adoption of the ordinance.      (2) If the Local Government Commission notifies the governing board that the estimates are not reasonable based on established governmental accounting principles and that a reasonable estimate of the annual debt service payment is less than five percent (5%) of the municipality's annual water and sewer systems revenue for the most recent fiscal year, then the governing body shall within 30 days of the notification adopt an annexation ordinance for the area with an effective date no later than 24 months after the adoption of the ordinance.     (d3)  Municipal services shall be provided to an area annexed under subsections (b1) and (j) of this section in accordance with the requirements of Part 7 of this Article.     (e)  From and after the effective date of the annexation ordinance, the territory and its citizens and property shall be subject to all debts, laws, ordinances and regulations in force in such municipality and shall be entitled to the same privileges and benefits as other parts of such municipality. Real and personal property in the newly annexed territory on the January 1 immediately preceding the beginning of the fiscal year in which the annexation becomes effective is subject to municipal taxes as provided in G.S. 160A-58.10. If the effective date of annexation falls between June 1 and June 30, and the effective date of the privilege license tax ordinance of the annexing municipality is June 1, then businesses in the area to be annexed shall be liable for taxes imposed in such ordinance from and after the effective date of annexation.     (f)  For purposes of this section, an area shall be deemed "contiguous" if, at the time the petition is submitted, such area either abuts directly on the municipal boundary or is separated from the municipal boundary by the width of a street or street right-of-way, a creek or river, or the right-of-way of a railroad or other public service corporation, lands owned by the municipality or some other political subdivision, or lands owned by the State of North Carolina. A connecting corridor consisting solely of a street or street right-of-way may not be used to establish contiguity. In describing the area to be annexed in the annexation ordinance, the municipal governing board may include within the description any territory described in this subsection which separates the municipal boundary from the area petitioning for annexation.     (g)  The governing board may initiate annexation of contiguous property owned by the municipality by adopting a resolution stating its intent to annex the property, in lieu of filing a petition. The resolution shall contain an adequate description of the property, state that the property is contiguous to the municipal boundaries and fix a date for a public hearing on the question of annexation. Notice of the public hearing shall be published as provided in subsection (c) of this section. The governing board may hold the public hearing and adopt the annexation ordinance as provided in subsection (d) of this section. (h)  A city council which receives a petition for annexation under this section may by ordinance require that the petitioners file a signed statement declaring whether or not vested rights with respect to the properties subject to the petition have been established under G.S. 160A-385.1 or G.S. 153A-344.1. If the statement declares that such rights have been established, the city may require petitioners to provide proof of such rights. A statement which declares that no vested rights have been established under G.S. 160A-385.1 or G.S. 153A-344.1 shall be binding on the landowner and any such vested right shall be terminated.     (i)  A municipality has no authority to adopt a resolution or petition itself under this Part for annexation of property it does not own or have any legal interest in. For the purpose of this subsection, a municipality has no legal interest in a State-maintained street unless it owns the underlying fee and not just an easement.     (j)  Using the procedures under this section, the governing board of any municipality may annex by ordinance any distressed area contiguous to its boundaries upon presentation to the governing board of a petition signed by at least one adult resident of at least two-thirds of the resident households located within such area. For purposes of this subsection, a "distressed area" is defined as an area in which at least fifty-one percent (51%) of the households in the area petitioning to be annexed have incomes that are two hundred percent (200%) or less than the most recently published United States Census Bureau poverty thresholds. The municipality may require reasonable proof that the petitioner in fact resides at the address indicated.     (k)  The petition under subsection (j) of this section shall be prepared in substantially the following form: DATE:               To the ______________ (name of governing board) of the (City or Town) of ____________      1. We the undersigned residents of real property believe that the area described in paragraph 2 below meets the requirements of G.S. 160A-31(j) and respectfully request that the area described in paragraph 2 below be annexed to the (City or Town) of____________.      2. The area to be annexed is contiguous to the (City or Town) of ________ ________, and the boundaries of such territory are as follows: _____________________________________________________________________________
  3. For purposes of determining whether the percentage of households in the area petitioning for annexation meets the poverty thresholds under subsections (b1) and (j) of this section, the petitioners shall submit to the municipal governing board any reasonable evidence that demonstrates the area in fact meets the income requirements of that subsection. The evidence presented may include data from the most recent federal decennial census, other official census documents, signed affidavits by at least one adult resident of the household attesting to the household size and income level, or any other documentation verifying the incomes for a majority of the households within the petitioning area. Petitioners may select to submit name, address, and social security number to the clerk, who shall in turn submit the information to the Department of Revenue. Such information shall be kept confidential and is not a public record. The Department shall provide the municipality with a summary report of income for households in the petitioning area. Information for the report shall be gleaned from income tax returns, but the report submitted to the municipality shall not identify individuals or households.

History

(1947, c. 725, s. 8; 1959, c. 713; 1973, c. 426, s. 74; 1975, c. 576, s. 2; 1977, c. 517, s. 4; 1987, c. 562, s. 1; 1989 (Reg. Sess., 1990), c. 996, s. 3; 2011-57, s. 3; 2011-396, s. 10.)

Local Modification. - City of Asheville: 2005-139, s. 2 (Applicable to petitions for annexation received on or after June 30, 2005); city of Concord: 2004-102, s. 1; city of Durham: 1987, c. 606; 1993, c. 342, s. 1; 2013-386, s. 3; 2015-82, s. 1 (as to subsection (i)); city of Fayetteville: 1969, c. 715; city of Greensboro: 1959, c. 1137, s. 18; city of Kinston: 2017-85, s. 3(a) (as to subsection (a); city of Mount Holly: 2000-24, s. 1; city of Reidsville: 1997-343; town of Atlantic Beach: 1959, c. 395; town of Huntersville: 1999-19, s. 1; 1999-337, s. 45; town of Morrisville: 1989, c. 389, s. 1.

Editor's Note. - Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

Effect of Amendments. - Session Laws 2011-57, s. 3, effective April 28, 2011, added subsection (i).

Session Laws 2011-396, s. 10, effective July 1, 2011, rewrote the section to the extent that a detailed comparison is impracticable. For applicability, see editor's notes.

Legal Periodicals. - For survey of 1981 administrative law, see 60 N.C.L. Rev. 1165 (1982).

For 1984 survey, "Competitive Annexation Among Municipalities: North Carolina Adopts the Prior Jurisdiction Rule," see 63 N.C.L. Rev. 1260 (1985).

For casenote, "Carolina Power & Light v. City of Asheville Municipal Annexation in North Carolina: The Pros, the Cons and the Judiciary," see 27 N.C. Cent. L.J. 224 (2005).

CASE NOTES

Deliberate preference for voluntary annexation is incorporated into the law. Town of Hazelwood v. Town of Waynesville, 320 N.C. 89, 357 S.E.2d 686, cert. denied, 320 N.C. 639, 360 S.E.2d 106 (1987).

G.S. 160A-37(e), 160A-49(e), and this section are in pari materia. Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979).

No Authorization to Annex Only Part of Area Described. - If the General Assembly had intended to authorize cities proceeding pursuant to a petition for voluntary annexation to annex merely a part of the area described in the petition, it would have so provided, as it has explicitly done in G.S. 160A-37(e) and 160A-49(e). The absence of such statutory authorization, in light of the explicit provisions for it in the involuntary annexation statutes, is cogent evidence that the General Assembly intended a petition for voluntary annexation to stand or fall as a unity. Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979).

"Contiguous". - North Carolina annexation statutes do not permit municipality to annex by voluntary means tract of land that is contiguous with its municipal boundaries only by virtue of second tract of land that is being annexed simultaneously. City of Kannapolis v. City of Concord, 326 N.C. 512, 391 S.E.2d 493 (1990).

Standing to Contest Annexation. - Because this section describes a voluntary annexation undertaken at the request of land owners and does not authorize suit by neighboring municipalities, plaintiff town did not have standing to contest the annexation scheme of defendant neighboring town; only if another town owned property in the annexed area, or if both towns were simultaneously attempting to annex controverted property, could there be a justiciable controversy, giving one town standing to contest the annexation by the other, and, even then, G.S. 160A-360 provides a way to resolve such a conflict. Town of Ayden v. Town of Winterville, 143 N.C. App. 136, 544 S.E.2d 821 (2001).

Annexation of Undeveloped Lands Only on Petition. - Large tracts of agricultural or vacant lands, where no evidence of urban development can be shown, should not be annexed in any event, except upon petition of the landowners. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532, 135 S.E.2d 574 (1964).

Property owners who have signed a voluntary annexation petition have the right to withdraw from the petition at any time up until the governing municipal body has taken action upon the petition by annexing the area described in the petition. Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979).

Resolution of intent is "first mandatory public procedural step" for purposes of the prior jurisdiction rule. Town of Hazelwood v. Town of Waynesville, 320 N.C. 89, 357 S.E.2d 686, cert. denied, 320 N.C. 639, 360 S.E.2d 106 (1987).

The adoption of a resolution of intent is the critical date for determining whether a municipality utilizing involuntary annexation procedures has prior jurisdiction over the same territory being considered for voluntary annexation by a different municipality. Town of Hazelwood v. Town of Waynesville, 320 N.C. 89, 357 S.E.2d 686, cert. denied, 320 N.C. 639, 360 S.E.2d 106 (1987).

Property Not Contiguous. - Where city sought to annex private property and municipal property, and where municipal property was not contiguous with city but was contiguous to private property, city could not annex municipal property on the theory that the area as a whole was contiguous; the private property and municipal property were annexed by different procedures with independent requirements and could not be considered one whole area for the purpose of satisfying the contiguity requirement. City of Kannapolis v. City of Concord, 95 N.C. App. 591, 383 S.E.2d 402, rev'd on other grounds, 326 N.C. 512, 391 S.E.2d 493 (1990).

At the time town purported to annex defendant counties' property, the property was not contiguous and the attempted annexation was invalid. Town of Valdese v. Burke, Inc., 125 N.C. App. 688, 482 S.E.2d 24 (1997).

Effect of Withdrawal. - Where six owners of real property located within the area described in a voluntary annexation petition validly withdrew their signatures from the petition before the annexation ordinance was passed, the city governing body was without jurisdiction to take any further action on the petition as submitted, and the entire ordinance purporting to annex all the area described in the petition was void. Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979).

Condemnor-County May Enjoin Municipal Annexation Proceeding. - When a county initiates condemnation of property for a sanitary landfill, and the property is being considered for voluntary annexation into a municipality, the county may proceed with the condemnation action. The county is entitled to an injunction enjoining the annexation proceeding, and the property owners and the municipality may raise the proposed annexation in the answer to the condemnation complaint, for appropriate consideration by the court. Yandle v. Mecklenburg County, 85 N.C. App. 382, 355 S.E.2d 216 (1987).

Annexation Held Proper. - City's division of an annexation area into sub-areas did not result in the improper annexation of an "island" not contiguous with the city limits as of the date of the original resolution of intent, although the boundaries of the sub-area, if considered in isolation, rather than as a sub-part of the area originally identified and eventually annexed, were not contiguous with the city limits on the date of the initial resolution. U.S. Cold Storage, Inc. v. City of Lumberton, 170 N.C. App. 411, 612 S.E.2d 415 (2005).

Annexation Held Void. - City's annexation of three developments was void despite utility agreements with the developers barring future lot owners from withdrawing consent to an annexation. No easements were created through the agreements, deeds to non-consenting lot owners did not refer to the agreements, and all owners had to consent under G.S. 160A-31(a). Cunningham v. City of Greensboro, 212 N.C. App. 86, 711 S.E.2d 477 (2011).

Applied in Texfi Indus., Inc. v. City of Fayetteville, 301 N.C. 1, 269 S.E.2d 142 (1980).

Cited in Thompson v. Whitley, 344 F. Supp. 480 (E.D.N.C. 1972); Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820 (1981); Town of Hazelwood v. Town of Waynesville, 83 N.C. App. 670, 351 S.E.2d 558 (1987); South Shell Inv. v. Town of Wrightsville Beach, 703 F. Supp. 1192 (E.D.N.C. 1988).


§ 160A-31.1. Assumption of debt.

  1. If the city has annexed under this Part any area which is served by a rural fire department and which is in:
    1. An insurance district defined under G.S. 153A-233;
    2. A rural fire protection district under Article 3A of Chapter 69 of the General Statutes; or
    3. A fire service district under Article 16 of Chapter 153A of the General Statutes,
  2. The annual payments from the city to the rural fire department on such shared debt service shall be calculated as follows:
    1. The rural fire department shall certify to the city each year the amount that will be expended for debt service subject to be shared by the city as provided by subsection (a) of this section; and
    2. The amount determined under subdivision (1) of this subsection shall be multiplied by the percentage determined by dividing the assessed valuation of the area of the district annexed by the assessed valuation of the entire district, each such valuation to be fixed as of the date the annexation ordinance becomes effective.
  3. This section does not apply in any year as to any annexed area(s) for which the payment calculated under this section as to all annexation ordinances adopted under this Part by a city during a particular calendar year does not exceed one hundred dollars ($100.00).
  4. The city and rural fire department shall jointly present a payment schedule to the Local Government Commission for approval and no payment may be made until such schedule is approved. The Local Government Commission shall approve a payment schedule agreed upon between the city and the rural fire department in cases where the assessed valuation of the district may not readily be determined, if there is a reasonable basis for the agreement.

then beginning with the effective date of annexation the city shall pay annually a proportionate share of any payments due on any debt (including principal and interest) relating to facilities or equipment of the rural fire department, if the debt was existing at the time of submission of the petition for annexation to the city under this Part. The rural fire department shall make available to the city not later than 30 days following a written request from the city, information concerning such debt. The rural fire department forfeits its rights under this section if it fails to make a good faith response within 45 days following receipt of the written request for information from the city, provided that the city's written request so states by specific reference to this section.

History

(1989, c. 598, s. 2.)

§ 160A-32: Repealed by Session Laws 1983, c. 636, s. 26.1.

Editor's Note. - Session Laws 1983, c. 636, which repealed this section, in s. 37.1, as amended by Session Laws 1983, c. 768, s. 25, provided: "The General Assembly intends by this act to repeal all acts and provisions of acts that modify the application to particular cities and towns of Parts 2 and 3 of Article 4A of Chapter 160A of the General Statutes or that exempt particular cities or towns from the application of either or both of those two Parts. Therefore, all such acts and provisions of acts, even if not specifically listed and repealed in Sections 26 through 35.4 of this act, are repealed. Neither this section nor Sections 26 through 35.4 of this act shall affect any annexation in progress on the dates of ratification of this act under any of the repealed or amended sections."

Section 38 of Session Laws 1983, c. 636 provided: "This act shall be effective with respect to all annexations where resolutions of intent are adopted on or after the date of ratification of this act, except that Sections 36 and 37 shall become effective with respect to all annexations where resolutions of intent are adopted on or after July 1, 1984, Sections 25.1 through 35.5 and Section 37.1 are effective upon ratification and Section 25 shall become effective as provided in that section. No annexation where a resolution of intent was adopted prior to the date of ratification of this act shall be affected by this act except as provided in Section 25."

The act was ratified June 29, 1983.

PART 2. ANNEXATION BY CITIES OF LESS THAN 5,000.

§§ 160A-33 through 160A-42: Repealed by Session Laws 2011-396, s. 1, effective July 1, 2011. For applicability, see editor's note.

History

(§ 160A-33: 1959, c. 1010, s. 1; 1973, c. 426, s. 74; 1983, c. 636, s. 8; repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-34: 1959, c. 1010, s. 2; 1973, c. 426, s. 74; 1985, c. 92, s. 1; repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-35: 1959, c. 1010, s. 3; 1973, c. 426, s. 74; 1983, c. 636, ss. 7.1, 16, 18; 1985, c. 610, ss. 1, 5, 7; 1989, c. 598, s. 5; 1991, c. 25, s. 1; c. 761, s. 30; 1998-150, s. 4; repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-35.1: 1991, c. 25, s. 1; c. 761, s. 30; 1998-150, s. 5; repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-36: 1959, c. 1010, s. 4; 1973, c. 426, s. 74; 1985, c. 757, s. 205(c); 1993 (Reg. Sess., 1994), c. 696, s. 6; c. 714, s. 6; 1998-150, s. 6; repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-37: 1959, c. 1010, s. 5; 1967, c. 1226, s. 1; 1973, c. 426, s. 74; 1975, c. 576, s. 3; 1977, c. 517, s. 5; 1983, c. 636, ss. 2, 4, 6, 36; 1985, c. 384, s. 1; 1987, c. 44, s. 1; 1989, c. 598, s. 11; 1998-150, s. 7; 2001-487, s. 36; 2006-264, s. 17(a)-(c); repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-37.1: 1983, c. 636, s. 20; 1987, c. 827, s. 1; repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-37.2: 1983, c. 636, s. 22; 1998-150, s. 8; repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-37.3: 1985, c. 610, s. 3; 1987, c. 827, s. 1; 1989, c. 598, s. 6; 1998-150, s. 9; 2006-193, s. 1; repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-38: 1959, c. 1010, s. 6; 1973, c. 426, s. 74; 1977, c. 148, ss. 6, 7; 1989, c. 598, s. 7; 1995 (Reg. Sess., 1996), c. 746, s. 4; 1998-150, s. 10; 1999-148, s. 2; 2009-570, s. 27; repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-39: 1959, c. 1010, s. 7; 1973, c. 426, s. 74; 1987, c. 715, s. 7; c. 879, s. 3; 1989, c. 440, s. 8; 1991, c. 586, s. 2; repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-40: 1959, c. 1010, s. 8; 1973, c. 426, s. 74; repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-41: 1959, c. 1010, s. 9; 1973, c. 426, s. 74; repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-42: 1959, c. 1010, s. 10; 1973, c. 426, s. 74; 1998-150, s. 11; repealed by 2011-396, s. 1, effective July 1, 2011.)

Cross References. - As to effective date of annexation ordinances adopted under Article 4A of Chapter 160A, see G.S. 160A-58.9A. For current provisions as to annexations initiated by municipalities, see G.S. 160A-58.50 et seq.

Editor's Note. - Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

Former G.S. 160A-33 through 160A-42, repealed by Session Laws 2011-396, s. 1, pertained to annexation by cities having a population of less than 5,000 persons. For current provisions, see G.S. 160A-58.50 et seq.

Former G.S. 160A-36, was amended by Session Laws 2011-363, s. 2, effective June 27, 2011, and applicable to annexations of property used for bona fide farm purposes that were initiated by municipalities on or after that date or are pending on that date, by adding a subsection (f), which read: "(f) As used in this subsection, 'bona fide farm purposes' is as described in G.S. 153A-340. As used in this subsection, 'property' means a single tract of property or an identifiable portion of a single tract. Property that is being used for bona fide farm purposes on the date of the resolution of intent to consider annexation may not be annexed without the written consent of the owner or owners of the property."

§§ 160A-43, 160A-44: Repealed by Session Laws 1983, c. 636, s. 27.

Editor's Note. - Session Laws 1983, c. 636, which repealed these sections, in s. 37.1, as amended by Session Laws 1983, c. 768, s. 25, provided: "The General Assembly intends by this act to repeal all acts and provisions of acts that modify the application to particular cities and towns of Parts 2 and 3 of Article 4A of Chapter 160A of the General Statutes or that exempt particular cities or towns from the application of either or both of those two Parts. Therefore, all such acts and provisions of acts, even if not specifically listed and repealed in Sections 26 through 35.4 of this act, are repealed. Neither this section nor Sections 26 through 35.4 of this act shall affect any annexation in progress on the dates of ratification of this act under any of the repealed or amended sections."

Section 38 of Session Laws 1983, c. 636 provided: "This act shall be effective with respect to all annexations where resolutions of intent are adopted on or after the date of ratification of this act, except that Sections 36 and 37 shall become effective with respect to all annexations where resolutions of intent are adopted on or after July 1, 1984, Sections 25.1 through 35.5 and Section 37.1 are effective upon ratification and Section 25 shall become effective as provided in that section. No annexation where a resolution of intent was adopted prior to the date of ratification of this act shall be affected by this act except as provided in Section 25."

The act was ratified June 29, 1983.

PART 3. ANNEXATION BY CITIES OF 5,000 OR MORE.

§§ 160A-45 through 160A-49: Repealed by Session Laws 2011-396, s. 7, effective July 1, 2011. For applicability, see editor's note.

History

(§ 160A-45: 1959, c. 1009, s. 1; 1973, c. 426, s. 74; 1983, c. 636, s. 9; repealed by 2011-396, s. 7, effective July 1, 2011. § 160A-46: 1959, c. 1009, s. 2; 1973, c. 426, s. 74; repealed by 2011-396, s. 7, effective July 1, 2011. § 160A-47: 1959, c. 1009, s. 3; 1973, c. 426, s. 74; 1983, c. 636, ss. 7, 10, 11, 17, 19; 1985, c. 610, ss. 2, 6, 7; 1989, c. 598, s. 8; 1991, c. 25, s. 2; c. 761, s. 31; 1998-150, s. 12; repealed by 2011-396, s. 7, effective July 1, 2011. § 160A-47.1: 1991, c. 25, s. 2; c. 761, s. 31; 1998-150, s. 13; repealed by 2011-396, s. 7, effective July 1, 2011. § 160A-48: 1959, c. 1009, s. 4; 1973, c. 426, s. 74; 1983, c. 636, s. 15; 1985, c. 757, s. 205(d); 1993 (Reg. Sess., 1994), c. 696, s. 7; c. 714, s. 7; 1998-150, s. 14; repealed by 2011-396, s. 7, effective July 1, 2011. § 160A-49: 1959, c. 1009, s. 5; 1973, c. 426, s. 74; 1975, c. 576, s. 4; 1977, c. 517, s. 6; 1983, c. 636, ss. 1, 3, 5, 6, 12-14, 37; c. 768, s. 25; 1985, c. 384, s. 1; 1987, c. 44, s. 2; 1989, c. 598, s. 12; 1998-150, s. 15; 2006-162, s. 21; 2006-264, s. 18(a); repealed by 2011-396, s. 7, effective July 1, 2011.)

Cross References. - As to annexations initiated by municipalities, see G.S. 160A-58.50 et seq.

Editor's Note. - Former G.S. 160A-48 was amended by Session Laws 2011-363, s. 3, effective June 27, 2011, and applicable to annexations of property used for bona fide farm purposes that were initiated by municipalities on or after that date or are pending on that date, by adding a subsection (g), which read: "(g) As used in this subsection, 'bona fide farm purposes' is as described in G.S. 153A-340. As used in this subsection, 'property' means a single tract of property or an identifiable portion of a single tract. Property that is being used for bona fide farm purposes on the date of the resolution of intent to consider annexation may not be annexed without the written consent of the owner or owners of the property."

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

Former Part 3 of Article 4A of Chapter 160A, which was repealed by Session Laws 2011-396, s. 7, pertained to annexation by cities having a population of 5,000 or more persons. For current provisions, see G.S. 160A-58.50 et seq. The current provisions include five sections recodified from former Part 3.


§ 160A-49.1: Recodified to G.S. 160A-58.57 by Session Laws 2011-396, s. 2, effective July 1, 2011.



§ 160A-49.2: Recodified to G.S. 160A-58.58 by Session Laws 2011-396, s. 3, effective July 1, 2011.



§ 160A-49.3: Recodified to G.S. 160A-58.59 by Session Laws 2011-396, s. 4, effective July 1, 2011.



§ 160A-50: Repealed by Session Laws 2011-396, s. 7, effective July 1, 2011. For applicability, see editor's note.

History

(1959, c. 1009, s. 6; 1973, c. 426, s. 74; 1981, c. 682, ss. 20, 21; 1983, c. 636, s. 14.1; 1989, c. 598, s. 10; 1995 (Reg. Sess., 1996), c. 746, s. 3; 1998-150, s. 18; 1999-148, s. 1; 2009-570, s. 27; repealed by Acts 2011-396, s. 7, effective July 1, 2011.)

Cross References. - As to annexations initiated by municipalities, see G.S. 160A-58.50 et seq.

Editor's Note. - Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

Former Part 3 of Article 4A of Chapter 160A, which was repealed by Session Laws 2011-396, s. 7, pertained to annexation by cities having a population of 5,000 or more persons. For current provisions, see G.S. 160A-58.50 et seq.

Effect of Amendments. - Session Laws 2009-570, s. 27, effective August 28, 2009, substituted "judgment" for "judgement" in the last sentence of subsection (i).

§ 160A-51: Recodified to G.S. 160A-58.61 by Session Laws 2011-396, s. 5, effective July 1, 2011.



§ 160A-52: Recodified to G.S. 160A-58.62 by Session Laws 2011-396, s. 6, effective July 1, 2011.



§§ 160A-53, 160A-54: Repealed by Session Laws 2011-396, s. 7, effective July 1, 2011. For applicability, see editor's note.

History

(§ 160A-53: 1959, c. 1009, s. 9; 1973, c. 426, s. 74; repealed 2011-396, s. 7, effective July 1, 2011. § 160A-54: 1959, c. 1009, s. 10; 1973, c. 426, s. 74; 1998-150, s. 19; repealed 2011-396, s. 7, effective July 1, 2011.)

Editor's Note. - Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

Former Part 3 of Article 4A of Chapter 160A, which was repealed by Session Laws 2011-396, s. 7, pertained to annexation by cities having a population of 5,000 or more persons. For current provisions, see G.S. 160A-58.50 et seq.


§§ 160A-55, 160A-56: Repealed by Session Laws 1983, c. 636.

Editor's Note. - Session Laws 1983, c. 636, which repealed these sections, in s. 37.1, as amended by Session Laws 1983, c. 768, s. 25, provided: "The General Assembly intends by this act to repeal all acts and provisions of acts that modify the application to particular cities and towns of Parts 2 and 3 of Article 4A of Chapter 160A of the General Statutes or that exempt particular cities or towns from the application of either or both of those two Parts. Therefore, all such acts and provisions of acts, even if not specifically listed and repealed in Sections 26 through 35.4 of this act, are repealed. Neither this section nor Sections 26 through 35.4 of this act shall affect any annexation in progress on the dates of ratification of this act under any of the repealed or amended sections."

Section 38 of Session Laws 1983, c. 636 provided: "This act shall be effective with respect to all annexations where resolutions of intent are adopted on or after the date of ratification of this act, except that Sections 36 and 37 shall become effective with respect to all annexations where resolutions of intent are adopted on or after July 1, 1984, Sections 25.1 through 35.5 and Section 37.1 are effective upon ratification and Section 25 shall become effective as provided in that section. No annexation where a resolution of intent was adopted prior to the date of ratification of this act shall be affected by this act except as provided in Section 25."

Session Laws 1983, c. 636 was ratified June 29, 1983.

§ 160A-57: Reserved for future codification purposes.

PART 4. ANNEXATION OF NONCONTIGUOUS AREAS.

§ 160A-58. Definitions.

The words and phrases defined in this section have the meanings indicated when used in this Part unless the context clearly requires another meaning:

  1. "City" means any city, town, or village without regard to population, except cities not qualified to receive gasoline tax allocations under G.S. 136-41.2.
  2. "Primary corporate limits" means the corporate limits of a city as defined in its charter, enlarged or diminished by subsequent annexations or exclusions of contiguous territory pursuant to Parts 1, 2, and 3 of this Article or local acts of the General Assembly.
  3. "Satellite corporate limits" means the corporate limits of a noncontiguous area annexed pursuant to this Part or a local act authorizing or effecting noncontiguous annexations.

History

(1973, c. 1173, s. 2.)

Local Modification. - (As to Part 4) Iredell and municipalities located therein: 1989, c. 598, s. 12.1; Union: 2003-321, s. 1; (as to Part 4) town of Dobbins Heights: 1983, c. 658; town of Moorehead City and Newport: 1997-219, s. 1; 1997-363, s. 1.1; (as to Part 4) city of Sanford: 2007-43, s. 2 (shall not annex areas located within Chatham County).

Cross References. - As to effective date of annexation ordinances adopted under Article 4A of Chapter 160A, see G.S. 160A-58.9A.

Twelve-year Prohibition on Involuntary Annexation. - Session Laws 2012-3, s. 3, effective July 1, 2012, provides: "Twelve-year prohibition on involuntary annexation. - All areas affected by the annexation ordinances described in Section 4 of this act shall not be subject to any annexation proceeding, other than a voluntary annexation under Part 1 or Part 4 of Article 4A of Chapter 160A of the General Statutes, or local act of the General Assembly, for a period of 12 years from and after the effective date of this act. After the 12-year period, the area may be subject to annexation in accordance with State law effective at that time."

Session Laws 2012-3, s. 4, provides: "Repealed involuntary annexation ordinances.

"(1) Kinston annexation ordinance, as described in House Bill 5, First Edition, 2011 Regular Session.

"(2) Lexington annexation ordinance, as described in House Bill 37, First Edition, 2011 Regular Session.

"(3) Rocky Mount annexation ordinance, as described in House Bill 56, First Edition, 2011 Regular Session.

"(4) Wilmington annexation ordinance, described in House Bill 180, First Edition, 2011 Regular Session.

"(5) Asheville/Biltmore Lake annexation ordinance, as described in House Bill 236, First Edition, 2011 Regular Session.

"(6) Marvin annexation ordinance, affecting the area described in RS 2008-02-02, a resolution of the Village of Marvin Council.

"(7) Southport annexation ordinance, affecting 'Area A' and 'Area B,' as described in City of Southport annexation ordinance, adopted June 9, 2011.

"(8) Goldsboro annexation ordinance, affecting the area described in Senate Bill 314, First Edition, 2011 Regular Session.

"(9) Fayetteville Gates Four annexation ordinance, as described in House Bill 231, First Edition, 2011 Regular Session."

Session Laws 2012-103, s. 2, effective June 29, 2012, provides: "Twelve-year prohibition on involuntary annexation. - All areas affected by the annexation ordinances described in Section 3 of this act shall not be subject to any annexation proceeding, other than a voluntary annexation under Part 1 or Part 4 of Article 4A of Chapter 160A of the General Statutes, or local act of the General Assembly, for a period of 12 years from and after the effective date of this act. After the 12-year period, the area may be subject to annexation in accordance with State law effective at that time."

Session Laws 2012-103, s. 3, provides: "Repealed involuntary annexation ordinances. -

"(1) Elizabethtown Annexation Ordinance 2011-04 (Area A) adopted June 6, 2011.

"(2) Elizabethtown Annexation Ordinance 2011-05 (Area B) adopted June 6, 2011.

"(3) Elizabethtown Annexation Ordinance 2011-06 (Area C) adopted June 6, 2011.

"(4) Elizabethtown Annexation Ordinance 2011-07 (Area D) adopted June 6, 2011."

Session Laws 2012-104, s. 2, effective June 29, 2012, provides: "Twelve-year prohibition on involuntary annexation. - All areas affected by the annexation ordinances described in Section 3 of this act shall not be subject to any annexation proceeding, other than a voluntary annexation under Part 1 or Part 4 of Article 4A of Chapter 160A of the General Statutes, or local act of the General Assembly, for a period of 12 years from and after the effective date of this act. After the 12-year period, the area may be subject to annexation in accordance with State law effective at that time."

Session Laws 2012-104, s. 3, provides: "Repealed involuntary annexation ordinances. -

"(1) Elizabethtown Annexation Ordinance 2011-09 (Area J) adopted June 6, 2011.

"(2) Elizabethtown Annexation Ordinance 2011-10 (Area N) adopted June 6, 2011.

"(3) Elizabethtown Annexation Ordinance 2011-07 (Area Q) adopted June 6, 2011."

Editor's Note. - Session Laws 2012-3, s. 6, is a severability clause.

Session Laws 2012-103, s. 4, is a severability clause.

Session Laws 2012-104, s. 4, is a severability clause.

Legal Periodicals. - For 1984 survey, "Competitive Annexation Among Municipalities: North Carolina Adopts the Prior Jurisdiction Rule," see 63 N.C.L. Rev. 1260 (1985).

CASE NOTES

Satellite corporate limits are not "municipal boundaries" as that term is used in G.S. 160A-36. Hawks v. Town of Valdese, 299 N.C. 1, 261 S.E.2d 90 (1980).

Satellite Corporate Limits. - A corporate limit is defined as a satellite only when there is no connection whatsoever between the municipality and the satellite. Williams v. Town of Kernersville, 129 N.C. App. 734, 500 S.E.2d 770, cert. denied, 349 N.C. 241, 516 S.E.2d 611 (1998).

Cited in Taylor v. City of Raleigh, 290 N.C. 608, 227 S.E.2d 576 (1976); Texfi Indus., Inc. v. City of Fayetteville, 301 N.C. 1, 269 S.E.2d 142 (1980).


§ 160A-58.1. Petition for annexation; standards.

  1. Upon receipt of a valid petition signed by all of the owners of real property in the area described therein, a city may annex an area not contiguous to its primary corporate limits when the area meets the standards set out in subsection (b) of this section. The petition need not be signed by the owners of real property that is wholly exempt from property taxation under the Constitution and laws of North Carolina, nor by railroad companies, public utilities as defined in G.S. 62-3(23), or electric or telephone membership corporations. A petition is not valid in any of the following circumstances:
    1. It is unsigned.
    2. It is signed by the city for the annexation of property the city does not own or have a legal interest in. For the purpose of this subdivision, a city has no legal interest in a State-maintained street unless it owns the underlying fee and not just an easement.
    3. It is for the annexation of property for which a signature is not required and the property owner objects to the annexation.
  2. A noncontiguous area proposed for annexation must meet all of the following standards:
    1. The nearest point on the proposed satellite corporate limits must be not more than three miles from the primary corporate limits of the annexing city.
    2. No point on the proposed satellite corporate limits may be closer to the primary corporate limits of another city than to the primary corporate limits of the annexing city, except as set forth in subsection (b2) of this section.
    3. The area must be so situated that the annexing city will be able to provide the same services within the proposed satellite corporate limits that it provides within its primary corporate limits.
    4. If the area proposed for annexation, or any portion thereof, is a subdivision as defined in G.S. 160A-376, all of the subdivision must be included.
    5. The area within the proposed satellite corporate limits, when added to the area within all other satellite corporate limits, may not exceed ten percent (10%) of the area within the primary corporate limits of the annexing city.
  3. Repealed by Session Laws 2004-203, ss. 13(a) and 13(d), effective August 17, 2004.
  4. A city may annex a noncontiguous area that does not meet the standard set out in subdivision (b)(2) of this section if the city has entered into an annexation agreement pursuant to Part 6 of this Article with the city to which a point on the proposed satellite corporate limits is closer and the agreement states that the other city will not annex the area but does not say that the annexing city will not annex the area. The annexing city shall comply with all other requirements of this section.
  5. The petition shall contain the names, addresses, and signatures of all owners of real property within the proposed satellite corporate limits (except owners not required to sign by subsection (a)), shall describe the area proposed for annexation by metes and bounds, and shall have attached thereto a map showing the area proposed for annexation with relation to the primary corporate limits of the annexing city. When there is any substantial question as to whether the area may be closer to another city than to the annexing city, the map shall also show the area proposed for annexation with relation to the primary corporate limits of the other city. The city council may prescribe the form of the petition.
  6. A city council which receives a petition for annexation under this section may by ordinance require that the petitioners file a signed statement declaring whether or not vested rights with respect to the properties subject to the petition have been established under G.S. 160A-385.1 or G.S. 153A-344.1. If the statement declares that such rights have been established, the city may require petitioners to provide proof of such rights. A statement which declares that no vested rights have been established under G.S. 160A-385.1 or G.S. 153A-344.1 shall be binding on the landowner and any such vested rights shall be terminated.

This subdivision does not apply to the Cities of Asheboro, Belmont, Claremont, Concord, Conover, Durham, Elizabeth City, Gastonia, Greenville, Hickory, Kannapolis, Locust, Marion, Mount Airy, Mount Holly, New Bern, Newton, Oxford, Randleman, Roanoke Rapids, Rockingham, Saluda, Sanford, Salisbury, Southport, Statesville, and Washington and the Towns of Ahoskie, Angier, Apex, Ayden, Belville, Benson, Bladenboro, Bridgeton, Bunn, Burgaw, Calabash, Carthage, Catawba, China Grove, Clayton, Columbia, Columbus, Cramerton, Creswell, Dallas, Dobson, Four Oaks, Franklin, Franklinton, Fuquay-Varina, Garner, Godwin, Granite Quarry, Green Level, Grimesland, Harrisburg, Holly Ridge, Holly Springs, Hookerton, Hope Mills, Huntersville, Jamestown, Kenansville, Kenly, Knightdale, Landis, Leland, Lillington, Louisburg, Maggie Valley, Maiden, Mayodan, Maysville, Middlesex, Midland, Mocksville, Morrisville, Mount Pleasant, Nashville, Oak Island, Ocean Isle Beach, Pembroke, Pine Level, Pollocksville, Princeton, Ranlo, Richlands, Rockwell, Rolesville, Rutherfordton, Shallotte, Siler City, Smithfield, Spencer, Spring Lake, Stem, Stovall, Surf City, Swansboro, Taylorsville, Troutman, Troy, Wallace, Warsaw, Watha, Waynesville, Weldon, Wendell, West Jefferson, Wilson's Mills, Windsor, Wingate, Yadkinville, Youngsville, and Zebulon.

History

(1973, c. 1173, s. 2; 1989 (Reg. Sess., 1990), c. 996, s. 4; 1997-2, s. 1; 2001-37, s. 1; 2001-72, s. 1; 2001-438, s. 1; 2002-121, s. 1; 2003-30, s. 1; 2004-203, s. 13(a), (c); 2004-57, s. 1; 2004-99, s. 1; 2004-203, ss. 13(a)-(d); 2005-52, s. 1; 2005-71, s. 1; 2005-79, s. 1; 2005-173, s. 1; 2005-433, s. 9; 2006-62, s. 1; 2006-122, s. 1; 2006-130, s. 1; 2007-17, s. 1; 2007-26, ss. 1, 2(a); 2007-62, s. 1; 2007-225, s. 1; 2007-311, s. 1; 2007-342, s. 1; 2008-24, s. 1; 2008-30, s. 1; 2009-40, s. 2; 2009-53, s. 1; 2009-111, s. 1; 2009-156, s. 1; 2009-298, s. 1; 2009-323, s. 1; 2011-57, s. 1; 2012-96, s. 1; 2013-248, s. 1; 2014-30, s. 2(a); 2015-80, s. 1; 2015-81, s. 2(a); 2015-172, s. 2; 2016-48, s. 2; 2018-56, s. 1; 2019-58, s. 1; 2019-103, s. 1; 2019-160, s. 1; 2021-17, s. 2; 2021-21, s. 1.)

Local Modification. - Brunswick: 2001-478, s. 1 (as to subdivision (b)(2)); Municipalities located wholly or partly in Guilford: 1987 (Reg. Sess., 1988), c. 1009, s. 6; Union: 2003-321, s. 1; city of Archdale: 2015-81, s. 1 (as to subdivision (b)(4)); city of Asheboro: 1998-203, s. 1; city of Asheville: 2005-139, s. 3 (applicable to petitions for annexation received on or after June 30, 2005); city of Belmont: 2009-111 (as to subdivision (b)(5)); 2017-48, s. 1 (as to subdivision (b)(5)); city of Brevard: 1987, c. 254, s. 2; 2001-105, s. 2 (as to subdivision (b)(5)) city of Durham: 1987, c. 606; 2007-269, s. 1.1 (as to subdivision (b)(2)); city of Greensboro: 1997-344, s. 1; city of Greenville: 1999-283, s. 1; city of Henderson: 1996, 2nd Ex. Sess., c. 3, s. 1; city of Hickory: 1987, c. 179; 1999-208, s. 1; 1999-456, s. 49; city of Kannapolis: 2007-344, ss. 1, 3 (as to subdivision (b), and applicable only to annexations in the area of Cabarrus County bound by the existing city of Kannapolis corporate limits to the east, Mecklenburg County/Cabarrus County line to the west, the Cabarrus County/Rowan County/Iredell County lines to the north, and N.C. Highway 73 to the south); city of King's Mountain: 2003-241, s. 1; city of Kinston: 2017-85, s. 3(b); (as to subsection (c)); city of Mebane: 2017-82, s. 1; city of Mooresville, 1995, c. 82, s. 1; city of Mount Airy: 1999-232, s. 1; 2003-281, s. 1; city of Mount Holly: 1985, c. 110; city of New Bern: 1989, c. 382, s. 1; 1993 (Reg. Sess., 1994), c. 605, s. 3; 2016-41, s. 5; city of Newton: 2002-50, s. 1 (as to subdivision (b)(2)); city of Raleigh: 1998-200, s. 1; city of Reidsville: 1997-343; city of Rockingham: 1995 (Reg. Sess., 1996), c. 654, s. 1; city of Sanford: 2007-43, s. 1; 2019-105, s. 1 (as to subdivision (b)(1)); city of Statesville: 1989 (Reg. Sess., 1990), c. 882, s. 1; city of Winston-Salem: 2004-37, s. 1 (as to subdivision (b)(2)); town of Andrews: 2003-243, s. 1 (as to certain locations); town of Apex: 1993, c. 312, s. 3; 1995, c. 82, s. 1; town of Banner Elk: 1998-77; town of Beaufort: 1995, c. 82, s. 1, 1997-432, s. 1, 2003-204, s. 1; 2019-105, s. 1 (as to subsection (b)); town of Brookford: 1999-208, s. 1; 1999-456, s. 49; town of Butner: 2007-269, s. 1.1 (as precleared under Section 5 of the Voting Rights Act), as amended by 2012-117, s. 1; town of Canton: 1983, c. 301; 1985 (Reg. Sess., 1986), c. 979; 1997-2, s. 1; town of Clayton: 1993, c. 63, s. 1; 1999-10, s. 1; 2007-327, s. 2 (as to subdivision (b)(1)); town of Cornelius: 1999-103, s. 1; town of Davidson: 1999-85, s. 1; town of Eastover: 2007-267, s. 1 (as to subdivision (b)(2), contingent on preclearance under section 5 of the Voting Rights Act); town of Edenton: 1995 (Reg. Sess., 1996), c. 707; town of Franklin: 2015-81, s. 1 (as to subdivision (b)(4)); town of Fuquay-Varina: 1999-304, s. 1; town of Holly Springs: 1991, c. 243 (as to annexation ordinances adopted before July 1, 1993); town of Huntersville: 1999-24, s. 1; town of Kenly; 1987, c. 67; town of Kernersville: 2004-37, s. 1 (as to subdivision (b)(2)): town of Knightdale: 1987, c. 234; town of Madison (subdivision (b)(2) does not apply to Madison): 1997-251, s. 2; town of Maggie Valley: 2005-79 (as to subdivision (b)(4)); and 2008-28 (as to subdivision (b)(1), and applicable to annexations in certain area in Haywood county); town of Mayodan: 2001-405 (as to subdivisions (b)(4) and (b)(5)); town of Mooresville: 1997-219, ss. 2, 3; town of Morehead City: 1998-42; town of Oak Island: 2007-26, s. 2 (as to subdivision (b)(2) and notification requirement to the town of St. James); town of Oak Ridge: 1998-113; town of Pittsboro: 1987 (Reg. Sess., 1988), c. 1023, s. 4.1; town of Pleasant Garden: 1997-344, s. 1; towns of Summerfield and Leland: 1997-249; town of Trent Woods: 1989, c. 382, s. 1; town of Troy: 1993, c. 159, s. 2; town of Wake Forest: 1989 (Reg. Sess., 1990), c. 882, s. 2(a); 1997-432, s. 1(a), (b); town of Wallace: 1995 (Reg. Sess., 1996), c. 692, s. 1; 2012-118, s. 1, as amended by 2013-32, s. 1 (as to subdivision (b)(4)); town of Waxhaw: 2003-273, s. 2(b); town of Weaverville: 1989, c. 181, s. 1 (applicable with respect to annexation ordinances adopted on or before June 30, 1990); 1997-151, s. 2; town of Winterville: 2001-77, s. 1 (as to subdivision (b)(2)); village of Foxfire: 2014-30, s. 1(a) (as to subdivision (b)(4)); village of Marvin: 2002-140, s. 1 (as to subdivision (b)(5)).

Editor's Note. - Session Laws 2001-37, s. 1, amended subsection (b) by deleting subdivision (b)(5), regarding limitations on the area within the proposed satellite corporate limits. Section 2 of the act made this amendment applicable to the Cities of Marion, Oxford, and Rockingham and the Towns of Calabash, Catawba, Dallas, Godwin, Louisburg, Mocksville, Pembroke, Rutherfordton, and Waynesville only. Session Laws 2001-37, ss. 1 and 2, have been codified as subsection (b1) at the direction of the Revisor of Statutes. Session Laws 2001-438, s. 1, also enacted a subsection (b1), which has been recodified as subsection (b2) at the direction of the Revisor of Statutes.

Session Laws 2002-121, s. 1, provides that subdivision (b)(5) does not apply to the cities of Claremont, Concord, Conover, Newton, Sanford, and Southport, and the Towns of Maiden, Midland, Swansboro, and Warsaw. Session Laws 1997-2, s. 1, provided that subdivision (b)(5) did not apply to the town of Catawba, and Session Laws 2001-72, s. 1 provided the subdivision did not apply to the city of Salisbury. Since subdivision (b)(5) does not apply to more than 10 jurisdictions, the second paragraph of that subdivision has been added at the direction of the Revisor of Statutes.

Session Laws 2007-26, s. 2(a), contained a local modification as to G.S. 160A-58.1(b)(2) and (b)(5). The local modification as to subdivision (b)(5) adds to a local modification that affects ten or more localities. It was codified at this section at the direction of the Revisor of Statutes by inserting "Oak Island" in the second paragraph of subdivision (b)(5).

Pursuant to Session Laws 2009-298, s. 1, and at the direction of the Revisor of Statutes, the town of Huntersville has been added to the list of localities in subdivision (b)(5) to which that subdivision is inapplicable.

Session Laws 2013-32, s. 1, amended subsection (b) by deleting subdivision (b)(4), regarding annexation of all of a subdivision. Section 2 deleted the limitation as applicable to the Vidant Family Medical Center. Section 3 of the act made this amendment applicable to the Town of Wallace only.

Effect of Amendments. - Session Laws 2004-57, s. 1, effective July 6, 2004, rewrote the second paragraph of subdivision (b)(5).

Session Laws 2004-99, s. 1, effective July 15, 2004, inserted "Angier" in the second paragraph of subdivision (b)(5).

Session Laws 2004-203, ss. 13(a)-(d), effective August 17, 2004, rewrote subdivision (b)(5) and repealed subdivision (b1).

Session Laws 2005-52, s. 1, effective May 18, 2005, inserted "Taylorsville" in subdivision (b)(5).

Session Laws 2005-71, s. 1, effective June 1, 2005, inserted "Elizabeth City," "Greenville," "Ayden," "Surf City," and "Windsor" in subdivision (b)(5).

Session Laws 2005-79, s. 1, effective June 7, 2005, inserted "Maggie Valley" in subdivision (b)(5).

Session Laws 2005-173, s. 1, effective July 11, 2005, inserted "Kannapolis," "Landis," and "Shallotte, Spencer" in subdivision (b)(5).

Session Laws 2005-433, s. 9, effective September 22, 2005, inserted "Columbia" in subdivision (b)(5).

Session Laws 2006-62, s. 1, effective July 6, 2006, inserted "Princeton" and "Smithfield" in the second paragraph of subdivision (b)(5).

Session Laws 2006-122, s. 1, effective July 18, 2006, inserted "Benson", "Burgaw", "Clayton", "Dobson", and "Yadkinville" in the second paragraph of subdivision (b)(5).

Session Laws 2006-130, s. 1, effective July 19, 2006, inserted "Grimesland", "Stem" and "Stovall" in the second paragraph of subdivision (b)(5).

Session Laws 2007-17, s. 1, effective April 19, 2007, inserted "Four Oaks" in the second paragraph of subdivision (b)(5).

Session Laws 2007-26, s. 1, effective April 26, 2007, inserted "Green Level" in the second paragraph of subdivision (b)(5).

Session Laws 2007-62, s. 1, effective June 6, 2007, inserted "Cramerton" and "Watha" in the second paragraph of subdivision (b)(5).

Session Laws 2007-225, s. 1, effective July 17, 2007, inserted "Durham" in the second paragraph of subdivision (b)(5).

Session Laws 2007-311, s. 1, effective July 28, 2007, inserted "Roanoke Rapids," "Ahoskie," "Columbus," and "Weldon" in the second paragraph of subdivision (b)(5).

Session Laws 2007-342, s. 1, effective August 2, 2007, added "Mount Pleasant" in the second paragraph of subdivision (b)(5).

Session Laws 2008-24, s. 1, effective June 30, 2008, inserted "Middlesex" and "Nashville" in the second paragraph of subdivision (b)(5).

Session Laws 2008-30, s. 1, effective June 30, 2008, inserted "Granite Quarry," "Kenansville," "Lillington," "Nashville" and "Troutman" in the second paragraph of subdivision (b)(5).

Session Laws 2009-40, s. 2, effective May 27, 2009, inserted "Richlands" in the second paragraph of subdivision (b)(5).

Session Laws 2009-53, s. 1, effective June 2, 2009, inserted "Apex" in the second paragraph of subdivision (b)(5).

Session Laws 2009-111, s. 1, effective June 16, 2009, inserted "Belmont" in the second paragraph of subdivision (b)(5).

Session Laws 2009-156, s. 1, effective June 23, 2009, inserted "Bridgeton" in the second paragraph of subdivision (b)(5).

Session Laws 2009-323, s. 1, effective July 22, 2009, inserted "Jamestown" in the second paragraph of subdivision (b)(5).

Session Laws 2011-57, s. 1, effective April 28, 2011, added the last sentence in the beginning paragraph in subsection (a); and added subdivisions (a)(1) through (a)(3).

Session Laws 2012-96, s. 1, effective June 28, 2012, inserted "Ocean Isle Beach" in the second paragraph of subdivision (b)(5).

Session Laws 2013-248, s. 1, effective July 9, 2013, in the second paragraph of subdivision (b)(5), inserted "Hookerton" and "Maysville."

Session Laws 2014-30, s. 2(a), effective June 30, 2014, inserted "Harrisburg" in subdivision (b)(5).

Session Laws 2015-80, s. 1, effective June 15, 2015, inserted "Wilson's Mills" in subdivision (b)(5).

Session Laws 2015-81, s. 2(a), effective June 17, 2015, inserted "Franklin" in subdivision (b)(5).

Session Laws 2015-172, s. 2, effective July 30, 2015, inserted "Hope Mills" and "Spring Lake" in subdivision (b)(5).

Session Laws 2016-48, s. 2, effective June 29, 2016, in subdivision (b)(5), inserted "Siler City."

Session Laws 2018-56, s. 1, effective June 25, 2018, added "Carthage," following "Calabash," and "Pollocksville," following "Pine Level," in subdivision (b)(5).

Session Laws 2019-58, s. 1, effective June 26, 2019, inserted "China Grove" following "Catawba" in subdivision (b)(5).

Session Laws 2019-103, s. 1, effective July 10, 2019, added "Asheboro," "Bunn," "Franklinton," and "Youngsville" to the concluding paragraph in subdivision (b)(5).

Session Laws 2019-160, s. 1, effective July 24, 2019, inserted "Saluda" following "Rockingham" and "West Jefferson" following "Wendell" in subdivision (b)(5).

CASE NOTES

A city has statutory authority to annex areas both contiguous and noncontiguous to its primary corporate limits. It must stand ready to provide sewer service (among other services) to newly annexed areas on substantially the same basis and in the same manner in which these services are provided to the rest of the city. Davidson County v. City of High Point, 321 N.C. 252, 362 S.E.2d 553 (1987).

Use of City-Owned Sewage Treatment Plant Without Prior Approval of County. - Since county had no authority to restrict or regulate city's provision of sewer service to its residents, the city could use the city-owned sewage treatment plant located outside the city but within the county, which was upgraded pursuant to the county's special use permit, with a condition attached to the permit requiring the county's prior approval of service to county citizens to meet its statutory mandate to provide sewer service to residents in newly annexed areas without seeking the county's prior approval, even though the facility was located in the county. Davidson County v. City of High Point, 321 N.C. 252, 362 S.E.2d 553 (1987).

Town Had No Standing to Challenge Annexations. - Plaintiff town had no standing to challenge annexations of contiguous properties by nearby village. Town of Seven Devils v. Village of Sugar Mt., 125 N.C. App. 692, 482 S.E.2d 39, cert. denied, 346 N.C. 185, 486 S.E.2d 219 (1997).

Residents and Property Owners Without Standing to Challenge Voluntary Annexation of Noncontiguous Property. - Residents and property owners in town, who instituted an action in which they sought to enjoin town from placing into effect an ordinance annexing into the corporate limits of the town 89.68 acres of noncontiguous property belonging to intervenor company, residents and property owners did not have standing; no judicial review is provided for annexations of noncontiguous territory, since such annexations are, by statute, the result of voluntary petitions by the property owners. Joyner v. Town of Weaverville, 94 N.C. App. 588, 380 S.E.2d 536 (1989).

Cited in Town of Valdese v. Burke, Inc., 125 N.C. App. 688, 482 S.E.2d 24 (1997).


§ 160A-58.2. Public hearing.

Upon receipt of a petition for annexation under this Part, the city council shall cause the city clerk to investigate the petition, and to certify the results of his investigation. If the clerk certifies that upon investigation the petition appears to be valid, the council shall fix a date for a public hearing on the annexation. Notice of the hearing shall be published once at least 10 days before the date of hearing.

At the hearing, any person residing in or owning property in the area proposed for annexation and any resident of the annexing city may appear and be heard on the questions of the sufficiency of the petition and the desirability of the annexation. If the council then finds and determines that (i) the area described in the petition meets all of the standards set out in G.S. 160A-58.1(b), (ii) the petition bears the signatures of all of the owners of real property within the area proposed for annexation (except those not required to sign by G.S. 160A-58.1(a)), (iii) the petition is otherwise valid, and (iv) the public health, safety and welfare of the inhabitants of the city and of the area proposed for annexation will be best served by the annexation, the council may adopt an ordinance annexing the area described in the petition. The ordinance may be made effective immediately or on any specified date within six months from the date of passage.

History

(1973, c. 1173, s. 2.)

Local Modification. - City of Durham: 1993, c. 342, s. 1; 2013-386, s. 3; city of Reidsville: 1997-343; town of Pittsboro: 1987 (Reg. Sess., 1988), c. 1023, s. 4.1.

CASE NOTES

Cited in Taylor v. City of Raleigh, 290 N.C. 608, 227 S.E.2d 576 (1976); Hawks v. Town of Valdese, 299 N.C. 1, 261 S.E.2d 90 (1980); Joyner v. Town of Weaverville, 94 N.C. App. 588, 380 S.E.2d 536 (1989).


§ 160A-58.2A. Assumption of debt.

  1. If the city has annexed under this Part any area which is served by a rural fire department and which is in:
    1. An insurance district defined under G.S. 153A-233;
    2. A rural fire protection district under Article 3A of Chapter 69 of the General Statutes; or
    3. A fire service district under Article 16 of Chapter 153A of the General Statutes,
  2. The annual payments from the city to the rural fire department on such shared debt service shall be calculated as follows:
    1. The rural fire department shall certify to the city each year the amount that will be expended for debt service subject to be shared by the city as provided by subsection (a) of this section; and
    2. The amount determined under subdivision (1) of this subsection shall be multiplied by the percentage determined by dividing the assessed valuation of the area of the district annexed by the assessed valuation of the entire district, each such valuation to be fixed as of the date the annexation ordinance becomes effective.
  3. This section does not apply in any year as to any annexed area(s) for which the payment calculated under this section as to all annexation ordinances adopted under this Part by a city during a particular calendar year does not exceed one hundred dollars ($100.00).
  4. The city and rural fire department shall jointly present a payment schedule to the Local Government Commission for approval and no payment may be made until such schedule is approved. The Local Government Commission shall approve a payment schedule agreed upon between the city and the rural fire department in cases where the assessed valuation of the district may not readily be determined, if there is a reasonable basis for the agreement.

then beginning with the effective date of annexation the city shall pay annually a proportionate share of any payments due on any debt (including principal and interest) relating to facilities or equipment of the rural fire department, if the debt was existing at the time of submission of the petition for annexation to the city under this Part. The rural fire department shall make available to the city not later than 30 days following a written request from the city, information concerning such debt. The rural fire department forfeits its rights under this section if it fails to make a good faith response within 45 days following receipt of the written request for information from the city, provided that the city's written request so states by specific reference to this section.

History

(1989, c. 598, s. 3.)

§ 160A-58.3. Annexed area subject to city taxes and debts.

From and after the effective date of the annexation ordinance, the annexed area and its citizens and property are subject to all debts, laws, ordinances and regulations of the annexing city, and are entitled to the same privileges and benefits as other parts of the city. Real and personal property in the newly annexed territory on the January 1 immediately preceding the beginning of the fiscal year in which the annexation becomes effective is subject to municipal taxes as provided in G.S. 160A-58.10. If the effective date of annexation falls between June 1 and June 30, and the privilege licenses of the annexing city are due on June 1, then businesses in the annexed area are liable for privilege license taxes at the full-year rate.

History

(1973, c. 1173, s. 2; 1975, c. 576, s. 5; 1977, c. 517, s. 7.)

§ 160A-58.4. Extraterritorial powers.

Satellite corporate limits shall not be considered a part of the city's corporate limits for the purposes of extraterritorial land-use regulation pursuant to G.S. 160A-360, or abatement of public health nuisances pursuant to G.S. 160A-193. However, a city's power to regulate land use pursuant to Chapter 160A, Article 19, or to abate public health nuisances pursuant to G.S. 160A-193, shall be the same within satellite corporate limits as within its primary corporate limits.

History

(1973, c. 1173, s. 2.)

Local Modification. - Town of Canton: 1983, c. 301; town of Mooresville: 1991, c. 289, s. 1; 1997-219, s. 4.

§ 160A-58.5. Special rates for water, sewer and other enterprises.

For the purposes of G.S. 160A-314, provision of public enterprise services within satellite corporate limits shall be considered provision of service for special classes of service distinct from the classes of service provided within the primary corporate limits of the city, and the city may fix and enforce schedules of rents, rates, fees, charges and penalties in excess of those fixed and enforced within the primary corporate limits. A city providing enterprise services within satellite corporate limits shall annually review the cost thereof, and shall take such steps as may be necessary to insure that the current operating costs of such services, excluding debt service on bonds issued to finance services within satellite corporate limits, does not exceed revenues realized therefrom.

History

(1973, c. 1173, s. 2.)

Cross References. - As to satellite annexation in conjunction with municipal annexation in certain sanitary districts, see G.S. 130A-70.1.


§ 160A-58.6. Transition from satellite to primary corporate limits.

An area annexed pursuant to this Part ceases to constitute satellite corporate limits and becomes a part of the primary corporate limits of a city when, through annexation of intervening territory, the two boundaries touch.

History

(1973, c. 1173, s. 2.)

CASE NOTES

If a town wishes to annex involuntarily two unannexed areas on either side of the satellite area, it must first annex the area which abuts directly on both the primary corporate limits and the satellite corporate limits. Only after this intervening territory has been successfully annexed is the area which presently abuts solely on satellite corporate limits eligible for annexation. Only then do the satellite corporate limits become part of the primary corporate limits in accord with this section. Hawks v. Town of Valdese, 299 N.C. 1, 261 S.E.2d 90 (1980).

Definition of Satellite. - A corporate limit is defined as a satellite only when there is no connection whatsoever between the municipality and the satellite. Williams v. Town of Kernersville, 129 N.C. App. 734, 500 S.E.2d 770, cert. denied, 349 N.C. 241, 516 S.E.2d 611 (1998).


§ 160A-58.7. Annexation of municipal property.

  1. The city council may initiate annexation of property not contiguous to the primary corporate limits and owned by the city by adopting a resolution stating its intent to annex the property, in lieu of filing a petition. The property must satisfy the requirements of G.S. 160A-58.1. The resolution shall contain an adequate description of the property and fix a date for a public hearing on the question of annexation. Notice of the public hearing shall be published once at least 10 days before the date of the hearing. At the hearing, any resident of the city may appear and be heard on the question of the desirability of the annexation. If the council finds that annexation is in the public interest, it may adopt an ordinance annexing the property. The ordinance may be made effective immediately or on any specified date within six months from the date of passage.
  2. A city has no authority to adopt a resolution or petition itself under this Part for annexation of property it does not own or have any legal interest in. For the purpose of this subsection, a city has no legal interest in a State-maintained street unless it owns the underlying fee and not just an easement.

History

(1987, c. 562, s. 2; 2011-57, s. 2.)

Local Modification. - City of Durham: 1993, c. 342, s. 1; 2013-386, s. 3; 2015-82, s. 1 (as to subsection (b)); city of Reidsville: 1997-343.

Effect of Amendments. - Session Laws 2011-57, s. 2, effective April 28, 2011, added the subsection (a) designation; and added subsection (b).

§ 160A-58.8. Recording and reporting.

Annexations made under this part shall be recorded and reported in the same manner as under G.S. 160A-29.

History

(1987, c. 879, s. 4.)

PART 4A. EFFECTIVE DATES OF CERTAIN ANNEXATION ORDINANCES.

§ 160A-58.9. Effective date of certain annexation ordinances adopted from January 1, 1987, to August 3, 1987.

  1. In the case of any annexation ordinance adopted during the period beginning January 1, 1987, and ending on August 3, 1987, if the effective date of the annexation under the ordinance is during 1988, the governing board of the municipality may, notwithstanding G.S. 160A-37(j) or G.S. 160A-49(j), amend the ordinance to provide for an effective date of December 31, 1987. The board must give notice by publication of its intent to consider adoption of such ordinance, such notice to be published at least 10 days before the meeting at which the ordinance is adopted. Copies of the adopted ordinance shall be recorded in accordance with the provisions of G.S. 160A-39 or G.S. 160A-58.61, as applicable.
  2. This section applies only to territory located in counties with a population of 55,000 or over, according to the 1980 decennial federal census.

History

(1987, c. 715, s. 2.)

Editor's Note. - The reference to "G.S. 160A-58.61" was substituted for "G.S. 160A-51" at the direction of the Revisor of Statutes to conform to recodification of that section by Session Laws 2011-396, s. 5.

G.S. 160A-37, 160A-39, and 160A-49, referred to in subsection (a), were repealed by Session Laws 2011-396, ss. 1 and 7, effective July 1, 2011.

§ 160A-58.9A. Effective date of certain annexation ordinances adopted under Article 4A of Chapter 160A.

  1. No annexation ordinance adopted under Article 4A of Chapter 160A of the General Statutes may become effective during the period beginning November 1, 1989, and ending January 1, 1990. If because of the operation of G.S. 160A-37.1(h), G.S. 160A-37.3(g), G.S. 160A-38, G.S. 160A-58.57(h), G.S. 160A-58.59(g), G.S. 160A-50, the order of any court, or the operation of Section 5 of the Voting Rights Act of 1965, an annexation ordinance is to become effective during the period beginning November 1, 1989, and ending January 1, 1990, it shall instead become effective on a date during the period beginning January 2, 1990, and ending December 31, 1990, set by ordinance of the governing board of the city.
  2. If the final date upon which an annexation ordinance adopted under Article 4A of Chapter 160A of the General Statutes, may be made effective occurs during the period beginning November 1, 1989, and ending January 1, 1990, the effective date of the annexation may be set in the annexation ordinance as any date during the period beginning January 2, 1990, and ending December 31, 1990, in addition to any date permitted by law before November 1, 1989.
  3. This section applies to territory located in counties with a population of 55,000 or over, according to the 1980 decennial federal census, and to territory located in all other counties subject to Part 2 of Article 12A of Chapter 163 of the General Statutes, pursuant to G.S. 163-132.6.

History

(1987, c. 715, s. 3; 1989, c. 440, s. 6; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.)

Re-recodification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled `Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification, in consultation with the State Ethics Commission, the State Board of Elections, the Secretary of State, and the new Bipartisan State Board of Elections and Ethics Enforcement. Pursuant to this authority, the Revisor of Statutes substituted "Part 2 of Article 20 of Chapter 163A" for "Article 12A of Chapter 163" in subsection (c).

Session Laws 2018-146, ss. 3.1(a), (b) and 6.1 repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the changes to references in subsection (c).

Editor's Note. - Former G.S. 163-132.6, referred to in subsection (c), was repealed by Session Laws 1991 (Regular Session, 1992), c. 927, s. 1.

References to "G.S. 160A-58.57(h), G.S. 160A-58.59(g)," were substituted for "G.S. 160A-49.1(h), G.S. 160A-49.3(g)," at the direction of the Revisor of Statutes to conform to recodification of those sections by Session Laws 2011-396, ss. 2 and 4.

G.S. 160A-37.1 and 160A-37.3, referred to in subsection (a), were repealed by Session Laws 2011-396, s. 1, effective July 1, 2011. Former G.S. 160A-33 through 160A-42 pertained to annexation by cities having a population of less than 5,000 persons. For current provisions, see G.S. 160A-58.50 et seq.


PART 5. PROPERTY TAX LIABILITY OF NEWLY ANNEXED TERRITORY.

§ 160A-58.10. Tax of newly annexed territory.

  1. Applicability of Section. - Real and personal property in territory annexed pursuant to this Article is subject to municipal taxes as provided in this section.
  2. Prorated Taxes. - Real and personal property in the newly annexed territory on the January 1 immediately preceding the beginning of the fiscal year in which the annexation becomes effective is subject to prorated municipal taxes levied for that fiscal year as provided in this subsection. The amount of municipal taxes that would have been due on the property had it been within the municipality for the full fiscal year shall be multiplied by the following fraction: the denominator shall be 12 and the numerator shall be the number of full calendar months remaining in the fiscal year, following the day on which the annexation becomes effective. The product of the multiplication is the amount of prorated taxes due. The lien for prorated taxes levied on a parcel of real property shall attach to the parcel taxed on the listing date, as provided in G.S. 105-285, immediately preceding the fiscal year in which the annexation becomes effective. The lien for prorated taxes levied on personal property shall attach on the same date to all real property of the taxpayer in the taxing unit, including the newly annexed territory. If the annexation becomes effective after June 30 and before September 2, the prorated taxes shall be due and payable on the first day of September of the fiscal year for which the taxes are levied. If the annexation becomes effective after September 1 and before the following July 1, the prorated taxes shall be due and payable on the first day of September of the next succeeding fiscal year. The prorated taxes are subject to collection and foreclosure in the same manner as other taxes levied for the fiscal year in which the prorated taxes become due.
  3. Taxes in Subsequent Fiscal Years. - In fiscal years subsequent to the fiscal year in which an annexation becomes effective, real and personal property in the newly annexed territory is subject to municipal taxes on the same basis as is the preexisting territory of the municipality.
  4. Transfer of Tax Records. - For purposes of levying prorated taxes the municipality shall obtain from the county a record of property in the area being annexed that was listed for taxation on the January 1 immediately preceding the fiscal year for which the prorated taxes are levied. In addition, if the effective date of annexation falls between January 1 and June 30, the municipality shall, for purposes of levying taxes for the fiscal year beginning July 1 following the date of annexation, obtain from the county a record of property in the area being annexed that was listed for taxation as of said January 1.

History

(1977, c. 517, s. 9.)

Cross References. - As to effective date of annexation ordinances adopted under Article 4A of Chapter 160A, see G.S. 160A-58.9A.

Editor's Note. - Session Laws 2006-72, s. 1, provides: "A taxing unit's governing body may by resolution provide that, notwithstanding the provisions of G.S. 105-360 regarding the due date and accrual of interest, G.S. 105-380 and G.S. 105-381 regarding the release, refund, and compromise of taxes, and G.S. 160A-58.10 regarding the taxation of newly annexed property, property taxes for the partial fiscal year October 1, 2005, through June 30, 2006, shall be collected over a three-year period with one-third due and payable on September 1, 2006, one-third due and payable on September 1, 2007, and the remaining one-third due and payable on September 1, 2008. The resolution may provide that interest accrues on unpaid property taxes only to the extent that the property taxes have become due and payable under the payment schedule set out in the resolution. To the extent property taxes are due and payable pursuant to a resolution adopted under this act, interest accruing on taxes that remain unpaid shall be computed according to the schedule stated in G.S. 105-360. A resolution adopted pursuant to this act applies only to taxes for the partial fiscal year October 1, 2005, through June 30, 2006, on property located in an area that was annexed between January 1, 2003, and January 1, 2006, and for which effective date of the annexation was set by judicial order."

Session Laws 2006-72, s. 2, provides: "If a resolution adopted by a taxing unit's governing body pursuant to this act delays the due date, accrual of interest, or both for any property taxes, the tax collector's obligations under G.S. 160A-58.10 and G.S. 105-360 with respect to those taxes are delayed to the same extent."

Legal Periodicals. - For 1984 survey, "Competitive Annexation Among Municipalities: North Carolina Adopts the Prior Jurisdiction Rule," see 63 N.C.L. Rev. 1260 (1985).

§§ 160A-58.11 through 160A-58.20: Reserved for future codification purposes.

PART 6. ANNEXATION AGREEMENTS.

§ 160A-58.21. Purpose.

It is the purpose of this Part to authorize cities to enter into binding agreements concerning future annexation in order to enhance orderly planning by such cities as well as residents and property owners in areas adjacent to such cities.

History

(1989, c. 143, s. 1.)

CASE NOTES

Cited in Cunningham v. City of Greensboro, 212 N.C. App. 86, 711 S.E.2d 477 (2011).


§ 160A-58.22. Definitions.

The words defined in this section shall have the meanings indicated when used in this Part:

  1. "Agreement" means any written agreement authorized by this Part.
  2. "Annexation" means any extension of a city's corporate limits as authorized by this Article, the charter of the city, or any local act applicable to the city, as such statutory authority exists now or is hereafter amended.
  3. "Participating city" means any city which is a party to an agreement.

History

(1989, c. 143, s. 1.)

§ 160A-58.23. Annexation agreements authorized.

Two or more cities may enter into agreements in order to designate one or more areas which are not subject to annexation by one or more of the participating cities. The agreements shall be of reasonable duration, not to exceed 20 years, and shall be approved by ordinance of the governing board and executed by the mayor of each city and spread upon its minutes.

History

(1989, c. 143, s. 1.)

CASE NOTES

Cited in Cunningham v. City of Greensboro, 212 N.C. App. 86, 711 S.E.2d 477 (2011).


§ 160A-58.24. Contents of agreements; procedure.

  1. The agreement shall:
    1. State the duration of the agreement.
    2. Describe clearly the area or areas subject to the agreement. The boundaries of such area or areas may be established at such locations as the participating cities shall agree. Thereafter, any participating city may follow such boundaries in annexing any property, whether or not such boundaries follow roads or natural topographical features.
    3. Specify one or more participating cities which may not annex the area or areas described in the agreement.
    4. State the effective date of the agreement.
    5. Require each participating city which proposes any annexation to give written notice to the other participating city or cities of the annexation at least 60 days before the adoption of any annexation ordinance; provided, however, that the agreement may provide for a waiver of this time period by the notified city.
    6. Include any other necessary or proper matter.
  2. The written notice required by subdivision (a)(5) of this section shall describe the area to be annexed by a legible map, clearly and accurately showing the boundaries of the area to be annexed in relation to: the area or areas described pursuant to subdivision (a)(2) of this section, roads, streams and any other prominent geographical features. Such notice shall not be effective for more than 180 days.
  3. No agreement may be entered into under this Part unless each participating city has held a public hearing on the agreement prior to adopting the ordinance approving the agreement. The governing boards of the participating cities may hold a joint public hearing if desired. Notice of the public hearing or hearings shall be given as provided in G.S. 160A-31(c).
  4. Any agreement entered into under this Part may be modified or terminated by a subsequent agreement entered into by all the participating cities to that agreement. The subsequent agreement shall be approved by ordinance after a public hearing or hearings as provided in subsection (c).
  5. No agreement entered into under this Part shall be binding beyond three miles of the primary corporate limits of a participating city which is permitted to annex the area under the agreement, unless approved by the board of county commissioners with jurisdiction over the area. Provided however, that an area where the agreement is not binding because of failure of the board of county commissioners to approve it, shall become subject to the agreement if subsequent annexation brings it within three miles. The approval of a board of county commissioners shall be evidenced by a resolution adopted after a public hearing as provided in subsection (c).
  6. A participating city may terminate an annexation agreement unilaterally or withdraw itself from the agreement, by repealing the ordinance by which it approved the agreement and providing five years' written notice to the other participating cities. Upon the expiration of the five-year period, an agreement originally involving only two cities shall terminate, and an agreement originally involving more than two cities shall terminate unless each of the other participating cities shall have adopted an ordinance reaffirming the agreement.

History

(1989, c. 143, s. 1.)

Local Modification. - Town of Carthage: 1999-239, s. 11.

CASE NOTES

Cited in Cunningham v. City of Greensboro, 212 N.C. App. 86, 711 S.E.2d 477 (2011).


§ 160A-58.25. Effect of agreement.

From and after the effective date of an agreement, no participating city may adopt an annexation ordinance as to all or any portion of an area in violation of the agreement.

History

(1989, c. 143, s. 1.)

§ 160A-58.26. Part grants no annexation authority.

Nothing in this Part shall be construed to authorize the annexation of any area which is not otherwise subject to annexation under applicable law.

History

(1989, c. 143, s. 1.)

§ 160A-58.27. Relief.

  1. Each provision of an agreement shall be binding upon the respective parties. Not later than 30 days following the passage of an annexation ordinance concerning territory subject to an agreement, a participating city which believes that another participating city has violated this Part or the agreement may file a petition in the superior court of the county where any of the territory proposed to be annexed is located, seeking review of the action of the city alleged to have violated this Part or the agreement.
  2. Within five days after the petition is filed with the court, the petitioning city shall serve copies of the petition by certified mail, return receipt requested, upon the respondent city.
  3. Within 15 days after receipt of the copy of the petition for review, or within such additional time as the court may allow, the respondent city shall transmit to the reviewing court:
    1. A transcript of the portions of the ordinance or minute book in which the procedure for annexation has been set forth;
    2. A copy of resolutions, ordinances, and any other document received or approved by the respondent city's governing board as part of the annexation proceeding.
  4. The court shall fix the date for review of the petition so that review shall be expeditious and without unnecessary delays. The review shall be conducted by the court without a jury. The court may hear oral arguments and receive written briefs, and may take evidence intended to show either:
    1. That the provisions of this Part were not met; or
    2. That the provisions of the agreement were not met.
  5. At any time before or during the review proceeding, any petitioner may apply to the reviewing court for an order staying the operation of the annexation ordinance pending the outcome of the review. The court may grant or deny the stay in its discretion upon such terms as it deems proper, and it may permit annexation of any part of the area described in the ordinance concerning which no question for review has been raised.
  6. Upon a finding that the respondent city has not violated this Part or the agreement, the court may affirm the action of the respondent city without change. Upon a finding that the respondent city has violated this Part or the agreement, the court may:
    1. Remand to the respondent city's governing board any ordinance adopted pursuant to Parts 2 or 3 of this Article, as the same exists now or is hereafter amended, for amendment of the boundaries, or for such other action as is necessary, to conform to the provisions of this Part and the agreement.
    2. Declare any annexation begun pursuant to any other applicable law to be void. If the respondent city shall fail to take action in accordance with the court's instructions upon remand under subdivision (d)(1) of this section within three months from receipt of such instructions, the annexation proceeding shall be void.
  7. Any participating city which is a party to the review proceedings may appeal from the final judgment of the superior court under rules of procedure applicable in other civil cases. The appealing party may apply to superior court for a stay in its final determination, or a stay of the annexation ordinance, whichever shall be appropriate, pending the outcome of the appeal to the appellate division; provided, that the superior court may, with the agreement of the parties, permit annexation to be effective with respect to any part of the area concerning which no appeal is being made and which can be incorporated into the respondent city without regard to any part of the area concerning which an appeal is being made.
  8. If part or all of the area annexed under the terms of a challenged annexation ordinance is the subject of an appeal to the superior court or appellate division on the effective date of the ordinance, then the ordinance shall be deemed amended to make the effective date with respect to such area the date of the final judgment of the superior court or appellate division, whichever is appropriate, or the date the respondent city's governing board completes action to make the ordinance conform to the court's instructions in the event of remand.
  9. A participating city which is prohibited from annexing into an area under a binding agreement may file a petition in the superior court where any of the territory proposed to be annexed is located, or a response in a proceeding initiated by another participating city, seeking permission to annex territory in the area notwithstanding the agreement. If the territory qualifies for annexation by the city seeking to annex it, the court may enter an order allowing the annexation to proceed with respect to all or a portion of the territory upon a finding that there is an imminent threat to public health or safety that can be remedied only by the city seeking annexation. The procedural provisions of this section shall apply to proceedings under this subsection, so far as applicable.

History

(1989, c. 143, s. 1.)

Local Modification. - Town of Carthage: 1999-239, s. 11.

§ 160A-58.28. Effect on prior local acts.

This Part does not affect Chapter 953, Session Laws of 1983, Chapter 847, Session Laws of 1985 (1986 Regular Session), or Chapters 204, 233, or 1009, Session Laws of 1987, authorizing annexation agreements, but any city which is authorized to enter into agreements by one of those acts may enter into future agreements either under such act or this Part.

History

(1989, c. 143, s. 1; 1991 (Reg. Sess., 1992), c. 1030, s. 48.)

§§ 160A-58.29 through 160A-58.49: Reserved for future codification purposes.

PART 7. ANNEXATIONS INITIATED BY MUNICIPALITIES.

§ 160A-58.50. Declaration of policy.

It is hereby declared as a matter of State policy:

  1. That sound urban development is essential to the continued economic development of North Carolina.
  2. That municipalities are created to provide the governmental services essential for sound urban development and for the protection of health, safety, and welfare in areas being intensively used for residential, commercial, industrial, institutional, and governmental purposes or in areas undergoing such development.
  3. That municipal boundaries should be extended in accordance with legislative standards applicable throughout the State to include such areas and to provide the high quality of governmental services needed therein for the public health, safety, and welfare.
  4. That areas annexed to municipalities in accordance with such uniform legislative standards should receive the services provided by the annexing municipality.
  5. That the provision of services to protect the health, safety, and welfare is a public purpose.
  6. That it is essential for citizens to have an effective voice in annexations initiated by municipalities.

History

(2011-396, s. 9.)

Twelve-year Prohibition on Involuntary Annexation. - Session Laws 2012-3, s. 3, effective July 1, 2012, provides: "Twelve-year prohibition on involuntary annexation. - All areas affected by the annexation ordinances described in Section 4 of this act shall not be subject to any annexation proceeding, other than a voluntary annexation under Part 1 or Part 4 of Article 4A of Chapter 160A of the General Statutes, or local act of the General Assembly, for a period of 12 years from and after the effective date of this act. After the 12-year period, the area may be subject to annexation in accordance with State law effective at that time."

Session Laws 2012-3, s. 4, provides: "Repealed involuntary annexation ordinances.

"(1) Kinston annexation ordinance, as described in House Bill 5, First Edition, 2011 Regular Session.

"(2) Lexington annexation ordinance, as described in House Bill 37, First Edition, 2011 Regular Session.

"(3) Rocky Mount annexation ordinance, as described in House Bill 56, First Edition, 2011 Regular Session.

"(4) Wilmington annexation ordinance, described in House Bill 180, First Edition, 2011 Regular Session.

"(5) Asheville/Biltmore Lake annexation ordinance, as described in House Bill 236, First Edition, 2011 Regular Session.

"(6) Marvin annexation ordinance, affecting the area described in RS 2008-02-02, a resolution of the Village of Marvin Council.

"(7) Southport annexation ordinance, affecting 'Area A' and 'Area B,' as described in City of Southport annexation ordinance, adopted June 9, 2011.

"(8) Goldsboro annexation ordinance, affecting the area described in Senate Bill 314, First Edition, 2011 Regular Session.

"(9) Fayetteville Gates Four annexation ordinance, as described in House Bill 231, First Edition, 2011 Regular Session."

Session Laws 2012-3, s. 6, is a severability clause.

Session Laws 2012-103, s. 2, effective June 29, 2012, provides: "Twelve-year prohibition on involuntary annexation. - All areas affected by the annexation ordinances described in Section 3 of this act shall not be subject to any annexation proceeding, other than a voluntary annexation under Part 1 or Part 4 of Article 4A of Chapter 160A of the General Statutes, or local act of the General Assembly, for a period of 12 years from and after the effective date of this act. After the 12-year period, the area may be subject to annexation in accordance with State law effective at that time."

Session Laws 2012-103, s. 3, provides: "Repealed involuntary annexation ordinances. -

"(1) Elizabethtown Annexation Ordinance 2011-04 (Area A) adopted June 6, 2011.

"(2) Elizabethtown Annexation Ordinance 2011-05 (Area B) adopted June 6, 2011.

"(3) Elizabethtown Annexation Ordinance 2011-06 (Area C) adopted June 6, 2011.

"(4) Elizabethtown Annexation Ordinance 2011-07 (Area D) adopted June 6, 2011."

Session Laws 2012-103, s. 4, is a severability clause.

Session Laws 2012-104, s. 2, effective June 29, 2012, provides: "Twelve-year prohibition on involuntary annexation. - All areas affected by the annexation ordinances described in Section 3 of this act shall not be subject to any annexation proceeding, other than a voluntary annexation under Part 1 or Part 4 of Article 4A of Chapter 160A of the General Statutes, or local act of the General Assembly, for a period of 12 years from and after the effective date of this act. After the 12-year period, the area may be subject to annexation in accordance with State law effective at that time."

Session Laws 2012-104, s. 3, provides: "Repealed involuntary annexation ordinances. -

"(1) Elizabethtown Annexation Ordinance 2011-09 (Area J) adopted June 6, 2011.

"(2) Elizabethtown Annexation Ordinance 2011-10 (Area N) adopted June 6, 2011.

"(3) Elizabethtown Annexation Ordinance 2011-07 (Area Q) adopted June 6, 2011."

Session Laws 2012-104, s. 4, is a severability clause.

Editor's Note. - Session Laws 2011-396 repealed former Parts 2 and 3 of Article 4A and enacted in their place new Parts 7 and 8.

Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

Legal Periodicals. - For survey of 1980 administrative law, see 59 N.C.L. Rev. 1026 (1981).

For survey of 1980 constitutional law, see 59 N.C.L. Rev. 1093 (1981).

For survey of 1981 administrative law, see 60 N.C.L. Rev. 1165 (1982).

For 1984 survey, "Competitive Annexation Among Municipalities: North Carolina Adopts the Prior Jurisdiction Rule," see 63 N.C.L. Rev. 1260 (1985).

For survey, "Municipal Annexation in North Carolina: A Look at the Past Decade," see 14 Campbell L. Rev. 135 (1992).

For comment, "'Caught Between a Rock and a Hard Place': Fringe Landowners 'Can't Get No Satisfaction.' Is It Time to Re-Think Annexation Policy in North Carolina?," see 24 Campbell L. Rev. 317 (2002).

For note, "Consent Not Required: Municipal Annexation in North Carolina," see 83 N.C. L. Rev. 1634 (2005).

For article, "Bargain Basement Annexation: How Municipalities Subvert the Intent of North Carolina Annexation Laws," see 29 N.C. Cent. L.J. 77 (2006).

CASE NOTES

This Part does not constitute an unconstitutional delegation of legislative power in violation of N.C. Const., Art. VIII. Williams v. Town of Grifton, 19 N.C. App. 462, 199 S.E.2d 288 (1973).

The legislature may, without violating the state or federal Constitutions, delegate to a municipality the authority to implement a plan of annexation. Williams v. Town of Grifton, 19 N.C. App. 462, 199 S.E.2d 288 (1973).

The guidelines established by this Part are as stringent as those in G.S. 160A-45 et seq., and the discretion conferred upon the municipalities of population less than 5,000 is no greater than that conferred upon municipalities of population of 5,000 or greater. Therefore, the contention that the annexation statute is unconstitutional is untenable. Williams v. Town of Grifton, 19 N.C. App. 462, 199 S.E.2d 288 (1973).

Rational Basis for Statutory Scheme. - Given the State policy, it is not difficult to conceive of a rational basis supportive of the patchwork statutory scheme governing annexation in North Carolina. Thompson v. Whitley, 344 F. Supp. 480 (E.D.N.C. 1972).

Application to Property of Condominium Owners. - Condominium unit owners need municipal services like water, sewage disposal, and police and fire protection just as do homeowners in any new development. It would lead to anomalous results and violate legislative intent to construe the statute as applying to the property of homeowners but not to the property of condominium unit owners. Tar Landing Villas Owners' Ass'n v. Town of Atlantic Beach, 64 N.C. App. 239, 307 S.E.2d 181 (1983), cert. denied, 310 N.C. 156, 311 S.E.2d 296 (1984).

Annexation of territory by a municipality is a legislative and not a judicial act; hence, in the absence of statutory directive, the court, on appeal from an annexation ordinance, cannot divide the territory, annex a part thereof and refuse to annex the remainder. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

Proceeding Is Summary. - A proceeding by a municipality to annex territory pursuant to this Part is summary in nature. Southern Ry. v. Hook, 261 N.C. 517, 135 S.E.2d 562 (1964).

Material statutory requirements must be complied with. Southern Ry. v. Hook, 261 N.C. 517, 135 S.E.2d 562 (1964).

Summary Judgment Inappropriate for Fact Questions. - The trial court erred in granting summary judgment as to whether defendant-town had fulfilled its duty to maintain a street it annexed where the record was undeveloped as to the current state of repair of the street and the customary maintenance provided by defendant on similar streets. Buckland v. Town of Haw River, 141 N.C. App. 460, 541 S.E.2d 497 (2000).

Burden of Showing Noncompliance. - In an annexation proceeding under this Part, the record of the proceedings must show prima facie complete and substantial compliance with the applicable provisions of the statutes; the burden is upon petitioners requesting review of annexation proceedings to show, by competent evidence, failure on the part of the municipality to comply with the statutory requirements as a matter of fact, or irregularity in the proceedings which materially prejudiced the substantive rights of petitioners. Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979).

Voluntary Procedure Is Simpler and Quicker Than Involuntary Procedure. - The voluntary procedure initiated by landowners and future municipal taxpayers has understandably been made simpler and quicker than involuntary annexation procedures. Town of Hudson v. City of Lenoir, 279 N.C. 156, 181 S.E.2d 443 (1971).

Injection of Element of Choice. - The variations in procedural requirements with respect to voluntary and involuntary annexation make it possible for property owners in the affected area to inject an element of choice as to which municipality will govern them. Town of Hudson v. City of Lenoir, 279 N.C. 156, 181 S.E.2d 443 (1971).

Contiguity is an essential component of the traditional concept of a municipal corporation, which is envisioned as a governmental unit capable of providing essential governmental services to residents within compact borders on a scale adequate to insure "the protection of health, safety, and welfare in areas being intensively used for residential, commercial, industrial, and government purposes or in areas undergoing such development." Imposition of the contiguity requirement is one means of ensuring that the annexation process remains consistent with principles of sound urban development. Hawks v. Town of Valdese, 299 N.C. 1, 261 S.E.2d 90 (1980).

Section 160A-37 provides two different procedural methods for beginning the involuntary annexation process under G.S. 160A-33 to 160A-42, and former G.S. 160A-43 and 160A-44. A municipality may either pass a resolution of consideration one year prior to adopting its resolution of intent, or it may immediately adopt the resolution of intent and postpone the effective date of annexation for at least a year after the ordinance is passed. Town of Hazelwood v. Town of Waynesville, 83 N.C. App. 670, 351 S.E.2d 558, rev'd on other grounds, 320 N.C. 89, 357 S.E.2d 686 (1987).

Prior Jurisdiction Doctrine. - Adherence to the prior jurisdiction doctrine is not only consistent with the majority rule, but is in keeping with the spirit and intent of the annexation statutes. City of Burlington v. Town of Elon College, 310 N.C. 723, 314 S.E.2d 534 (1984).

Where one municipality institutes valid annexation proceedings first, that municipality should be given priority under the prior jurisdiction rule, and subsequent annexation proceedings, of whatever nature, are of no force and effect. City of Burlington v. Town of Elon College, 310 N.C. 723, 314 S.E.2d 534 (1984).

Preference of Landowners Is of No Consequence. - For purposes of the prior jurisdiction rule, annexation proceedings, regardless of their nature, are "equivalent proceedings," and it is of no consequence which town or city the landowners prefer. In fact, it appears to be the very essence of the involuntary annexation procedures that the affected landowners have no choice, as long as the annexing body complies with the applicable statutes. City of Burlington v. Town of Elon College, 310 N.C. 723, 314 S.E.2d 534 (1984).

Objectives Held Sufficient to Justify Annexation. - Three avowed objectives stated by a town's governing board, namely, (1) essentially all of the town's desirable building sites were exhausted, (2) the tax base was unable to provide the kind of services people needed, and (3) many interested people were unable to participate in town government were sufficient to qualify annexation under this Part. Williams v. Town of Grifton, 19 N.C. App. 462, 199 S.E.2d 288 (1973).

Annexation Proper. - Trial court properly found that a village provided independent administrative, engineering, auditing, legal, and planning services to its residents, and that the village was exploring options for obtaining additional police patrol services, and had committed itself to providing its current and future levels of such services to its residents in a non-discriminatory manner; the trial court found that the village was going to provide some additional services to the area to be annexed, notwithstanding land owners' claim they would receive no additional services whatsoever, and the trial court's order affirming the annexation was proper. Nolan v. Village of Marvin, 172 N.C. App. 84, 615 S.E.2d 898 (2005).

Village essentially complied with the requirements of G.S. 160A-33 because the village's annexation of property was consistent with the public policy of sound urban development articulated in G.S. 160A-33. Norwood v. Village of Sugar Mt., 193 N.C. App. 293, 667 S.E.2d 524 (2008), review denied, review dismissed, as moot, 363 N.C. 582, 682 S.E.2d 386 (2009).

Annexation Ordinance Unenforceable. - Appellate court's decision that upheld the trial court's judgment upholding the annexation ordinance was reversed, as the village's annexation ordinance did not provide for meaningful extension of municipal services to the lots subject to annexation, which meant that the village had not substantially complied with the statutory procedures for annexation and that the property owners would suffer material injury, in the form of municipal taxes, if annexation proceeded. Nolan v. Village of Marvin, 360 N.C. 256, 624 S.E.2d 305 (2006).

Municipality Need Not Acquire Private Water and Sewer Systems. - An annexation ordinance may not be attacked on the ground that the municipality has no plans to purchase or finance the purchase of private water and sewer systems existing in the annexed territory, since the mere existence of such private systems within the territory to be annexed does not compel the city to purchase or acquire ownership of them. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

Nor Does Mere Extension of Limits or Voluntary Maintenance Appropriate Such Systems. - Where a municipality annexes territory served by private water or sewer lines, the owners of such lines may not recover the value thereof from the municipality in the absence of provisions for payment by contract or ordinance, unless the municipality appropriates such private lines and controls them as proprietor; the mere extension of the city limits to include such lines or the voluntary maintenance of such lines by the city does not amount to an appropriation of such lines by the municipality. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

.

Annexation Procedure Constitutional. - The procedure for annexation by cities of 5,000 or more, G.S. 160A-45 et seq., does not violate N.C. Const., Art. I, § 25, because it does not provide for trial by jury on issues of fact. Moody v. Town of Carrboro, 301 N.C. 318, 271 S.E.2d 265 (1980), rehearing denied, 301 N.C. 728, 274 S.E.2d 230 (1981).

The procedure for annexation by cities of 5,000 or more does not authorize a taking of private property without just compensation in violation of the due process clause of U.S. Const., Amend. V or the law of the land provision of N.C. Const., Art. I, § 19, on the alleged ground that petitioner will pay a substantial sum in ad valorem taxes to the annexing town without receiving any substantial benefits or major services he does not already receive, since petitioner may petition for a writ of mandamus pursuant to G.S. 160A-49(h) if he discovers he is not receiving services other residents are receiving, within 12 to 15 months from the effective date of the annexation, and the annexation procedure thus provides adequate due process safeguards to assure that citizens in the annexed area get municipal services on a nondiscriminatory basis. Moody v. Town of Carrboro, 301 N.C. 318, 271 S.E.2d 265 (1980), rehearing denied, 301 N.C. 728, 274 S.E.2d 230 (1981).

Provisions Not Unconstitutional as Special or Local Legislation. - Sections 160A-45 through 160A-50 are not unconstitutional as special or local legislation even though as enacted the statutes exempted certain counties from their application, because municipal annexation is not one of the subject matter areas which the Constitution requires to be accomplished by general or uniformly applicable laws. In re City of Durham Annexation Ordinance Numbered 5991 for Area A, 69 N.C. App. 77, 316 S.E.2d 649, appeal dismissed and cert. denied, 312 N.C. 493, 322 S.E.2d 553 (1984).

Sections 160A-45 et seq. do not violate N.C. Const., Art. II, § 24, which prohibits the General Assembly from enacting "any local, private, or special act or resolution" in regard to certain enumerated subjects. This constitutional provision does not apply to annexation proceedings by municipalities, since N.C. Const., Art. VII, § 1, authorizes the General Assembly "except as otherwise prohibited by this Constitution" to "give such powers and duties to counties, cities, and towns and other governmental subdivisions as it may deem advisable," and no other provision of the Constitution prohibits the General Assembly from enacting special legislation for the annexation of areas by municipalities. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, cert. denied and appeal dismissed, 312 N.C. 492, 322 S.E.2d 553 (1984).

No Denial of Equal Protection. - Part 3 of Article 4A of Chapter 160A does not deny equal protection under either the state or federal Constitutions. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, cert. denied and appeal dismissed, 312 N.C. 492, 322 S.E.2d 553 (1984).

Rational Basis for Statutory Scheme. - Given the state policy, it is not difficult to conceive of a rational basis supportive of the patchwork statutory scheme governing annexation in North Carolina. Thompson v. Whitley, 344 F. Supp. 480 (E.D.N.C. 1972).

The annexation statutes are not taxation statutes, nor are they retrospective taxation statutes. Little Red School House, Ltd. v. City of Greensboro, 71 N.C. App. 332, 322 S.E.2d 195 (1984), cert. denied and appeal dismissed, 313 N.C. 514, 329 S.E.2d 392 (1985).

Legislative Intent. - To apply a strict interpretation to G.S. 160A-45, et seq., would contravene the intent of the legislature, which is to obtain a meaningful review of annexation ordinances. Southern Glove Mfg. Co. v. City of Newton, 63 N.C. App. 754, 306 S.E.2d 466 (1983).

The legislative policy expressed in this section is that municipalities remain dynamic growing entities. Quality Water Supply, Inc. v. City of Wilmington, 97 N.C. App. 400, 388 S.E.2d 608, cert. denied, 326 N.C. 597, 393 S.E.2d 881 (1990).

Central purpose behind the annexation procedure is to assure that, in return for the added financial burden of municipal taxation, the residents receive the benefits of all the major services available to municipal residents. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982); In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

The General Assembly has established detailed criteria and guidelines for annexation under Part 3 of this Article. McKenzie v. City of High Point, 61 N.C. App. 393, 301 S.E.2d 129, cert. denied, 308 N.C. 544, 302 S.E.2d 885 (1983).

The minimum requirements of the annexation statute are that the city provide information which is necessary to allow the public and the courts to determine whether the municipality has committed itself to provide a nondiscriminatory level of service. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

Prima facie complete and substantial compliance with this Part is a condition precedent to annexation of territory by a municipality. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978).

The provisions of this section are merely statements of policy. No procedural steps, substantive rights, or annexation requirements are contained in that statute. Humphries v. City of Jacksonville, 300 N.C. 186, 265 S.E.2d 189 (1980); In re Annexation Ordinance No. D-21927, 303 N.C. 220, 278 S.E.2d 224 (1981).

Policies enumerated under this section are aids for statutory interpretation when other sections of Part 3 of this Article are in need of clarification, definition, and interpretation. Humphries v. City of Jacksonville, 300 N.C. 186, 265 S.E.2d 189 (1980); In re Annexation Ordinance No. D-21927, 303 N.C. 220, 278 S.E.2d 224 (1981).

Statement of Policy Not Part of G.S. 160A-50 "Procedure". - The statement of state policy with regard to annexation set forth in this section is not part of the "procedure" of annexation under G.S. 160A-50. In re Annexation Ordinance No. D-21927, 303 N.C. 220, 278 S.E.2d 224 (1981).

It is not required that proposed sewer interceptors be included on the maps that accompany annexation reports. Trask v. City of Wilmington, 64 N.C. App. 17, 306 S.E.2d 832 (1983), cert. denied, 310 N.C. 630, 315 S.E.2d 697 (1984).

The legislature has recognized the importance of adequate water and sewer facilities to the end of quality urban development and specifically required that certain present and proposed water and sewer facilities be shown in the report. That the legislature did not include proposed sewer interceptors among those certain facilities is a matter of legislative concern. Trask v. City of Wilmington, 64 N.C. App. 17, 306 S.E.2d 832 (1983), cert. denied, 310 N.C. 630, 315 S.E.2d 697 (1984).

Prior Jurisdiction Doctrine. - Adherence to the prior jurisdiction doctrine is not only consistent with the majority rule, but is in keeping with the spirit and intent of the annexation statutes. City of Burlington v. Town of Elon College, 310 N.C. 723, 314 S.E.2d 534 (1984).

A county may not exercise jurisdiction over any part of a city located within its borders. Davidson County v. City of High Point, 321 N.C. 252, 362 S.E.2d 553 (1987).

Statutes do not give a county authority over provision of sewer services within a city, or over newly annexed areas of the city which also lie in the county. Davidson County v. City of High Point, 321 N.C. 252, 362 S.E.2d 553 (1987).

Use of City-Owned Sewage Treatment Plant Without Prior Approval of County. - Since county had no authority to restrict or regulate city's provision of sewer service to its residents, the city could use city-owned sewage treatment plant located outside the city but within the county, which was upgraded pursuant to the county's special use permit, with a condition attached to the permit requiring the county's prior approval of service to county citizens, to meet its statutory mandate to provide sewer service to residents in newly annexed areas without seeking the county's prior approval, even though the facility was located in the county. Davidson County v. City of High Point, 321 N.C. 252, 362 S.E.2d 553 (1987).

Where one municipality institutes valid annexation proceedings first, that municipality should be given priority under the prior jurisdiction rule, and subsequent annexation proceedings, of whatever nature, are of no force and effect. City of Burlington v. Town of Elon College, 310 N.C. 723, 314 S.E.2d 534 (1984).

Meaningful Benefit Provided to Annexed Residents. - Town's annexation was valid because: (1) according to the annexation report, the town would extend its municipal services on a non-discriminatory basis, thus satisfying the statutory requirements under G.S. 160A-47(3); (2) the town annexation provided police protection, a service that promoted the health, safety, and welfare of residents within the annexed area; (3) such protection provided a meaningful benefit to the annexed residents and furthered the public policies underlying the annexation statutes, under G.S. 160A-45; and (4) property owners were bound by a trial court's factual finding that the owners had not shown that the annexation area currently received police services that were comparable to those that the town would provide the annexation area after the annexation became effective. Nolan v. Town of Weddington, 182 N.C. App. 486, 642 S.E.2d 261 (2007).

Preference of Landowners Is of No Consequence. - For purposes of the prior jurisdiction rule, annexation proceedings, regardless of their nature, are "equivalent proceedings," and it is of no consequence which town or city the landowners prefer. In fact, it appears to be the very essence of the involuntary annexation procedures that the affected landowners have no choice, as long as the annexing body complies with the applicable statutes. City of Burlington v. Town of Elon College, 310 N.C. 723, 314 S.E.2d 534 (1984).

Discovery. - Though discovery in annexation proceedings is not altogether forbidden, its scope is necessarily limited by the nature of the proceeding. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, cert. denied and appeal dismissed, 312 N.C. 492, 322 S.E.2d 553 (1984).

Reports' Statement of Policy Objectives Held Sufficient. - A statement in an annexation plan report that the annexation was designed to promote sound urban development and assure adequate provision of government services was a sufficient statement of the policy objectives to be met by the annexation to comply with this section. Moody v. Town of Carrboro, 301 N.C. 318, 271 S.E.2d 265 (1980), rehearing denied, 301 N.C. 728, 274 S.E.2d 230 (1981).

Judicial Review. - The General Assembly has provided for limited judicial review of annexation ordinances. Section 160A-50 provides that a property owner in the annexed area may seek judicial review of the ordinance. Upon such review, the superior court may consider only whether (1) the statutory procedure was not followed, or (2) the provisions of G.S. 160A-47 were not met, or (3) the provisions of G.S. 160A-48 have not been met. Additionally, petitioner must carry the burden of showing both noncompliance with statutory requirements and procedure and material injury flowing from such noncompliance. McKenzie v. City of High Point, 61 N.C. App. 393, 301 S.E.2d 129, cert. denied, 308 N.C. 544, 302 S.E.2d 885 (1983).


§ 160A-58.51. Definitions.

As used in this Part, the following definitions apply:

  1. Contiguous area. - Any area which, at the time annexation procedures are initiated, either abuts directly on the municipal boundary or is separated from the municipal boundary by a street or street right-of-way, a creek or river, the right-of-way of a railroad or other public service corporation, lands owned by the municipality or some other political subdivision, or lands owned by the State of North Carolina. A connecting corridor consisting solely of the length of a street or street right-of-way may not be used to establish contiguity.
  2. Eligible property owner. - A property owner who is eligible to be notified of the opportunity to have water lines and sewer lines and connections installed at no cost to the property owner. A property owner is eligible to be notified of the opportunity to have water lines and sewer lines and connections installed at no cost to the property owner if that property owner held a freehold interest in the real property to be annexed as of the date of the combined notice of public informational meeting and public hearing.
  3. Necessary land connection. - An area that does not exceed twenty-five percent (25%) of the total area to be annexed.
  4. Property owner. - Any person having a freehold interest in real property.
  5. Used for residential purposes. - Any lot or tract five acres or less in size on which is constructed a habitable dwelling unit. The term also includes any lot or tract that is used in common for social or recreational purposes by either owners of lots with habitable dwelling units or owners of lots intended for occupation by dwelling units and the lot owners have a real property interest in the commonly used property that attaches to or is appurtenant to the owners' lots.

History

(2011-396, s. 9; 2012-11, s. 4.)

Editor's Note. - Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

Subdivisions (2) through (5) of this section were originally enacted by Session Laws 2011-396, s. 9, as subdivisions (1a), (2), (3) and (4), respectively. The subdivisions have been renumbered at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2012-11, s. 2, effective July 1, 2012, in the first sentence of subdivision (2), deleted "to sign a petition to deny an annexation ordinance or a property owner who is eligible"; and deleted the second sentence, which read: "A property owner is eligible to sign a petition to deny an annexation ordinance if the property owner held a freehold interest in the property, determined as of the date of the resolution of consideration." For applicability, see Editor's note.

CASE NOTES

Coincidence of Boundary Requirement. - In considering the coincidence of boundary requirement, the entire area proposed for annexation must be viewed as a whole, rather than as various component portions. Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599 (1987).

Territory which is contiguous solely to "satellite corporate limits" is not a "contiguous area " as that term is defined in subdivision (1). Hawks v. Town of Valdese, 299 N.C. 1, 261 S.E.2d 90 (1980).

Classification of Landlocked and Fronting Lots in Single Ownership as Single Lot. - It is not unreasonable and beyond the statutory definition to classify a landlocked lot and its fronting lot in single ownership as a single lot in residential use where only the fronting lot contains "a habitable dwelling unit." Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496 (1969).

Annexation Proper. - Village essentially complied with the requirements of G.S. 160A-41 because the village met the literal contiguity requirements in annexing an area. Norwood v. Village of Sugar Mt., 193 N.C. App. 293, 667 S.E.2d 524 (2008), review denied, review dismissed, as moot, 363 N.C. 582, 682 S.E.2d 386 (2009).

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"Used for Residential Purposes." - Under G.S. 160A-53(2), "used for residential purposes" means any lot or tract five acres or less in size on which is constructed a habitable dwelling unit, for purposes of an annexation ordinance. Arnold v. City of Asheville, 186 N.C. App. 542, 652 S.E.2d 40 (2007), review denied, 362 N.C. 354, 663 S.E.2d 312 (2008).

Mobile Homes as "Constructed" for "Residential Purposes" Requirement. - Petitioners/property owners failed to overcome the presumption that the City substantially complied with G.S. 160A-48(c)(3) when it moved to annex disputed areas; mobile homes used to meet the "urban purposes" percentage requirement were "constructed" on the lots pursuant to "residential purposes" as defined by subdivision (2) of this section, and the deletion of a condemned home, originally included as a "habitable" residence, did not affect the calculations or the city's compliance. Bali Co. v. City of Kings Mt., 134 N.C. App. 277, 517 S.E.2d 208 (1999).

Tract Classified as Residential Despite Growing of Grass Thereon for Cattle Feed. - A city could classify a 1.83 acre tract with a rented house located on it as one lot used for residential purposes, despite the fact that on two separate parts of the lot fescue and sudex grass was grown and a person living in the neighborhood had been allowed to mow this grass, bale it and feed it to his cows. Southern Glove Mfg. Co. v. City of Newton, 75 N.C. App. 574, 331 S.E.2d 180, cert. denied, 314 N.C. 669, 336 S.E.2d 401 (1985).


§ 160A-58.52. Authority to annex.

The governing board of any municipality may extend the corporate limits of such municipality under the procedure set forth in this Part.

History

(2011-396, s. 9.)

Editor's Note. - Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

CASE NOTES

Annexation of territory to a municipal corporation is a legislative function which may not be delegated to a court. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

Municipality's Discretion Limited to Method of Annexation. - The only discretion given to the governing boards of municipalities is the permission and discretionary right to use the new method of annexation set out in this Article, provided such boards conform to the procedure and meet the requirements set out in this Part as a condition precedent to the right to annex. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

Burden of Showing Failure to Meet Statutory Requirements. - Where the record of annexation proceedings under this section on its face showed substantial compliance with every essential element of the applicable statutes, the burden was upon petitioners, who appealed from the annexation ordinance, to show by competent evidence that the city in fact failed to meet the statutory requirements or that there was irregularity in the proceedings which materially prejudiced their substantive rights. Dunn v. City of Charlotte, 284 N.C. 542, 201 S.E.2d 873 (1974).

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This section is constitutional. In re Annexation Ordinances Nos. 866-870, 253 N.C. 637, 117 S.E.2d 795 (1961).

Right to Use New Annexation Method as Only Discretion Delegated to Municipalities. - By the enactment of Part 3 of this Article, the General Assembly did not delegate to the municipalities of the State having a population of 5,000 or more any discretion with respect to the provisions of the law. The guiding standards and requirements of the act are set out in great detail. The only discretion given to the governing boards of such municipalities is the permissive or discretionary right to use this new method of annexation, provided such boards conform to the procedure and meet the requirements set out in the act as a condition precedent to the right to annex. In re Annexation Ordinances Nos. 866-870, 253 N.C. 637, 117 S.E.2d 795 (1961).

A city has statutory authority to annex areas both contiguous and non-contiguous to its primary corporate limits. It must stand ready to provide sewer service (among other services) to newly annexed areas on substantially the same basis and in the same manner in which these services are provided to the rest of the city. Davidson County v. City of High Point, 321 N.C. 252, 362 S.E.2d 553 (1987).

Use of City-Owned Sewage Treatment Plant Without Prior Approval of County. - Since county had no authority to restrict or regulate city's provision of sewer service to its residents, the city could use city-owned sewage treatment plant located outside the city but within the county, which was upgraded pursuant to the county's special use permit, with a condition attached to the permit requiring the county's prior approval of service to county citizens, to meet its statutory mandate to provide sewer service to residents in newly annexed areas without seeking the county's prior approval, even though the facility was located in the county. Davidson County v. City of High Point, 321 N.C. 252, 362 S.E.2d 553 (1987).


§ 160A-58.53. Prerequisites to annexation.

A municipality exercising authority under this Part shall make plans for the extension of services to the area proposed to be annexed and shall, prior to the public hearing provided for in G.S. 160A-58.55, prepare a report setting forth such plans to provide services to the area proposed to be annexed. The report shall include the following:

  1. A map or maps of the municipality and adjacent territory to show the following information:
    1. The present and proposed boundaries of the municipality.
    2. The present major trunk water mains and sewer interceptors and outfalls, and the proposed extensions of such mains, outfalls, and lines as required in subdivision (3) of this section. The water and sewer map shall bear the seal of a registered professional engineer.
    3. The general land use pattern in the area proposed to be annexed.
  2. A statement showing that the area proposed to be annexed meets the requirements of G.S. 160A-58.54.
  3. A statement setting forth the plans for extending to the area proposed to be annexed each major municipal service on substantially the same basis and in the same manner as such services are provided within the rest of the municipality prior to annexation and the method to finance the extension of major municipal services into the area proposed to be annexed as follows:
    1. Provision of police protection, fire protection, solid waste collection, and street maintenance services on the effective date of annexation. A contract with a rural fire department to provide fire protection shall be an acceptable method of providing fire protection. A contract with a private firm to provide solid waste collection services shall be an acceptable method of providing solid waste collection services.
    2. Extension of water and sewer services to each lot or parcel, if an installation easement is provided by the affected property owner, with a proposed timetable for construction of such mains, outfalls, and lines within three and one-half years of the effective date of annexation, in accordance with G.S. 160A-58.56.
  4. A statement of the impact of the annexation on any rural fire department providing service in the area proposed to be annexed and a statement of the impact of the annexation on fire protection and fire insurance rates in the area proposed to be annexed, if the area where service is provided is in an insurance district designated under G.S. 153A-233, a rural fire protection district under Article 3A of Chapter 69 of the General Statutes, or a fire service district under Article 16 of Chapter 153A of the General Statutes. The rural fire department shall make available to the municipality not later than 30 days following a written request from the municipality all information in its possession or control, including operational, financial, and budgetary information, necessary for preparation of a statement of impact. The municipality shall, in a timely fashion, supply the rural fire department with information requested by the rural fire department to respond to the written request. The rural fire department forfeits its rights under G.S. 160A-58.57 if it fails to make a good faith response within 45 days following receipt of the written request for information from the municipality, provided that the municipality's written request so states by specific reference to this subdivision.
  5. A statement showing how the proposed annexation will affect the municipality's finances and services, including municipal revenue change estimates. This statement shall be delivered to the clerk of the board of county commissioners at least 30 days before the date of the public informational meeting on any annexation under this Part.

History

(2011-396, s. 9.)

Editor's Note. - Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

CASE NOTES

Local Modification Held Unconstitutional. - Chapter 1189, Session Laws 1963, amending subdivision (3)b of this section solely as it applied to the Town of Beaufort and providing that a municipality shall not be required to extend sewage outfalls into an area annexed by it in the event that the municipal sewerage system shall have been declared a source of unlawful pollution, was a local act relating to health and sanitation within the meaning of N.C. Const., Art. II, § 24, and was unconstitutional and void. Gaskill v. Costlow, 270 N.C. 686, 155 S.E.2d 148 (1967); Safrit v. Costlow, 270 N.C. 680, 155 S.E.2d 252 (1967).

Standard of Review Under This Section. - The trial court's order affirming a town annexation ordinance had to be vacated where the court applied the material prejudice standard of review to the adequacy of maps contained in the town report as well as to the questions of solid waste collection and the financing of services instead of determining whether or not the town complied with this section in formulating and carrying out its annexation plan; procedural irregularities under G.S. 160A-37 are to be evaluated under a "material prejudice" standard, while violations of either this section or G.S. 160A-36 are to be viewed in light of compliance or lack thereof and, if necessary, result in appropriate amendment. Sonopress, Inc. v. Town of Weaverville, 139 N.C. App. 378, 533 S.E.2d 537 (2000).

Municipality, as a condition precedent to the right to annex, must file a report showing on its face strict compliance with statutory requirements, and upon review in superior court has the burden of sustaining the regularity, adequacy, veracity and validity of the report and annexation ordinance by competent evidence. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

The legislature has empowered municipal governing boards to amend the report required by this section, in order to make changes in the plans for serving the area proposed to be annexed, so long as such changes meet the requirements of this section. Gregory v. Town of Plymouth, 60 N.C. App. 431, 299 S.E.2d 232, cert. denied, 308 N.C. 544, 304 S.E.2d 237 (1983).

Plans Held in Compliance with Subdivision (3)a. - Plans which contained (1) information with respect to the current level of services within town, (2) a commitment to provide substantially the same level of services in the annexation area, and (3) information as to how the extension of services would be financed set forth sufficient information to allow the public and the courts to determine that the town had committed itself to provide a nondiscriminatory level of services to the annexed area and to establish compliance with subdivision (3)a. Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, aff'd, 321 N.C. 589, 364 S.E.2d 139 (1988).

Failure to Call for Increase in Personnel in Plans. - Plans for services to the annexed area are not defective in failing to call for any significant increase in personnel where the record is devoid of evidence showing any need for increased personnel. Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496, cert. denied, 275 N.C. 681 (1969).

The fact that the metes and bounds description in a resolution of intent to annex failed to close, because one small piece of property owned by a person who did not join the petition for review was not included within the resolution of intent, was not fatal to the validity of the annexation ordinance where the resolution of intent and the published notice of public hearing made full reference to a map filed in the office of the clerk of the city and available for public inspection of the area proposed to be annexed, and this map and a map published in the newspaper notice of the public hearing showed all the property proposed to be annexed. Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979).

This section does not make it incumbent upon the municipality to justify annexation other than to the extent of its ability to serve the areas to be annexed. Williams v. Town of Grifton, 19 N.C. App. 462, 199 S.E.2d 288 (1973).

While the extent to which an area needs municipal services is among the factors to be considered in a decision to annex, the statute requires only that a city demonstrate an ability to serve the area to be annexed. Thompson v. City of Salisbury, 24 N.C. App. 616, 211 S.E.2d 856, cert. denied, 287 N.C. 264, 214 S.E.2d 437 (1975).

Map Requirement Met. - Annexation report complied with statutory map requirements where the map indicated the current town limits, the area of proposed annexation, and the current town limits of satellite annexation, as well as major roads and property boundaries; there was no requirement that the report contain a sealed map where the town did not plan to extend water and sewer into an annexed area. Sonopress, Inc. v. Town of Weaverville, 149 N.C. App. 492, 562 S.E.2d 32, cert. denied, 355 N.C. 751, 565 S.E.2d 671 (2002).

Providing nondiscriminating level of services within statutory time is all that is required. Greene v. Town of Valdese, 306 N.C. 79, 291 S.E.2d 630 (1982).

Remedy Where Municipality Has Not Carried Out Service Plans Adopted under Subdivision (3). - The statutory remedy for owners of property in annexed territory where the municipality has not followed through on its service plans adopted under the provisions of subdivision (3) of this section and G.S. 160A-37 is by writ of mandamus. Safrit v. Costlow, 270 N.C. 680, 155 S.E.2d 252 (1967).

Record Held to Sustain Finding of Compliance. - Where the record disclosed the plans of the municipality for extending municipal services to the area annexed, itemizing the cost, and obtaining such cost from current taxes, the record supported a finding by the court of compliance with this section, and such finding would not be disturbed in the absence of evidence to the contrary of sufficient weight to overcome the prima facie presumption of regularity. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

Evidence supporting the plans set out in the report, and no evidence that the service would not be adequate, was sufficient to support the conclusion that the police protection requirement of this section would be met. Williams v. Town of Grifton, 19 N.C. App. 462, 199 S.E.2d 288 (1973).

Annexation ordinance and report met the requirements of this section and G.S. 160A-37. Williams v. Town of Grifton, 22 N.C. App. 611, 207 S.E.2d 275 (1974).

A second public hearing after amendment is not required by this section. Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496, cert. denied, 275 N.C. 681 (1969).

There is no requirement that a second public hearing be held on an amended annexation proposal, when that amendment is adopted to achieve compliance with this section, pursuant to the authority granted in G.S. 160A-37(e). Gregory v. Town of Plymouth, 60 N.C. App. 431, 299 S.E.2d 232, cert. denied, 308 N.C. 544, 304 S.E.2d 237 (1983).

There is no requirement that a second public hearing be held on an amended annexation proposal, when that amendment is adopted to achieve compliance with G.S. 160A-35, and G.S. 160A-35 is the corollary to G.S. 160A-47, with the only significant difference in these statutes being that G.S. 160A-35 applies to cities less than 5,000 and G.S. 160A-47 applies to cities of 5,000 or more. Arnold v. City of Asheville, 186 N.C. App. 542, 652 S.E.2d 40 (2007), review denied, 362 N.C. 354, 663 S.E.2d 312 (2008).

Town Not Required to Provide Service. - Language in annexation ordinances to the effect that since water service then provided to the annexed areas by plaintiff was comparable to that provided by the town, the town would not be required to appropriate funds to extend water and sewer lines to the annexed area was required by G.S. 160A-37(e)(3) and subdivision (3)b to insure that residents of the area to be annexed would have access to comparable water service; in no way did this serve as a promise to be rightfully relied upon that the town would not in the future construct its own water lines within the annexed area or that plaintiff had the exclusive right to furnish water service there. Carolina Water Serv., Inc. v. Town of Atlantic Beach, 121 N.C. App. 23, 464 S.E.2d 317 (1995).

Additional Services Not Required. - Annexation report complied with statutory requirements where it stated that no additional police officers were required by the annexation and that roads would continue to be maintained by the State; evidence supported the town's statements that additional police officers were not required and that the State would continue to provide road maintenance. Sonopress, Inc. v. Town of Weaverville, 149 N.C. App. 492, 562 S.E.2d 32, cert. denied, 355 N.C. 751, 565 S.E.2d 671 (2002).

Annexation Proper. - Trial court properly found that a village provided independent administrative, engineering, auditing, legal, and planning services to its residents, and that the village was exploring options for obtaining additional police patrol services, and had committed itself to providing its current and future levels of such services to its residents in a non-discriminatory manner; the trial court found that the village was going to provide some additional services to the area to be annexed, notwithstanding land owners' claim they would receive no additional services whatsoever, and the trial court's order affirming the annexation was proper. Nolan v. Village of Marvin, 172 N.C. App. 84, 615 S.E.2d 898 (2005).

Village essentially complied with the requirements of G.S. 160A-35 because a map prepared by the village as part of its original report clearly included a one-acre tract of land which was ultimately annexed. Moreover, the annexation ordinance would have extended the same police protection, waste collection services, and recreation department facilities that were then provided within the village. Norwood v. Village of Sugar Mt., 193 N.C. App. 293, 667 S.E.2d 524 (2008), review denied, review dismissed, as moot, 363 N.C. 582, 682 S.E.2d 386 (2009).

Annexation Ordinance Unenforceable. - Appellate court's decision that upheld the trial court's judgment upholding the annexation ordinance was reversed, as the village's annexation ordinance did not provide for meaningful extension of municipal services to the lots subject to annexation, which meant that the village had not substantially complied with the statutory procedures for annexation and that the property owners would suffer material injury, in the form of municipal taxes, if annexation proceeds. Nolan v. Village of Marvin, 360 N.C. 256, 624 S.E.2d 305 (2006).

Financing Statement Not Required. - Town did not need to set out a method for the financing of additional services in its annexation report where the town's statement that no additional services were required was supported by competent evidence in the record; a financing statement was required only if there was to be an extension of services. Sonopress, Inc. v. Town of Weaverville, 149 N.C. App. 492, 562 S.E.2d 32, cert. denied, 355 N.C. 751, 565 S.E.2d 671 (2002).

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I. IN GENERAL.

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Purpose. - The purpose of this section is to insure that major municipal services are provided to newly annexed areas on a nondiscriminatory basis. Wallace v. Town of Chapel Hill, 93 N.C. App. 422, 378 S.E.2d 225 (1989).

The purpose of this statute is to insure that, in return for the financial burden of city taxes, annexed residents receive all major city services. Parkwood Ass'n v. City of Durham, 124 N.C. App. 603, 478 S.E.2d 204 (1996).

Section Required to Be Followed Only Where Annexation Achieved Under Chapter 160A, Art. 4A, Part 3. - This section, dealing with the submission of plans by the municipality for the extension of municipal services (including police and fire protection, solid waste collection, and street maintenance), and G.S. 160A-49.1 and 160A-49.3, dealing with contracting for fire protection and sewage services, are required to be followed by a municipality only where the annexation is to be achieved under Chapter 160A, Art. 4A, Part 3. Piedmont Ford Truck Sales, Inc. v. City of Greensboro, 90 N.C. App. 692, 370 S.E.2d 262 (1988), rev'd on other grounds, 324 N.C. 499, 380 S.E.2d 107 (1989).

The annexation statutes are not taxation statutes, nor are they retrospective taxation statutes. Little Red School House, Ltd. v. City of Greensboro, 71 N.C. App. 332, 322 S.E.2d 195 (1984), cert. denied and appeal dismissed, 313 N.C. 514, 329 S.E.2d 392 (1985).

Central purpose behind the annexation procedure is to assure that, in return for the added financial burden of municipal taxation, the residents receive the benefits of all the major services available to municipal residents. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982); Trask v. City of Wilmington, 64 N.C. App. 17, 306 S.E.2d 832 (1983), cert. denied, 310 N.C. 630, 315 S.E.2d 697 (1984); In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

Local act requiring city to extend municipal services, including services under this section, to newly annexed areas did not violate N.C. Const., Art. II, § 24(1)(a). Piedmont Ford Truck Sale v. Greensboro, 324 N.C. 499, 380 S.E.2d 107 (1989).

A city has statutory authority to annex areas both contiguous and non-contiguous to its primary corporate limits. It must stand ready to provide sewer service (among other services) to newly annexed areas on substantially the same basis and in the same manner in which these services are provided to the rest of the city. Davidson County v. City of High Point, 321 N.C. 252, 362 S.E.2d 553 (1987).

Use of City-Owned Sewage Treatment Plant Without Prior Approval of County. - Since county had no authority to restrict or regulate city's provision of sewer service to its residents, the city could use city-owned sewage treatment plant located outside the city but within the county, which was upgraded pursuant to the county's special use permit, with a condition attached to the permit requiring the county's prior approval of service to county citizens, to meet its statutory mandate to provide sewer service to residents in newly annexed areas without seeking the county's prior approval, even though the facility was located in the county. Davidson County v. City of High Point, 321 N.C. 252, 362 S.E.2d 553 (1987).

Discovery. - Judicial review of an annexation ordinance is a limited judicial review, with few similarities to ordinary civil actions which are initiated, tried and adjudicated in a different manner and for which the Rules of Civil Procedure were mostly devised. Nevertheless, since the court reviewing annexation proceedings is explicitly authorized to receive evidence as to the city's compliance with the various procedures prescribed, as to its annexation plan meeting the requisites of this section, and as to the area involved being eligible for annexation under G.S. 160A-48, in those instances where discovery may illuminate these issues it is authorized under the Rules of Civil Procedure. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, cert. denied and appeal dismissed, 312 N.C. 492, 322 S.E.2d 553 (1984).

II. MAPS.

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It is not required that proposed sewer interceptors be included on the maps that accompany annexation reports. Trask v. City of Wilmington, 64 N.C. App. 17, 306 S.E.2d 832 (1983), cert. denied, 310 N.C. 630, 315 S.E.2d 697 (1984).

Maps Held Sufficient. - Maps prepared by a town as part of its revised annexation plan report substantially complied with subdivision (1) of this section, although the eastern boundary and approximately one-fifth of the town area were omitted and the map showing the general land use pattern contained several blank areas representing vacant lots which did not appear as a category on the legend of the maps, where both the entire area contiguous to the area to be annexed and that area itself were included on the map. Moody v. Town of Carrboro, 301 N.C. 318, 271 S.E.2d 265 (1980), rehearing denied, 301 N.C. 728, 274 S.E.2d 230 (1981).

III. PLANS FOR EXTENDING SERVICES.

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A. IN GENERAL.

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Plans for Extension of Services as Condition Precedent. - The requirement of plans for extension to the area to be annexed of all major municipal services performed within the municipality at the time of annexation is a condition precedent to annexation. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

The minimum requirements of subdivision (3) are that the city provide information which is necessary to allow the public and the courts to determine whether the municipality has committed itself to provide a nondiscriminatory level of service and to allow a reviewing court to determine after the fact whether the municipality has timely provided such services. In re Annexation Ordinance No. 300-X, 304 N.C. 549, 284 S.E.2d 470 (1981); Trask v. City of Wilmington, 64 N.C. App. 17, 306 S.E.2d 832 (1983), cert. denied, 310 N.C. 630, 315 S.E.2d 697 (1984).

The minimum requirements of the annexation statute are that the city provide information which is necessary to allow the public and the courts to determine whether the municipality has committed itself to provide a nondiscriminatory level of service and to allow a reviewing court to determine after the fact whether the municipality has timely provided such services. If such services are not provided, the residents of the annexed area would be entitled to a writ of mandamus requiring the municipality to live up to its commitments. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

The minimum requirements of the annexation statute are that the city provide information which is necessary to allow the public and the courts to determine whether the municipality has committed itself to provide a nondiscriminatory level of service. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

Providing Forms to Property Owners. - Subdivision (3)(b) does not require the city to provide notice to the property owners that they may request a form providing for extension of lines to their property in accordance with the financial policies of the city, and in the absence of a request, the city is not required to provide forms to property owners to be used to request extensions from their property to a major main in accordance with the city financial policies for such extensions. Barnhardt v. City of Kannapolis, 116 N.C. App. 215, 447 S.E.2d 471, cert. denied, 338 N.C. 514, 452 S.E.2d 807 (1994).

Use of the word "substantially" in subdivision (3)a does not render the section vague and ambiguous. In re Annexation Ordinance No. D-21927, 303 N.C. 220, 278 S.E.2d 224 (1981).

This Article requires that services be provided on substantially the same basis and in the same manner as such services are provided within the rest of the municipality prior to annexation. When a municipality engages in supplying water to its inhabitants, it owes the duty of equal service to consumers within its corporate limits, as a general rule. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

The city is required by law to provide waste disposal services on substantially the same basis and in the same manner as such services are provided within the municipality prior to annexation. Stillings v. City of Winston-Salem, 63 N.C. App. 618, 306 S.E.2d 489 (1983), rev'd on other grounds, 311 N.C. 689, 319 S.E.2d 233 (1984).

Subdivision (3)a of this section requires that the annexation report reflect the city's plans to provide certain enumerated services on substantially the same basis and in the same manner as in the rest of the city. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

Nowhere in this section does the concept of equality with "average service" appear in reference to the municipal services to be supplied by the annexing municipality. No reasonable reading of the statutory language permits that inference. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

There is no requirement that a municipality duplicate services, in an area to be annexed, which are already available in the area. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978); In re Annexation Ordinance, 300 N.C. 337, 266 S.E.2d 661 (1980).

City May Not Delegate Duty of Extending Services. - The city must furnish major municipal services to areas annexed as provided by Parts 2 and 3 of this Article. The performance of this duty may not be made to depend upon a doubtful contingency, and may not be delegated to others by the city so as to relieve the city of the duty. If other parties are obligated to the city to perform such duty, the city must enforce the obligation directly against such parties and may not be otherwise relieved of its primary duty to the area which it seeks to make a part of the city for all other purposes. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

Plans May Provide Only for Needed Services. - Plans for extension of services may, of course, take into consideration all circumstances and provide only for services if and when needed. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

When a village proposed to involuntarily annex an area which contained privately owned streets, owners of property on the private streets could not defeat the annexation by denying the village's employees access to the private streets, if the owners chose to keep the streets private and the area were annexed, because it was not the intent of the general assembly, in adopting G.S. 160A-47(3), to provide private communities with an avenue to defeat annexation by denying access to municipal employees, when all other statutory requirements were met, as this would create unacceptable inequities between the rights of citizens in private communities and those living on public roads. Pinewild Project Ltd. P'ship v. Vill. of Pinehurst, 198 N.C. App. 347, 679 S.E.2d 424 (2009), review denied, 363 N.C. 856, 691 S.E.2d 17, N.C. LEXIS 110 (2010).

When a village proposed to involuntarily annex an area which contained privately owned streets, the village's annexation plan met the requirements of G.S. 160A-47(3) when the village proposed that, if the street's owners dedicated the street to the village, the village would provide the same level of municipal services as the village provided to residents living on public streets because these options were substantially consistent with how the village currently treated public and private streets within the village's limits. Pinewild Project Ltd. P'ship v. Vill. of Pinehurst, 198 N.C. App. 347, 679 S.E.2d 424 (2009), review denied, 363 N.C. 856, 691 S.E.2d 17, N.C. LEXIS 110 (2010).

Statement of Plans for Extension of Services. - In its annexation report the city must include a statement setting forth the plans of the municipality for extending certain enumerated municipal services to the area to be annexed on the date of annexation on substantially the same basis and in the same manner as such services are provided within the rest of the municipality prior to annexation. Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980).

Only Services Listed in Subdivision (3) Must Be Described in Plan. - The annexation statute requires municipalities to include in their annexation reports plans to extend into the area proposed to be annexed only those municipal services specifically enumerated in subdivision (3) of this section: police protection, fire protection, garbage collection, street maintenance, major trunk water mains, and sewer outfall lines. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

Other Anticipated Services Need Not Be Included. - In a municipal annexation proceeding the city is not required to include in its annexation report plans for extending into the proposed annexation area municipal services other than those enumerated in subdivision (3) of this section. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

The legislative intent expressed in subdivision (3) requires extension of a variety of municipal services, all of which are required for the public health and safety. Public transportation and parks and recreational facilities do not fall within this classification of service. In re Annexation Ordinance No. 1219, 62 N.C. App. 588, 303 S.E.2d 380, cert. denied and appeal dismissed, 309 N.C. 820, 310 S.E.2d 351 (1983).

Municipal services, such as transportation, which are not specifically enumerated in subsection (3) are not required to be included in the annexation report. Parkwood Ass'n v. City of Durham, 124 N.C. App. 603, 478 S.E.2d 204 (1996).

Since plans and procedures concerning transportation are not required by law, a reviewing court has no jurisdiction to hear evidence on this issue. Parkwood Ass'n v. City of Durham, 124 N.C. App. 603, 478 S.E.2d 204 (1996).

Only Major Municipal Services. - The required information is not that of plans for extending all municipal services, but only the "major" municipal services. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

City bus service and TV service are not "major" municipal services required to be addressed in the annexation report. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

The respondent city was not required to file a new services plan under this section although the annexation area changed during subsequent revisions to the annexation ordinance, where the only significant change to the services plan was the scope of its coverage - the services for petitioners remained the same - and where the city was bound by the terms of the services plan as amended under principles of equitable estoppel. Bowers v. City of Thomasville, 143 N.C. App. 291, 547 S.E.2d 68, cert. denied, 353 N.C. 723, 550 S.E.2d 769 (2001).

Contents of Report. - The report need contain only the following: (1) Information on the level of services then available in the city, (2) a commitment by the city to provide this same level of services in the annexed area within the statutory period, and (3) the method by which the city will finance the extension of these services. In re Annexation Ordinance No. 300-X, 304 N.C. 549, 284 S.E.2d 470 (1981).

The report need contain only the following: (1) information on the level of services then available in the city, (2) a commitment by the city to provide this same level of services in the annexed area within the statutory period, and (3) the method by which the city will finance the extension of these services. With this minimal information, both the city council and the public can make an informed decision of the costs and benefits of the proposed annexation, a reviewing court can determine whether the city has committed itself to a nondiscriminating level of services, and the residents and the courts have a benchmark against which to measure the level of services which the residents receive within the statutory period. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

Service Is Municipal Even If Performed by Another. - A service, such as water or sewer service, is a "municipal service" even though it is performed or furnished by an independent authority or by franchise. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

Service Must Still Be Included in Plan. - If the municipal service is one enumerated in subdivision (3) of this section, it must be included in the annexation report, even though it is provided by an independent authority or under a franchise agreement. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

The requirement that the annexation report contain a statement setting forth the plans for extending each major municipal service extends to a major service "performed within the municipality," not performed by the municipality. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

Plans Should Be Stated Fully and in Detail. - The report of plans for extension of services is the cornerstone of the annexation procedure under this Part, and to be of greatest possible benefit, the plans for services should be stated as fully and in as much detail as resources of the municipality reasonably permit. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

Response time is only one of many factors that enters into the court's consideration of whether an annexation report reflects plans to provide certain required municipal services on substantially the same basis and in the same manner as in the pre-annexation city area. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

Time for Implementing Extension of Services. - It would appear from a reading of G.S. 160A-49(h) that a city annexing territory has one year, and possibly 15 months, to implement its plan for extending services to an annexed area. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978); In re Annexation Ordinance, 300 N.C. 337, 266 S.E.2d 661 (1980).

Burden of Showing Noncompliance with Subdivision (3). - The burden is on petitioner to establish, by competent and substantial evidence, the city's noncompliance with subdivision (3). In re Annexation Ordinance No. 300-X, 304 N.C. 549, 284 S.E.2d 470 (1981); Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

Factors Affecting Whether a Plan Is Discriminatory. - A town's established policies for the provision of municipal services within pre-existing municipal limits should be taken into account when determining whether a proposed plan for extension of services to annexed territories is discriminatory. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

Plan Held Sufficient. - Trial court did not err in finding that city's report of plans for the extension of police protection into annexed area met the requirements of this section; the city made a prima facie showing of substantial compliance where it promised to provide a full range of police protection on the same basis and manner as in the present municipality and where the report then outlined the specific services it currently provided, to include a regular patrol division, criminal investigation, ordinance enforcement and traffic control. Thrash v. City of Asheville, 95 N.C. App. 457, 383 S.E.2d 657 (1989), rev'd on other grounds, 327 N.C. 251, 393 S.E.2d 842 (1990).

City's annexation plan which included provisions for police and fire protection and capital improvements for new water lines complied with subdivision (3)a. of this section, even though it did not include provisions for additional staff or equipment. Bali Co. v. City of Kings Mt., 134 N.C. App. 277, 517 S.E.2d 208 (1999).

When a city proposed the involuntary annexation of certain real property, it had to determine the use of that property at the time it prepared the service plan required by G.S. 160A-47, to determine if it complied with the urban usage percentages required under G.S. 160A-48(c)(3), and it was error to classify property according to its intended future use, rather than its use at the time the service plan was prepared. Ridgefield Props., L.L.C. v. City of Asheville, 159 N.C. App. 376, 583 S.E.2d 400 (2003), aff'd, 358 N.C. 216, 593 S.E.2d 584 (2004).

B. POLICE AND FIRE PROTECTION.

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There are many variables that affect the level of fire protection afforded to different areas of a municipality: height and size of buildings, construction materials, proximity of buildings to one another and street pattern, among others. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

Police Protection Provided. - Town's annexation was valid because: (1) according to the annexation report, the town would extend its municipal services on a non-discriminatory basis, thus satisfying the statutory requirements under G.S. 160A-47(3); (2) the town annexation provided police protection, a service that promoted the health, safety, and welfare of residents within the annexed area; (3) such protection provided a meaningful benefit to the annexed residents and furthered the public policies underlying the annexation statutes, under G.S. 160A-45; and (4) property owners were bound by a trial court's factual finding that the owners had not shown that the annexation area currently received police services that were comparable to those that the town would provide the annexation area after the annexation became effective. Nolan v. Town of Weddington, 182 N.C. App. 486, 642 S.E.2d 261 (2007).

Regardless of the level of services that county residents receive through a private contractor prior to annexation, the city is only required to provide annexed territories with substantially the same level of services as are enjoyed in other areas of the city. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

An increase in the police force proportional to the increase in the population attributable to annexation is a sufficiently sophisticated plan for the provision of services to meet the requirements of subdivision (3)a of this section. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

Where city planned to hire three additional sworn officers to maintain its current ratio of one officer for every 486 citizens, the plan was sufficient to meet the requirements of subdivision (3)a of this section. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

Full Compliance as to Police and Fire Protection Shown. - Record of annexation proceedings showed prima facie full compliance with this section in regard to extension of police and fire protection to the area to be annexed. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

City had shown prima facie compliance with the statute by proposing to provide fire protection services to the annexed area under the same plan as such services are provided to the pre-annexation portions of the city, and similar response times should be anticipated. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

When a city proposed to annex certain land, the city's proposal for the extension of police services to the annexed land met the requirements of G.S. 160A-47 because the plan addressed the level of services currently provided in the city and committed to provide substantially the same level of services to the annexed land, and this was all that the applicable statute required. Arnold v. City of Asheville, 186 N.C. App. 542, 652 S.E.2d 40 (2007), review denied, 362 N.C. 354, 663 S.E.2d 312 (2008).

Response time for the fire services is only one of many factors that determines whether an annexation report complies with statutory requirements for the extension of fire protection services. That an annexation report did not include an average response time did not preclude a finding of compliance with the statute. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

C. STREET MAINTENANCE.

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City Must Plan to Maintain Streets. - So far as an annexation proceeding is concerned, the primary duty of street maintenance in an area after annexation is upon the city, and it must in good faith make plans to maintain the streets, whether paved or unpaved, on substantially the same basis and in the same manner as such services are provided within the rest of the municipality prior to annexation. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

May Not Limit Its Duty to Streets Meeting Certain Standards. - A municipality may not limit its obligations to maintain streets in the area to be annexed by it to those streets which are improved to stipulated standards by the landowners and developers in the area. Any obligation of the landowners and developers to the city to improve the streets is a matter between them and the municipality and is irrelevant to the question of the sufficiency of the annexation ordinance to meet the requirements of the statute. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

Even if the property owners and developers in the area to be annexed are under a duty to the city to pave all streets and provide storm sewers and curbs and gutters, the city is in no position to rely on this obligation in an annexation proceeding and thereby shift to others the duty which this Article imposes on the city as a condition precedent to annexation. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

Specificity Concerning Street Maintenance. - A revised annexation plan report was sufficiently specific with respect to extension of street maintenance services where it detailed what services were provided in the annexing town and stated that all such services would be provided in the annexed area, and was not deficient in failing to provide for the extension of water and sewer lines where this was not a service provided by the town to anyone but was a duty vested with an independent water authority. Moody v. Town of Carrboro, 301 N.C. 318, 271 S.E.2d 265 (1980), rehearing denied, 301 N.C. 728, 274 S.E.2d 230 (1981).

City's annexation report was appropriate to the extent which it contained a statement setting forth the plans of the city for the extension of street maintenance services to the annexation area in compliance with G.S. 160A-47(3)(a). Capps v. City of Kinston, 215 N.C. App. 110, 715 S.E.2d 520, review denied, 365 N.C. 362, 719 S.E.2d 22, 2011 N.C. LEXIS 964 (2011).

D. WATER AND SEWER SERVICE.

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City May Not Limit Water and Sewer Services to Existing Lines. - Where an annexation ordinance contains no plans for the municipality to extend water and sewer services in the area to be annexed beyond those services presently in existence in the area unless the water and sewer lines are extended by landowners and developers in the area, the ordinance fails to meet the requirements of subdivision (3)b of this section. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

As to assessment of cost of water and sewer extensions upon lots or parcels of land abutting directly on lateral mains of water and sewer systems pursuant to former G.S. 160-241 to 160-248 and G.S. 160-255, see In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

Remedy for Failure to Implement Plan. - After an area is annexed, if the residents find that the city is not providing them with water and sewer services, they may petition the court for a writ of mandamus requiring the city to provide such services. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

Timetables for Extending Water Mains and Sewer Lines. - Since the city included in the annexation report its plans and timetables for extending the water mains and the sewer lines to the area proposed for annexation, it met the requirements of subdivisions (3)b and (3)c of this section even though no plan or associated timetables had been identified for the water supply. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

Failure to Show Extension Was a Major Water Main. - Where the plaintiffs offered no evidence from which the trial court or appellate court could ascertain in this instance that the twelve-inch water extension was a "major water main," and the policy requiring these petitioners to pay for the cost of water line extensions to their property was consistent with the policy of water line extensions within the pre-existing municipal limits, the trial court was not in error in concluding the town had substantially complied with all the relevant provisions of this section. Wallace v. Town of Chapel Hill, 93 N.C. App. 422, 378 S.E.2d 225 (1989).

Annexation Denied Because Plan Did Not Provide Statutorily Required Sewer Service. - Trial court's judgment upholding an ordinance which the City of Asheville (North Carolina) passed to annex property was reversed because the court failed to recognize that the city's plan for providing services to the area it proposed to annex did not provide statutorily required sewer service. Briggs v. City of Asheville, 159 N.C. App. 558, 583 S.E.2d 733, cert. denied, 357 N.C. 657, 589 S.E.2d 886 (2003), cert. dismissed sub nom., 357 N.C. 657, 589 S.E.2d 887 (2003).

Remand When Protections of Section not Honored. - Where petitioners show that the degree of noncompliance with statutory requirements for annexation is so great as to eviscerate the protections provided in G.S. 160A-47, a trial court does not err in declaring an ordinance null and void. However, in order for a trial court to properly declare an ordinance null and void under G.S. 160A-50(g)(4), it must specifically find that "the ordinance cannot be corrected by remand" as opposed to finding that "the ordinance is not likely to be corrected on remand." Because the trial court failed to make the appropriate finding, perhaps acting under a misapprehension of applicable law, the matter was remanded to the trial court for appropriate findings to support one of the statutory grounds under G.S. 160A-50(g). Fix v. City of Eden, 175 N.C. App. 1, 622 S.E.2d 647 (2005).

Duties under Section. - The requirements of G.S. 160A-47 are that plans for extension to the area to be annexed of all major municipal services performed within the municipality at the time of annexation is a condition precedent to annexation. The minimum requirements of G.S. 160A-47 are that the city provide information which is necessary to allow the public and the courts to determine whether the municipality has committed itself to provide a nondiscriminatory level of service and to allow a reviewing court to determine after the fact whether the municipality has timely provided such services. A city need only substantially comply with G.S. 160A-47. A city is required to provide major municipal services under G.S. 160A-47, and its performance of that duty may not be made to depend upon a doubtful contingency. Fix v. City of Eden, 175 N.C. App. 1, 622 S.E.2d 647 (2005).

City's annexation report was appropriate to the extent which it complied with G.S. 160A-47 regarding the sewer service installation fee. Capps v. City of Kinston, 215 N.C. App. 110, 715 S.E.2d 520, review denied, 365 N.C. 362, 719 S.E.2d 22, 2011 N.C. LEXIS 964 (2011).

IV. METHOD OF FINANCING.

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Subdivision (3)d requires only that the method of financing be disclosed, not that the precise source of each dollar be pinpointed. In re Annexation Ordinance No. 300-X, 304 N.C. 549, 284 S.E.2d 470 (1981).

Use of Federal Funds to Finance Extension of Services. - Although a city's proposals with reference to the financing of the extension of services into the area to be annexed contemplated the use of certain federal funds in connection with such financing, the method set forth in plans to finance extension of the services into the areas to be annexed constituted compliance with subdivision (3)d. Dunn v. City of Charlotte, 284 N.C. 542, 201 S.E.2d 873 (1974).

Budgeting of Funds at Time of Trial Held Unnecessary. - Since subdivision (3) of this section requires only that the annexing city file a statement showing how it will provide and finance municipal services to the annexed area, and since there is no requirement that available services be duplicated, the City of Goldsboro, in annexing a federal air force base, was not required to have funds budgeted at the time of trial to provide municipal services to the base in the event the federal government ceased providing those services, where the plan of annexation was based upon sound estimates of anticipated expenditures and revenues. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978).

Sufficiency of Annexation Report. - City provided a sufficient statement in an annexation report showing the financial impact of an annexation as required by G.S. 160A-47(5). Capps v. City of Kinston, 215 N.C. App. 110, 715 S.E.2d 520, review denied, 365 N.C. 362, 719 S.E.2d 22, 2011 N.C. LEXIS 964 (2011).


§ 160A-58.54. Character of area to be annexed.

  1. A municipal governing board may extend the municipal corporate limits to include any area that meets all of the following criteria:
    1. It shall be adjacent or contiguous to the municipality's boundaries at the time the annexation proceeding is begun, except if the entire territory of a county water and sewer district created under G.S. 162A-86(b1) is being annexed, the annexation shall also include any noncontiguous pieces of the district as long as the part of the district with the greatest land area is adjacent or contiguous to the municipality's boundaries at the time the annexation proceeding is begun.
    2. At least one-eighth of the aggregate external boundaries of the area shall coincide with the municipal boundary.
    3. No part of the area shall be included within the boundary of another incorporated municipality.
    4. The total area to be annexed shall meet the requirements of any of the following:
      1. Part or all of the area to be annexed must be developed for urban purposes at the time of approval of the report provided for in G.S. 160A-58.53. The area of streets and street rights-of-way shall not be used to determine total acreage under this subdivision. An area developed for urban purposes is defined as any area which meets any one of the following standards:
        1. Has a total resident population equal to at least two and three-tenths persons for each acre of land included within its boundaries.
        2. Has a total resident population equal to at least one person for each acre of land included within its boundaries, and is subdivided into lots and tracts such that at least sixty percent (60%) of the total acreage consists of lots and tracts three acres or less in size and such that at least sixty-five percent (65%) of the total number of lots and tracts are one acre or less in size.
        3. Is so developed that at least sixty percent (60%) of the total number of lots and tracts in the area at the time of annexation are used for residential, commercial, industrial, institutional, or governmental purposes, and is subdivided into lots and tracts such that at least sixty percent (60%) of the total acreage, not counting the acreage used at the time of annexation for commercial, industrial, governmental, or institutional purposes, consists of lots and tracts three acres or less in size.
        4. Is the entire area of any county water and sewer district created under G.S. 162A-86(b1), if all of the following apply:
          1. The municipality has provided in a contract with that district that the area is developed for urban purposes.
          2. The contract provides for the municipality to operate the sewer system of that county water and sewer district.
          3. The municipality is annexing in one ordinance the entire territory of the district not already within the corporate limits of a municipality.
        5. Is so developed that, at the time of the approval of the annexation report, all tracts in the area to be annexed are used for commercial, industrial, governmental, or institutional purposes.
      2. Part or all of the area to be annexed meets either of the following:
        1. Lies between the municipal boundary and an area developed for urban purposes so that the area developed for urban purposes is either not adjacent to the municipal boundary or cannot be served by the municipality without extending major municipal services, including water or sewer lines, through such sparsely developed area.
        2. Is adjacent, on at least sixty percent (60%) of its external boundary, to any combination of the municipal boundary and the boundary of an area or areas developed for urban purposes as defined in sub-subdivision a. of this subsection.
      3. The total area to be annexed is completely surrounded by the municipality's primary corporate limits.
  2. In fixing new municipal boundaries and determining whether an area is developed for urban purposes, a municipal governing board shall comply with all the following:
    1. Use recorded property lines and streets as boundaries. Some or all of the boundaries of a county water and sewer district may also be used when the entire district is not already within the corporate limits of the municipality.
    2. Use whole parcels of property in that if any portion of that parcel is included, the entire parcel of real property as recorded in the deed transferring title shall be included.
    3. Not use a connecting corridor consisting solely of the length of a street or street right-of-way to establish contiguity.
    4. Not consider property in use for a commercial, industrial, institutional, or governmental purpose if the lot or tract is used only temporarily, occasionally, or on an incidental or insubstantial basis in relation to the size and character of the lot or tract.
    5. Include acreage actually occupied by buildings or other man-made structures together with all areas that are reasonably necessary and appurtenant to such facilities for purposes of parking, storage, ingress and egress, utilities, buffering, and other ancillary services and facilities when determining acreage in use for commercial, industrial, institutional, or governmental purposes.
    6. Consider the area of an abolished water and sewer district to be a water and sewer district for the purpose of this section even after its abolition under G.S. 162A-87.2(b).
  3. As used in this subsection, "bona fide farm purposes" is as described in G.S. 153A-340. As used in this subsection, "property" means a single tract of property or an identifiable portion of a single tract. Property that is being used for bona fide farm purposes on the date of the resolution of intent to consider annexation may not be annexed without the written consent of the owner or owners of the property.

The purpose of paragraphs 1. and 2. of this sub-subdivision is to permit municipal governing boards to extend corporate limits to include all nearby areas developed for urban purposes and where necessary to include areas which at the time of annexation are not yet developed for urban purposes but which constitute necessary land connections between the municipality and areas developed for urban purposes or between two or more areas developed for urban purposes.

History

(2011-396, s. 9; 2011-363, s. 3.1.)

Editor's Note. - Session Laws 2011-363, s. 3.1, which amended this section by adding subsection (c), effective July 27, 2011, and applicable to annexations of property used for bona fide farm purposes that were initiated by municipalities on or after that date or pending on that date, was contingent upon House Bill 845, 2011 Regular Session, becoming law. House Bill 845 was enacted as Session Laws 2011-396.

Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

CASE NOTES

I. IN GENERAL.

.

This section was not copied from the laws of other states, but is a result of a study and recommendations made by the Municipal Government Study Commission, which was established in accordance with Joint Resolution 51 of the General Assembly of 1957. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532, 135 S.E.2d 574 (1964).

This Section and § 160A-48 Compared. - The provisions of subsections (b), (c) and (e) of G.S. 106A-48 are virtually identical to their counterparts in subsections (b), (c) and (d) of this section. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

When Annexation Proper Generally. - The language of subsection (a) of this section makes it clear that a municipality may annex any area which meets the general standards of subsection (b) and the requirements of subsection (c). Greene v. Town of Valdese, 306 N.C. 79, 291 S.E.2d 630 (1982).

Particular Facts Control in Doubtful Cases. - When compliance with the statutory requirements is in doubt, the determination of whether an area is used for a purpose qualifying it for annexation will depend upon the particular facts of each case. Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240, cert. denied, 306 N.C. 559, 294 S.E.2d 371 (1982).

This section does not specify any particular method of calculation for determination of compliance with statutorily mandated requirements and the reasonableness of the method chosen is to be determined in light of the particular circumstances of the questioned annexation proceedings. Lowe v. Town of Mebane, 76 N.C. App. 239, 332 S.E.2d 739 (1985).

Contiguous Area and Coincidence of Boundary Requirements Held Met. - For case holding that where each of three portions included in proposed annexation area was contiguous to the existing town boundary, and, by using a railroad strip as a connector, were contiguous to each other, when viewed as an entire area, the area was contiguous to the boundaries of the town as they existed at the commencement of the annexation proceedings and that the required coincidence of boundaries existed, see Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, aff'd, 321 N.C. 589, 364 S.E.2d 139 (1988).

Reason for Providing for Judicial Review. - The difficulties of applying the standards of this section in extreme cases were the reason the Municipal Government Study Commission recommended a provision for court review, set out in G.S. 160A-38, to determine whether the agency making the decision made a reasonable decision in accord with statutory standards. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532, 135 S.E.2d 574 (1964).

The trial court's order affirming a town annexation ordinance had to be vacated where the court applied the material prejudice standard of review to the adequacy of maps contained in the town report as well as to the questions of solid waste collection and the financing of services instead of determining whether or not the town complied with this section in formulating and carrying out its annexation plan; procedural irregularities under G.S. 160A-37 are to be evaluated under a "material prejudice" standard, while violations of either G.S. 160A-35 or this section are to be viewed in light of compliance or lack thereof and, if necessary, result in appropriate amendment. Sonopress, Inc. v. Town of Weaverville, 139 N.C. App. 378, 533 S.E.2d 537 (2000).

Cited in In re Annexation Ordinance, 300 N.C. 337, 266 S.E.2d 661 (1980); Thrash v. City of Asheville, 95 N.C. App. 457, 383 S.E.2d 657 (1989); Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101, 493 S.E.2d 797 (1997); Arquilla v. City of Salisbury, 136 N.C. App. 24, 523 S.E.2d 155 (1999), cert. denied, 351 N.C. 350, 543 S.E.2d 122 (2000).

II. STANDARDS UNDER SUBSECTION (B).

Annexation of Area in Another Municipality Prohibited. - Any new or amended proceeding by a town correcting procedural irregularities would be an exercise in futility after the disputed area became a part of another city, because after that date any attempt by the town to annex the disputed area would be in violation of this statute, which prohibits the annexation of an area already included within the boundary of another incorporated municipality. Town of Hudson v. City of Lenoir, 279 N.C. 156, 181 S.E.2d 443 (1971).

Summary judgment was proper in case involving a determination of prior jurisdiction between two towns' competing resolutions of intent where one municipality had sought to involuntarily annex two acres within the boundaries of the other. Town of Spencer v. Town of E. Spencer, 351 N.C. 124, 522 S.E.2d 297 (1999).

Competing Resolutions of Intent and Priority Jurisdiction. - A resolution of intent to annex territory which includes any territory already within the boundaries of another municipality is void and will lose priority to an intervening and competing valid resolution of intent; the elements listed in this section are "essential elements" with regard to a "prior jurisdiction" determination. Town of Spencer v. Town of E. Spencer, 351 N.C. 124, 522 S.E.2d 297 (1999).

Territory which is contiguous solely to the "satellite corporate limits" fails to satisfy the requirement of subdivision (b)(1) of this section that the area to be annexed in an involuntary annexation proceeding be contiguous or adjacent to the municipal boundaries of the city which seeks annexation. Territory contiguous solely to "satellite corporate limits" is not eligible for annexation until such "satellite corporate limits" become "a part of the primary corporate limits." This occurs in accord with G.S. 160A-58.6 when, through annexation of intervening territory, the boundaries of the satellite area and those of the primary town area touch. Hawks v. Town of Valdese, 299 N.C. 1, 261 S.E.2d 90 (1980).

If a town wishes to annex involuntarily two unannexed areas on either side of the satellite area, it must first annex the area which abuts directly on both the primary corporate limits and the satellite corporate limits. Only after this intervening territory has been successfully annexed is the area which presently abuts solely on satellite corporate limits eligible for annexation. Hawks v. Town of Valdese, 299 N.C. 1, 261 S.E.2d 90 (1980).

Coincidence of Boundary Requirement. - In considering the coincidence of boundary requirement, the entire area proposed for annexation must be viewed as a whole, rather than as various component portions. Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599 (1987).

Purposes Underlying Subsection (b) Subverted. - Superior court properly remanded town's annexation ordinance for amendment of its proposed boundaries, where although the literal contiguity requirements of subsection (b) of this section and G.S. 160A-41(1) were apparently satisfied by the town's ordinance, the town's compliance with the literal requirements of these statutes resulted in the subversion of the purposes underlying subsection (b), since the town's intentional gerrymandering of the annexation boundary created isolated islands connected to the town by a single narrow corridor of land. Amick v. Town of Stallings, 95 N.C. App. 64, 382 S.E.2d 221 (1989).

When a town proposed to annex certain land, it did not comply with the purpose of the standards in G.S. 160A-36(b), to provide essential government services within compact borders, even though it technically complied with the one-eighth contiguity requirement of G.S. 160A-36(b)(2), because it sought to annex certain noncontiguous valuable property by connecting it to the town by a narrow strip of land, surrounded on either side by nonannexed property, thus creating the potential for confusion in the provision of emergency and other services, and this was an impermissible "shoestring" annexation. Hughes v. Town of Oak Island, 158 N.C. App. 175, 580 S.E.2d 704, aff'd, 357 N.C. 653, 588 S.E.2d 467 (2003).

III. TESTS UNDER SUBSECTION (C).

Tax Records and Land Use Maps Are Proper Basis for Use Calculations. - Tax records and land use maps have been approved as accepted methods designed to provide reasonably accurate results for calculating the land use requirements in G.S. 160A-36 for the annexation of property. Sonopress, Inc. v. Town of Weaverville, 149 N.C. App. 492, 562 S.E.2d 32, cert. denied, 355 N.C. 751, 565 S.E.2d 671 (2002).

For discussion as to history and scope of subsection (c), see Tar Landing Villas Owners' Ass'n v. Town of Atlantic Beach, 64 N.C. App. 239, 307 S.E.2d 181 (1983).

"Use" Test and "Subdivision" Test for Determining Availability for Annexation. - The General Assembly adopted a standard containing two tests for determining availability for annexation: (1) The use test, i.e., that not less than 60% of the lots and tracts in the area must be in actual use, other than for agriculture, and (2) the subdivision test, i.e., that not less than 60% of the acreage which is in residential use, if any, and is vacant must consist of lots and tracts of five acres or less in size. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532, 135 S.E.2d 574 (1964).

The criteria in subsection (c) are known as the "use" test and the "subdivision" text. Thompson v. City of Salisbury, 24 N.C. App. 616, 211 S.E.2d 856 (1975).

Subsection (c) contains two tests for determining the availability for annexation, the use test and the subdivision test. American Greetings Corp. v. Town of Alexander Mills, 128 N.C. App. 727, 497 S.E.2d 108 (1998).

Both Tests Must Be Complied With. - The fact that the General Assembly connected the two test clauses in subsection (c) of this section with the conjunctive "and," and the clear abuses and hardships which a literal application of the use test, if alone applied, would produce, leads to the conclusion that the legislative intent is that both tests be complied with. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532, 135 S.E.2d 574 (1964).

Both tests established by the General Assembly must be met in order for an area to meet the statutory standard. Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496.

Both the "use" test and the "subdivision" test must be met before an area can be classified as urban. Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240 (1982).

Application of Tests in Subsection (c). - The use and subdivision tests prescribed by subsection (c) of this section yield accurate results only if applied to a land area which encompasses only unannexed territory. This is so because these tests require a determination of the percentage of lots being used for "urban purposes" and the percentage of "total acreage" subdivided into lots of five acres or less. Such percentage figures will be skewed and inaccurate if not based on data from all the acreage and lots encompassed by the land area under consideration. Hawks v. Town of Valdese, 299 N.C. 1, 261 S.E.2d 90 (1980).

Application of Both Tests May Cause Absurd Results in Extreme Cases. - Literal insistence upon the application of both tests in subsection (c) might in some extreme and improbable circumstances bring about absurd results adverse to municipalities. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532, 135 S.E.2d 574 (1964).

When applying the subdivision test the central inquiry is the degree of actual urbanization of the proposed area. American Greetings Corp. v. Town of Alexander Mills, 128 N.C. App. 727, 497 S.E.2d 108 (1998).

Determining What Is a "Lot". - There are several methods which can be used in determining what is a lot in making an appraisal of an area to be annexed. One is to count each numbered lot separately. Another is to consider a landlocked lot as part of the lot in front of it and group the two lots, i.e., the landlocked lot and the one providing it with access to a street, as being a single lot. A third method would be to consider a group of lots in single ownership and used for a single purpose as being a tract within the meaning of the statute, and count tracts rather than lots. Any one of these methods would be "calculated to provide reasonably accurate results," as required by G.S. 160A-42. Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496 (1969).

Property owners did not show that a town was unreasonable in relying upon an actual survey, as allowed by G.S. 160A-36; thus, the reviewing court did not err in concluding that one property consisted of two separate lots for the purposes of the subdivision test. Hayes v. Town of Fairmont, 167 N.C. App. 522, 605 S.E.2d 717 (2004), cert. denied, 359 N.C. 410, 612 S.E.2d 320 (2005).

The word "lot " in subsection (c) includes the concept of a condominium unit. Tar Landing Villas Owners' Ass'n v. Town of Atlantic Beach, 64 N.C. App. 239, 307 S.E.2d 181 (1983).

Landlocked Lot and Fronting Lot as Single Lot. - It is not unreasonable and beyond the statutory definition to classify a landlocked lot and its fronting lot in single ownership as a single lot in residential use, where only the fronting lot contains "a habitable dwelling unit." Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496 (1969).

Lots in Single Ownership Used for Common Purpose May Be Considered Single Tract. - In appraising an area to be annexed, one of the methods which can be used to determine what is a tract is to consider several lots in single ownership used for a common purpose as being a single tract; these consolidated lots can then be used to determine the percentage of tracts used for urban purposes. Lowe v. Town of Mebane, 76 N.C. App. 239, 332 S.E.2d 739 (1985).

"Use " means "to put into service" under subsection (c). Southern Ry. v. Hook, 261 N.C. 517, 135 S.E.2d 562 (1964).

Tract Held for Future Development Not "Used". - Where about a tenth of a tract of land, marked off by a bumper strip or barrier, was used for parking, and the rest of the tract was graded and held by the owner for possible future industrial development, the vacant part of the tract was not "used " for industrial purposes within the purview of subsection (c). Southern Ry. v. Hook, 261 N.C. 517, 135 S.E.2d 562 (1964).

As to classification of tract as being in industrial use, see Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496 (1969).

Industrial Classification Proper Where Area Is Actively So Used. - When an area is used for an active industrial purpose, the land is properly classified as in industrial use within the meaning of the annexation statute. Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240 (1982).

Industrial Classification Improper Absent Evidence of Such Use. - An area proposed for annexation is improperly classified as property in use for industrial purposes where there is no evidence that the land in question is being used either directly or indirectly for industrial purposes. Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240 (1982).

Transmission of electrical power over land by a power company is an industrial activity for an urban use. Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240.

Golf Course as Commercial Purpose. - Golf course, open to the public and operated for profit, is used for a commercial purpose within the meaning of subsection (c). Thompson v. City of Salisbury, 24 N.C. App. 616, 211 S.E.2d 856 (1975).

Classification of apartment complex as commercial rather than residential property was a reasonable method of complying with statutorily mandated requirements for the character of an area to be annexed; the general statutory intent is not to exclude areas of urbanized land from annexation on a technicality, but to provide municipalities with a flexible planning tool. Lowe v. Town of Mebane, 76 N.C. App. 239, 332 S.E.2d 739 (1985).

Annexation Ordinance Statement Held Insufficient for Lack of Specific Findings. - A statement in an annexation ordinance that the area to be annexed was in the process of being developed for urban purposes, that more than 60 percent of the area was in use for residential, commercial, industrial, governmental or institutional purposes, and that at least 60 percent of the total acreage, not counting the acreage so used, consisted of lots and tracts of five acres or less in size, did not meet the requirements of this section, as the statement was a mere conclusion and there were no specific findings nor any showing on the face of the record as to the method used by the municipality in making its calculations or as to the present use of any particular tract. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

Review as to Availability of Area. - If a municipality clearly complies with the standards of subsection (c) of this section, there is nothing to review with respect to the availability of an area proposed for annexation. Where compliance is in doubt, the determination must be made upon the facts in the particular case. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532, 135 S.E.2d 574 (1964).

Substantial Compliance with Statute Shown. - Trial court erred in concluding that the usage of disputed acres affected the classification of a golf course tract as a whole when the golf course was annexed by a town ordinance, because the golf course tract was properly designated as commercial by the town in its original calculations, and the entire acreage should have been included as commercial acreage for purposes of calculations under the use test; based on the new calculations, the annexation area met the 60 percent minimum required under the subdivision test of G.S. 160A-36(c)(1), and, given that the town substantially complied with the provisions of G.S. 160A-36, the ordinance was properly affirmed without amendment pursuant to G.S. 160A-38. Hayes v. Town of Fairmont, 167 N.C. App. 522, 605 S.E.2d 717 (2004), cert. denied, 359 N.C. 410, 612 S.E.2d 320 (2005).

Village essentially complied with the requirements of G.S. 160A-36 because (1) the village's use and reliance on the then-existing recorded deed and plat, both of which were consistent with the actual description of a one-acre tract of property, complied with the mandates of G.S. 160A-36(d); (2) the recorded line that the village used from a voluntarily-annexed tract was already part of the pre-existing municipal boundary; as such, the line did not constitute a new municipal boundary within the meaning of the statute; (3) the village correctly classified the a tract of land for purposes of G.S. 160A-36(c)(1)'s subdivision test; (4) the village used methods calculated to provide reasonably accurate results to determine the degree of land subdivision; and (5) the village met the literal contiguity requirements in annexing an area. Norwood v. Village of Sugar Mt., 193 N.C. App. 293, 667 S.E.2d 524 (2008), review denied, review dismissed, as moot, 363 N.C. 582, 682 S.E.2d 386 (2009).

Statutory Requirements Not Met. - Where tract was not currently under active development; a plat was never recorded by either party and there was no evidence that the family intended to sell any portion of it, the tract was not sufficiently urbanized to satisfy the statutory requirements. American Greetings Corp. v. Town of Alexander Mills, 128 N.C. App. 727, 497 S.E.2d 108 (1998).

In order for a town to comply with the statutory requirements, there must exist some actual, minimum urbanization of the proposed annexation property. American Greetings Corp. v. Town of Alexander Mills, 128 N.C. App. 727, 497 S.E.2d 108 (1998).

When a town proposed to annex certain land, it did not comply with the subdivision test in G.S. 160A-36(c)(1), requiring that at least 60 percent of a proposed annexation site, not counting acreage used at the time of annexation for commercial, industrial, governmental, or industrial purposes, consist of lots and tracts three acres or less in size, because it designated certain acreage in the proposed annexation area as commercial, when, in fact, the commercial use of the acreage was only proposed, so the acreage was not being used at the time of the annexation for commercial purposes. Hughes v. Town of Oak Island, 158 N.C. App. 175, 580 S.E.2d 704, aff'd, 357 N.C. 653, 588 S.E.2d 467 (2003).

IV. BOUNDARIES.

Purpose of Subsection (d). - The legislative history of subsection (d) of this section suggests that the reason for its inclusion was the legislature's concern that the full range of municipal services be available to citizens in the annexed area. Recognizing that water and, particularly, sewer services are necessarily limited by natural drainage boundaries, the Municipal Government Study Commission, whose recommendations were followed in establishing the present annexation procedures, included topography as an important consideration to be incorporated into the new statutory scheme of annexation. In order to ensure consideration of such topographic features, subsection (d) was enacted specifically enumerating certain features which create natural drainage boundaries. Greene v. Town of Valdese, 306 N.C. 79, 291 S.E.2d 630 (1982).

Subsection (d) contains no mandatory standards or requirements for annexation. Greene v. Town of Valdese, 306 N.C. 79, 291 S.E.2d 630 (1982).

Requirements of Subsection (d) Not Intended to Defeat Otherwise Proper Annexation. - It was not the intent of the legislature to defeat the annexation of an area which was otherwise ripe for annexation because of the directory language contained in subsection (d) of this section. Greene v. Town of Valdese, 306 N.C. 79, 291 S.E.2d 630 (1982).

"Practical" as used in subsection (d) is defined as "that which is possible of reasonable performance." Greene v. Town of Valdese, 306 N.C. 79, 291 S.E.2d 630 (1982).

Tree lines do not constitute "natural topographic features" within the meaning of the requirement of subsection (d) of this section. Greene v. Town of Valdese, 306 N.C. 79, 291 S.E.2d 630 (1982).

No provision in subsection (d) prevents a municipality from using a street as a reference in setting the boundary lines of an area to be annexed. Rexham Corp. v. Town of Pineville, 26 N.C. App. 349, 216 S.E.2d 445 (1975).

Drawing boundary exactly five feet from and parallel to a street for its entire length did not violate subsection (d). Lowe v. Town of Mebane, 76 N.C. App. 239, 332 S.E.2d 739 (1985).

Splitting of Tracts Not Prohibited. - The statutory requirement contained in subsection (d) that a municipality use natural topographic features wherever practical in setting an annexation boundary does not demonstrate a legislative intent to prevent the splitting of tracts. Rexham Corp. v. Town of Pineville, 26 N.C. App. 349, 216 S.E.2d 445 (1975).

Proof of Noncompliance with Subsection (d). - In order to establish noncompliance with subsection (d) of this section, petitioners must show two things: (1) that the boundary of the annexed area does not follow natural topographic features, and (2) that it would have been practical for the boundary to follow such features. Greene v. Town of Valdese, 306 N.C. 79, 291 S.E.2d 630 (1982); Lowe v. Town of Mebane, 76 N.C. App. 239, 332 S.E.2d 739 (1985); Weeks v. Town of Coats, 121 N.C. App. 471, 466 S.E.2d 83 (1996).

Topographic Features Not Followed. - There was sufficient evidence to support the court's conclusion that the town did not attempt to follow topographic features in violation of G.S. 160A-36(d). Weeks v. Town of Coats, 121 N.C. App. 471, 466 S.E.2d 83 (1996).

.

Constitutionality. - See In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

The annexation statutes are not taxation statutes, nor are they retrospective taxation statutes. Little Red School House, Ltd. v. City of Greensboro, 71 N.C. App. 332, 322 S.E.2d 195 (1984), cert. denied and appeal dismissed, 313 N.C. 514, 329 S.E.2d 392 (1985).

Question whether area is ripe for annexation should be addressed under statutory criteria set up in this section. Moody v. Town of Carrboro, 301 N.C. 318, 271 S.E.2d 265 (1980), rehearing denied, 301 N.C. 728, 274 S.E.2d 230 (1981).

The entire area to be annexed must meet the requirements of subsection (b) of this section. In re Annexation Ordinance, 300 N.C. 337, 266 S.E.2d 661 (1980).

Cities with 5,000 or more people may annex an outlying urban area pursuant to subsection (c) of this section and the intervening undeveloped lands pursuant to subsection (d) so long as the entire area meets the requirements of subsection (b). In re Annexation Ordinance, 300 N.C. 337, 266 S.E.2d 661 (1980).

This Section and § 160A-36 Compared. - The provisions of subsections (b), (c) and (e) of this section are virtually identical to their counterparts in subsections (b), (c) and (d) of G.S. 160A-36. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

Character of areas which may properly be annexed (i) cannot be included within the boundary of another incorporated municipality, (ii) must be adjacent to the existing boundaries of the annexing municipality, (iii) must be developed for urban purposes or must connect an outlying area developed for urban purposes with the municipality and (iv) wherever practical should use topographic features as boundaries. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

When a city proposed the annexation of a certain area, it could combine lots in single ownership used for a common purpose into a single tract, which could then be used to determine the percentage of tracts in the area used for urban purposes, under G.S. 160A-48(c)(3), but it was impermissible for the city to combine lots being developed for commercial purposes into a single tract classified as commercial because the lots had to be used for a common purpose, and these lots were in the process of development rather than in commercial use. Ridgefield Props., L.L.C. v. City of Asheville, 159 N.C. App. 376, 583 S.E.2d 400 (2003), aff'd, 358 N.C. 216, 593 S.E.2d 584 (2004).

City proposing to annex certain land substantially complied with G.S. 160A-48 because land improperly classified as residential should have been classified as "non-urban," as the land met no qualifications to be classified as urban, making G.S. 160A-48(c) inapplicable, as was also true with certain other undeveloped land, and making the classification of this land under G.S. 160A-48(d) proper, which meant the land did not have to qualify under G.S. 160A-48(c), so the land was correctly excluded from calculations of land qualifying for annexation under G.S. 160A-48(c) and, as a result, the total land qualified for annexation under G.S. 160A-48(c)(3), applying the use/subdivision test. Arnold v. City of Asheville, 186 N.C. App. 542, 652 S.E.2d 40 (2007), review denied, 362 N.C. 354, 663 S.E.2d 312 (2008).

Each sub-area must be considered as a whole and must qualify under one of the urban purposes tests set forth in subsection (c). Wallace v. Town of Chapel Hill, 93 N.C. App. 422, 378 S.E.2d 225 (1989).

Tests as to Urban Development to Be Applied to Whole Annexation Area. - Not only must the entire annexation area meet the requirements of subsection (c)(1), but even more importantly, the tests to determine whether an area is developed for urban purposes must be applied to the annexation area as a whole. In re Annexation Ordinance, 284 N.C. 442, 202 S.E.2d 143 (1974); In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

The tests to determine whether an area is developed for urban purposes must be applied to the annexation area as a whole. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978).

Division into Sub-Areas or Study Areas Improper. - The urban area that a city seeks to qualify for annexation under one of the urban purposes tests set forth in subdivisions (c)(1) through (c)(3) of this section must be considered as a whole, i.e., as one area, and may not be divided into sub-areas or study areas. In re Annexation Ordinance, 300 N.C. 337, 266 S.E.2d 661 (1980).

Application of population credits. - City acted under a misapprehension of the law, and misapplied the statutory standard in subdivision (c)(1), in deciding that population credits should be applied only in the "study area" in which such credits were accumulated, rather than applied uniformly to the whole area to be annexed. In re Annexation Ordinance, 284 N.C. 442, 202 S.E.2d 143 (1974).

Alternative Standards in Subdivisions (c)(1) and (c)(2). - This section's requirement that the area to be annexed must be developed for urban purposes is satisfied if either the standard of subdivision (c)(1) or the standard of subdivision (c)(2) is met. It is not required that both standards be satisfied. In re Annexation Ordinance 301-X, 304 N.C. 565, 284 S.E.2d 475 (1981).

To perform the computations required by the "subdivision test" under subdivision (c)(2) of this section, two figures are needed: the total acreage and the subdivided acreage. In re Annexation Ordinance 301-X, 304 N.C. 565, 284 S.E.2d 475 (1981).

Use of Different Standards Upheld. - The trial court did not err in concluding the town complied with subsection (c) of this section in annexing three noncontiguous sub-areas using different standards for qualifying each of the three sub-areas as urban property. Wallace v. Town of Chapel Hill, 93 N.C. App. 422, 378 S.E.2d 225 (1989).

Applicability of Error Margins of G.S. 160A-54 to Calculations Under Subsection (c). - The five percent error margins allowed in subdivisions (2) and (3) of G.S. 160A-54 apply exclusively to calculations made by the municipality for purposes of establishing compliance with the population and subdivision tests contained within the alternative standards prescribed by subsection (c) of this section. Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980).

The language of G.S. 160A-54 is free from ambiguity and represents a legislative determination that margins of error should be allowed with respect to the calculations made by a municipality to establish compliance with the population and subdivision tests of subsection (c) of this section, but not with respect to the calculations made to establish compliance with the use test of subsection (c). Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980).

Counting "Total Resident Population". - A person is properly counted as a member of the "total resident population" under this section if such person would have been counted as an inhabitant of the proposed area of annexation under rules governing the last preceding decennial census. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978).

Finding of Domicile Not Required. - The annexing unit is not required to make a finding that a person is actually domiciled within the proposed area of annexation before counting that person for the purpose of making the population estimate required by this section. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978).

Military Personnel Properly Counted in Estimating Annexed Population. - In an annexation proceeding the military personnel on an air force base in the area to be annexed were properly counted in determining the population estimate required by this section, since in accordance with census practice dating back to 1790, persons enumerated in the 1970 census who lived on military bases as members of the armed forces were counted as residents of the states, counties, and minor civil divisions in which their installations were located. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978).

The purpose of subsection (d) is to permit municipal governing boards to extend corporate limits to include all nearby areas developed for urban purposes and, where necessary, to include areas which at the time of annexation are not yet developed for urban purposes but which constitute necessary land connections between the municipality and areas developed for urban purposes or between two or more areas developed for urban purposes. Wallace v. Town of Chapel Hill, 93 N.C. App. 422, 378 S.E.2d 225 (1989).

Annexation of Intervening Undeveloped Land under Subsection (d). - Where the area proposed to be annexed by a municipality, when considered as a whole, meets the requirements of subsections (b) and (c) of this section, the fact that a part of the area is an undeveloped tract which does not comply with the standards set out in the statute does not require that such part be excluded from annexation. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

The language of this section simply means that where a developed tract and an undeveloped tract are included in an area to be annexed, and the developed tract complies with subsection (c), but when the undeveloped tract is added, the area as a whole does not so comply, then the undeveloped tract must be excluded unless it complies with one of the requirements of subsection (d). In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

The requirement that the urban area that a city seeks to qualify for annexation be considered as a whole does not preclude annexation of intervening undeveloped land pursuant to subsection (d) of this section. In re Annexation Ordinance, 300 N.C. 337, 266 S.E.2d 661 (1980).

A city properly annexed land which was not developed for urban purposes, under G.S. 160A-48(d)(2), along with its annexation of land which was developed for urban purposes, even though the undeveloped land was not contiguous with the city's pre-annexation boundaries, because at least 60 percent of the land's external boundaries were contiguous with the developed land which was being annexed. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490 (2003).

Plain language of G.S. 160A-48(d)(2), regarding the annexation of areas not developed for urban used, included all possible combinations which made the following equation work: the amount of border which the non-urban area shared with the municipality combined with the amount of border that the non-urban area shared with an area or areas developed for urban purposes equaled 60 percent of the border of the non-urban area, and one workable combination existed where a non-urban area touched, on at least 60 percent of its external border, only an area or areas developed for urban purposes. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490 (2003).

Cities with 5,000 or more people could annex an outlying urban area pursuant to G.S. 160A-48(c) and the intervening undeveloped lands pursuant to G.S. 160A-48(d) so long as the entire area met the requirements of G.S. 160A-48(b). Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490 (2003).

Compliance with Subsection (d). - In defining areas not developed for urban purposes that nevertheless may be annexed, G.S. 160A-48(d)(2) clearly specifies a combination of two things, in "any" variation or quantities of these two entities: the municipal boundary and the boundary of the urban developed area. To totally exclude one entity from the equation fails to yield a true "combination." Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 597 S.E.2d 717 (2004).

Plain meaning of G.S. 160A-48(d)(2) states that there must be a "combination" of adjacency to a municipality and adjacency to areas developed for urban purposes in order for a city to annex land under § 160A-48(d). Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 597 S.E.2d 717 (2004).

Pursuant to G.S. 160A-48(d)(1) and (d)(2), a city could not annex a landowner's parcel of land, where the parcel was not developed for urban use and where the parcel was adjacent to areas developed for urban purposes but was not also adjacent to the city's boundary. Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 597 S.E.2d 717 (2004).

Sub-area under subsection (d) may consist entirely of tracts of five acres or less. Southern Glove Mfg. Co. v. City of Newton, 75 N.C. App. 574, 331 S.E.2d 180, cert. denied, 314 N.C. 669, 336 S.E.2d 401 (1985).

Two lots, 60 percent of external boundaries of which were contiguous to city limits or to a part of other land which the city proposed to annex, qualified as sub-areas under subsection (d)(2), although they allegedly did not constitute "necessary land connections," as mentioned in the unnumbered paragraph at the end of subsection (d). The unnumbered paragraph had to be read as describing the sub-areas specifically allowed by subsection (d). Southern Glove Mfg. Co. v. City of Newton, 75 N.C. App. 574, 331 S.E.2d 180, cert. denied, 314 N.C. 669, 336 S.E.2d 401 (1985).

In order to establish noncompliance with subsection (e) of this section, it must be shown: (1) that the boundary of the annexed area does not follow topographic features, and (2) that it would have been practical for the boundary to follow such features. In re City of Durham Annexation Ordinance Numbered 5991 for Area A, 69 N.C. App. 77, 316 S.E.2d 649, appeal dismissed and cert. denied, 312 N.C. 493, 322 S.E.2d 553 (1984).

Annexation of Water and Sewer District. - Even though a water and sewer district under Chapter 162A is termed a municipal corporation, a water and sewer district is a municipal corporation organized for a special purpose, which does not qualify as a municipal corporation for purposes of this Chapter. Thrash v. City of Asheville, 95 N.C. App. 457, 383 S.E.2d 657 (1989), rev'd on other grounds, 327 N.C. 251, 393 S.E.2d 842 (1990).

Annexation of Air Force Base. - A federal air force base was subject to annexation by the City of Goldsboro where the annexation was not for the sole purpose of generating revenue, and it did not interfere with federal jurisdiction. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978).

The annexation of a federal air force base by the City of Goldsboro did not create unconstitutional tax classes. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978).

Tract Classified as Residential Despite Growing of Grass Thereon for Cattle Feed. - A city could classify a 1.83 acre tract with a rented house located on it as one lot used for residential purposes, despite the fact that on two separate parts of the lot fescue and sudex grass was grown and a person living in the neighborhood had been allowed to mow this grass, bale it and feed it to his cows. Southern Glove Mfg. Co. v. City of Newton, 75 N.C. App. 574, 331 S.E.2d 180, cert. denied, 314 N.C. 669, 336 S.E.2d 401 (1985).

Record of annexation proceedings showed prima facie full compliance with requirements of this section as to the character of the area to be annexed. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

Discovery. - Judicial review of an annexation ordinance is a limited judicial review, with few similarities to ordinary civil actions which are initiated, tried and adjudicated in a different manner and for which the Rules of Civil Procedure were mostly devised. Nevertheless, since the court reviewing annexation proceedings is explicitly authorized to receive evidence as to the city's compliance with the various procedures prescribed, as to its annexation plan meeting the requisites of G.S. 160A-47, and as to the area involved being eligible for annexation under this section, in those instances where discovery may illuminate these issues that it is authorized under the Rules of Civil Procedure. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, cert. denied and appeal dismissed, 312 N.C. 492, 322 S.E.2d 553 (1984).

Commercial Classification Upheld. - Two parcels of six and over 41 acres were properly classified as commercial where the tracts had been consolidated for development and tax purposes, all but 19.75 acres had recently been developed as a commercial shopping center, and the remaining 19.75 acres, contiguous to the shopping center, had been cleared and graded, and indirectly served the shopping center as a dumping ground. Thrash v. City of Asheville, 95 N.C. App. 457, 383 S.E.2d 657 (1989), rev'd on other grounds, 327 N.C. 251, 393 S.E.2d 842 (1990).

Institutional Classification Upheld. - Tract of 5.92 acres owned by local school board was properly classified as being in institutional use, where the evidence tended to show that only because of the unusual circumstance that high school was in the process of relocating was property not used for agriculture class as it has been for most summers since 1973; since the property was consistently used for institutional purposes for about 13 years prior to the trial, the property's disuse was merely a brief hiatus which did not disqualify the property from being in urban use. Thrash v. City of Asheville, 95 N.C. App. 457, 383 S.E.2d 657 (1989), rev'd on other grounds, 327 N.C. 251, 393 S.E.2d 842 (1990).

Trial court properly classified property as industrial in use rather than as vacant; where the record supported the trial court's finding that a large part of its 17.7 acres consisted of a creek and that property owner pumped water from the creek for industrial use and also discharged effluent into the creek. Thrash v. City of Asheville, 95 N.C. App. 457, 383 S.E.2d 657 (1989), rev'd on other grounds, 327 N.C. 251, 393 S.E.2d 842 (1990).

Substantial Compliance with Subdivision (c)(3) Shown. - Petitioners/property owners failed to overcome the presumption that the City substantially complied with subdivision (c)(3) of this section when it moved to annex disputed areas; mobile homes used to meet the "urban purposes" percentage requirement were "constructed" on the lots pursuant to "residential purposes" defined by G.S. 160A-53(2), and the deletion of a condemned home, originally included as a "habitable" residence, did not affect the calculations or the city's compliance. Bali Co. v. City of Kings Mt., 134 N.C. App. 277, 517 S.E.2d 208 (1999).

It was error to include certain property among the acreage counted as subdivided and used for residential purposes under subdivision (c)(3) of this section where such classification did not reflect the factual characteristics of the property. Even though recorded plat indicated land was subdivided, the property had never been surveyed and divided on the ground, no lots had been sold, and no roads had been constructed and opened for traffic. Such land was not subdivided within the meaning of subdivision (c)(3) of this section. Thrash v. City of Asheville, 327 N.C. 251, 393 S.E.2d 842 (1990).

Collateral Estoppel Barred Reclassification of Land Previously Classified as "Vacant." - Original trial court decision that divided the landowner's property into commercial and "vacant" portions and the order that only the commercial portion be used on remand to determine compliance with G.S. 160A-48(c)(3) could not be construed as a license to attempt to re-classify the vacant acres. United States Cold Storage v. City of Lumberton, 156 N.C. App. 327, 576 S.E.2d 415 (2003).

Collateral estoppel applied where a second trial court decision permitted a city to reclassify a landowner's vacant acres for purposes of involuntary annexation because the original decision included an adjudication that the subject area was vacant. United States Cold Storage v. City of Lumberton, 156 N.C. App. 327, 576 S.E.2d 415 (2003).

Actual Minimum Urbanization Is An Essential Requirement of the Annexation Act. - "Sound urban development" does not mean a territory may be annexed whenever some documentation of record supports its assessment as urban; it means a territory may be annexed when its character reflects some actual minimum urbanization. Thrash v. City of Asheville, 327 N.C. 251, 393 S.E.2d 842 (1990).

Some actual, minimum urbanization of a proposed annexation area is required for annexation Shackelford v. City of Wilmington, 127 N.C. App. 449, 490 S.E.2d 578 (1997), aff'd, 349 N.C. 222, 505 S.E.2d 80 (1998).

When a city proposed to annex certain property, including certain lots which were being developed for commercial purposes, it was error to classify those lots as being used for a commercial purpose, for purposes of determining compliance with G.S. 160A-48(c)(3), because the property's actual use at the time of the city's service plan was the relevant consideration, rather than a proposed future use. Ridgefield Props., L.L.C. v. City of Asheville, 159 N.C. App. 376, 583 S.E.2d 400 (2003), aff'd, 358 N.C. 216, 593 S.E.2d 584 (2004).

Topographic Features Requirement. - In addressing the division between urban and non-urban areas, this section requires the use of topographic features to fix exterior boundaries of the municipality as annexed, but does not speak to interior boundaries. Bali Co. v. City of Kings Mt., 134 N.C. App. 277, 517 S.E.2d 208 (1999).

While this section does not provide "mandatory standards or requirements for annexation," the provision itself is mandatory in light of the N.C. Supreme Court's holding in Greene v. Town of Valdese, 306 N.C. 79, 291 S.E.2d 630 that a boundary "must" follow topographic features unless to do so would defeat the annexation. Arquilla v. City of Salisbury, 136 N.C. App. 24, 523 S.E.2d 155 (1999), cert. denied, 351 N.C. 350, 543 S.E.2d 122 (2000).

Landowners met their burden of showing that the boundary of an involuntarily annexed area failed to follow natural topographic features, and that it would have been practical for the boundary to follow such features. Arquilla v. City of Salisbury, 136 N.C. App. 24, 523 S.E.2d 155 (1999), cert. denied, 351 N.C. 350, 543 S.E.2d 122 (2000).

Micro Approach Calculations Meet Urbanization Test. - Town met the urbanization test for annexation, where the town used a "micro approach" whereby it determined the number of dwelling units in each census block within the area to be annexed, then determined the average family size therein, then multiplied the number of dwelling units in each census block by the average family size to calculate the estimated population of each block, and finally added the block numbers together to produce the population estimate. Williams v. Town of Kernersville, 129 N.C. App. 734, 500 S.E.2d 770, cert. denied, 349 N.C. 241, 516 S.E.2d 611 (1998).

Governmental Use. - Involuntary annexation was improper where there was insufficient evidence of governmental use on four disputed tracts; while the evidence supported a finding of common ownership, there was insufficient evidence that the lots served a common purpose, and the court, therefore, erred in relying on a plan of future development to classify the entire tract as under governmental use. Arquilla v. City of Salisbury, 136 N.C. App. 24, 523 S.E.2d 155 (1999), cert. denied, 351 N.C. 350, 543 S.E.2d 122 (2000).

Characterization of Property Held Proper. - Town could properly classify country club's property as being used for commercial or institutional purposes, even though much of the property was used as a golf course. Chapel Hill Country Club, Inc. v. Town of Chapel Hill, 97 N.C. App. 171, 388 S.E.2d 168 (1990).

When a power company asserted that certain parts of its land which a city proposed to annex were not developed for industrial use, and, thus, not subject to annexation, there was sufficient evidence from which the trial court could find each tract was used in support of the company's power plant, as there was testimony that two tracts were a buffer for a cooling pond, and that two other tracts were buffers for ash ponds on the property. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490 (2003).

In addition to topographic features, the statute explicitly permits the use of streets as boundaries. In order to establish non-compliance with subdivision (e) of this section, petitioners must show two things: (1) that the boundary of the annexed area does not follow topographic features, and (2) that it would have been practical for the boundary to follow such features. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

City Not Required to Extend Annexation to Areas in Conflict with Mandatory Statute Provisions. - The city was not required to extend the boundaries of the proposed annexation area to include ridge lines where to do so would have defeated the city's compliance with the other mandatory portions of the annexation statute. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

Shoestring Annexation Not Shown. - The area to be annexed by the town was not a prohibited ribbon, balloon or "shoestring" annexation, where the annexation area was a rectangle, with the easternmost side solidly abutted against the existing corporate limits. Williams v. Town of Kernersville, 129 N.C. App. 734, 500 S.E.2d 770, cert. denied, 349 N.C. 241, 516 S.E.2d 611 (1998).

Contiguity Requirement Met. - Town's annexation ordinance met the contiguity requirement of this subsection, where more than one-eighth of the area to be annexed coincided with the municipal boundary. Williams v. Town of Kernersville, 129 N.C. App. 734, 500 S.E.2d 770, cert. denied, 349 N.C. 241, 516 S.E.2d 611 (1998).

Annexation areas that were at least one-eighth contiguous with the municipal boundary and whose portions were connected by street right-of-way corridors, complied with the requirements of G.S. 160A-48(b). Anthony v. City of Shelby, 152 N.C. App. 144, 567 S.E.2d 222 (2002).

City's division of an annexation area into sub-areas did not result in the improper annexation of an "island" not contiguous with the city limits as of the date of the original resolution of intent, although the boundaries of the sub-area, if considered in isolation, rather than as a sub-part of the area originally identified and eventually annexed, were not contiguous with the city limits on the date of the initial resolution. U.S. Cold Storage, Inc. v. City of Lumberton, 170 N.C. App. 411, 612 S.E.2d 415 (2005).

Compliance with Subsection (e). - Sufficient evidence supported a finding that the city substantially complied with this section, where the city's Planning Director testified that the city first examined the area to be annexed for natural topographic features, and in the absence of such features, used a 200 foot setback requirement. Blackwell v. City of Reidsville, 129 N.C. App. 759, 502 S.E.2d 371, cert. denied, 349 N.C. 352, 517 S.E.2d 886 (1998).

City's setting of an annexation boundary parallel to a road within a mobile home park property did not comply with the requirements of G.S. 160A-48(e). Capps v. City of Kinston, 215 N.C. App. 110, 715 S.E.2d 520, review denied, 365 N.C. 362, 719 S.E.2d 22, 2011 N.C. LEXIS 964 (2011).

Classification of Condominium Common Areas. - Common areas belonging to people who owned condominium units is residential property, and must be recognized in the city's plan for providing services to the area the City proposed to annex to provide statutorily required sewer service. Briggs v. City of Asheville, 159 N.C. App. 558, 583 S.E.2d 733, cert. denied, 357 N.C. 657, 589 S.E.2d 886 (2003), cert. dismissed sub nom., 357 N.C. 657, 589 S.E.2d 887 (2003).

Section 160A-48(c)(3) contained two mandatory tests for determining the availability of an area for annexation: (1) the use test - that not less than 60 percent of the lots and tracts in the area had to be in actual use, other than for agriculture, and (2) the subdivision test - not less than 60 percent of the acreage which was in residential use, if any, and was vacant had to consist of lots and tracts of five (now three) acres or less in size. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490 (2003).

Acreage in use for an industrial purpose was excluded from the subdivision test of the availability of acreage for annexation. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490 (2003).

Purpose of G.S. 160A-48(d) was to permit municipal governing boards to extend corporate limits to include all nearby areas developed for urban purposes and where necessary to include areas which at the time of annexation were not yet developed for urban purposes but which constituted necessary land connections between the municipality and areas developed for urban purposes or between two or more areas developed for urban purposes, and for purposes of this subsection, "necessary land connection" meant an area that did not exceed 25 percent of the total area to be annexed. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490 (2003).

Judicial Review - Annexation ordinance could be challenged in a trial court on the basis that the provisions of G.S. 160A-48 had not been met, under G.S. 160A-50(f)(3), and judicial review of an annexation ordinance was limited to determining whether the annexation proceedings substantially complied with the requirements of the applicable annexation statute. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490 (2003).

Petitioners challenging a city's annexation ordinances failed to show the city misclassified the lots to be annexed or that the county tax maps it relied on were inaccurate. As petitioners offered no reliable evidence that the city's methodology was inaccurate and not calculated to provide reasonably accurate results, as required by G.S. 106A-54, the ordinances were properly deemed valid. Brown v. City of Winston-Salem, 176 N.C. App. 497, 626 S.E.2d 747 (2006).


§ 160A-58.55. Procedure for annexation.

  1. Resolution of Consideration. - Any municipal governing board desiring to annex territory under the provisions of this Part shall first pass a resolution of consideration identifying the area under consideration for annexation by either a metes and bounds description or a map. The resolution of consideration shall remain effective for two years after adoption and be filed with the municipal clerk. A new resolution of consideration adopted before expiration of the two-year period for a previously adopted resolution covering the same area shall relate back to the date of the previous resolution. Adoption of a resolution of consideration shall not confer prior jurisdiction over the area as to any other municipality.
  2. Notice of Resolution of Consideration. - A notice of the adoption of the resolution of consideration shall be published once a week for two successive weeks, with each publication being on the same day of the week, in a newspaper having general circulation in the municipality. The second publication shall be no more than 30 days following adoption of the resolution of consideration. The resolution of consideration shall contain a map or description of the area under consideration and a summary of the annexation process and time lines. A copy of the resolution of consideration shall be mailed within 30 days after the adoption of the resolution of consideration by first class mail to the property owners of real property located within the area under consideration for annexation as shown by the tax records of the county. If a proposed annexation extends across a county border into a county other that the county where the majority of the area of the existing municipality is located, a copy of the resolution of consideration shall be mailed within 30 days after the adoption of the resolution of consideration by first class mail to the clerk of the board of county commissioners of that county.
  3. Resolution of Intent. - At least one year after adoption of the resolution of consideration, the municipal governing body may adopt a resolution of intent of the municipality to proceed with the annexation of some or all of the area described in the resolution of consideration. The resolution of intent shall describe the boundaries of the area proposed for annexation, fix a date for a public informational meeting, fix a date for a public hearing on the question of annexation, and fix a date for the referendum on annexation. The date for the public informational meeting shall be not less than 45 days and not more than 55 days following passage of the resolution of intent. The date for the public hearing shall be not less than 130 days and not more than 150 days following passage of the resolution of intent. The date of the referendum on annexation shall be set for the next municipal general election that is more than 45 days from the date of the resolution of intent.
  4. Notice of Public Informational Meeting, Public Hearing, and Opportunity for Water and Sewer. - A combined notice of public informational meeting and public hearing shall be issued as provided for in this subsection as follows:
    1. The notice shall be a combined notice that includes at least all of the following:
      1. The date, hour, and place of the public informational meeting.
      2. The date, hour, and place of the public hearing.
      3. A clear description of the boundaries of the area under consideration, including a legible map of the area.
      4. A statement that the report required by G.S. 160A-58.53 will be available at the office of the municipal clerk.
      5. An explanation of a property owner's rights under this section.
      6. A summary of the annexation process with time lines.
      7. A summary of the opportunity to vote in the referendum and available statutory remedies appealing the annexation and the failure to provide services.
      8. Information on how to request to become a customer of the water and sewer service, all forms to request that service, and the consequences of opting in or opting out, as provided in G.S. 160A-58.56.
      9. A clear description of the distinction between the public informational meeting and the public hearing.
    2. The combined notice shall be given by publication of the information required by sub-subdivisions (1)a., b., and c. of this subsection and a statement regarding the availability of the information required by the remaining sub-subdivisions of subdivision (1) of this subsection in a newspaper having general circulation in the municipality once a week for at least two successive weeks prior to the date of the public informational meeting, with each publication being on the same day of the week. The date of the last publication shall be not more than 10 days preceding the date of the public informational meeting. In addition thereto, if the area proposed to be annexed lies in a county containing less than fifty percent (50%) of the land area of the municipality, the same publication shall be given in a newspaper having general circulation in the area of proposed annexation. If there is no such newspaper, the municipality shall post the notice in at least five public places within the municipality and at least five public places in the area to be annexed for 30 days prior to the date of public informational meeting.
    3. The combined notice, together with the information about requesting water and sewer service, shall be mailed within five business days of the passage of the resolution of intent by first class mail to the property owners of real property located within the area to be annexed as shown by the tax records of the county. The person or persons mailing such notices shall certify to the governing board that fact, and such certificate shall become a part of the public record of the annexation proceeding and shall be deemed conclusive in the absence of fraud. If a notice is returned to the municipality by the postal service by the tenth day before the informational meeting, a copy of the notice shall be sent by certified mail, return receipt requested, at least seven days before the informational meeting. Failure to comply with the mailing requirement of this subsection shall not invalidate the annexation unless it is shown that the requirements were not substantially complied with.
    4. If the governing board by resolution finds that the tax records are not adequate to identify the property owners within the area to be annexed after exercising reasonable efforts to locate the property owners, it may, in lieu of the mail procedure required by subdivision (3) of this subsection, post the notice at least 30 days prior to the date of the public informational meeting on all buildings, on such parcels, and in at least five other places within the area to be annexed as to those parcels where the property owner could not be so identified. In any case where notices are placed on property, the person placing the notice shall certify that fact to the governing board.
  5. Action Prior to Informational Meeting. - At least 30 days before the date of the public informational meeting, the municipal governing board shall do all of the following:
    1. Approve the report provided for in G.S. 160A-58.53.
    2. Prepare a summary of the approved report for public distribution.
    3. Post in the office of the clerk all of the following:
      1. The approved report provided for in G.S. 160A-58.53.
      2. The summary of the approved report.
      3. A legible map of the area to be annexed.
      4. The list of the property owners, and associated mailing addresses, in the area to be annexed that the municipality has identified and mailed notice.
      5. Information for property owners on how to request to become a customer of the water service or sewer service and all forms to request that service.
    4. If the municipality has a Web site, post on that Web site all of the information under this section together with any forms to apply for water and sewer service.
    5. Prepare a summary of the opportunity to vote in the referendum and available statutory remedies for appealing the annexation for public distribution.
  6. Public Informational Meeting. - At the public informational meeting, a representative of the municipality shall first make an explanation of the report required in G.S. 160A-58.53 and an explanation of the provision of major municipal services. The explanation of the provision of services shall include how to request water service or sewer service to individual lots, the average cost of a residential connection to the water and sewer system, and the opportunity for installation of a residential connection under G.S. 160A-58.56. A summary of the annexation process with time lines, a summary of opportunity to vote in the referendum and available statutory remedies for appealing the annexation, an explanation of the provision of services, and information for requesting water service or sewer service to individual lots and any forms to so request shall also be distributed at the public informational meeting. Following such explanation, all property owners and residents of the area proposed to be annexed as described in the notice of public informational meeting and hearing, and all residents of the municipality shall be given the opportunity to ask questions and receive answers regarding the proposed annexation.
  7. Public Hearing. - At the public hearing, a representative of the municipality shall first make an explanation of the report required in G.S. 160A-58.53. Following such explanation, all property owners and residents of the area proposed to be annexed as described in the notice of public informational meeting and hearing, and all residents of the municipality, shall be given an opportunity to be heard.
  8. The municipal governing board shall take into consideration facts presented at the public hearing and shall have authority to amend the report required by G.S. 160A-58.53 to make changes in the plans for serving the area proposed to be annexed so long as such changes meet the requirements of G.S. 160A-58.53. At any regular or special meeting held no sooner than the tenth day following the certification of the election held under G.S. 160A-58.64, the governing board shall have authority to adopt an ordinance, subject to subsection (i) of this section, extending the corporate limits of the municipality to include all, or part, of the area described in the notice of public hearing which the governing board has concluded should be annexed. The annexation ordinance shall:
    1. Contain specific findings showing that the area to be annexed meets the requirements of G.S. 160A-58.54.
    2. Describe the external boundaries of the area to be annexed by metes and bounds.
    3. Include a statement of the intent of the municipality to provide services to the area being annexed as set forth in the report required by G.S. 160A-58.53 and a time line for the provision of those services.
    4. Contain a specific finding that on the effective date of annexation, the municipality will have funds appropriated in sufficient amount to finance construction of any water and sewer lines stated in the report required by G.S. 160A-58.53 to extend the water and sewer services into the area to be annexed, or that on the effective date of annexation the municipality will have authority to issue bonds in an amount sufficient to finance such construction. If authority to issue such bonds shall be secured from the electorate of the municipality prior to the effective date of annexation, then the effective date of annexation shall be no earlier than the day following the statement of the successful result of the bond election.
    5. Fix the effective date for annexation as June 30 next following the adoption of the ordinance or the second June 30 following adoption of the ordinance, but not before the completion of the water and sewer request appeal periods are complete.
    6. Together, with the list of the property owners of parcels within the area described in the annexation ordinance to which a notice was mailed under subsection (d) of this section, be delivered within five business days to the tax assessor and the board of elections of the county in which a majority of the municipality lies.
    7. Repealed by Session Laws 2012-11, s. 2, effective July 1, 2012.
    8. If a public body has a Web site, conspicuously post notice of the referendum until after the certification of the election.
  9. Referendum Vote on Annexation Ordinance. - The procedures in G.S. 160A-58.64 shall apply to any annexation under this Part. The municipality shall reimburse the board or boards of elections the costs of the referendum required under G.S. 160A-58.64.
  10. Effect of Annexation Ordinance. - From and after the effective date of the annexation ordinance, the territory and its citizens and property shall be subject to all debts, laws, ordinances, and regulations in force in such municipality and shall be entitled to the same privileges and benefits as other parts of such municipality.
  11. Reserved.
  12. Reserved.
  13. Simultaneous Annexation Proceedings. - If a municipality is considering the annexation of two or more areas which are all adjacent to the municipal boundary but are not adjacent to one another, it may undertake simultaneous proceedings under authority of this Part for the annexation of such areas.
  14. Remedies for Failure to Provide Services. - If, not earlier than 30 days after the effective date of annexation and not later than 15 months from the effective date of annexation, any property owner in the annexed territory shall believe that the municipality has not followed through providing services as set forth in the report adopted under G.S. 160A-58.53 and subsection (e) of this section, the property owner may apply for a writ of mandamus. Relief may be granted by the judge of superior court if the municipality has not provided the services set forth in its plan submitted under the provisions of G.S. 160A-58.53(3)a. on substantially the same basis and in the same manner as such services were provided within the rest of the municipality prior to the effective date of annexation and those services are still being provided on substantially the same basis and in the same manner within the original corporate limits of the municipality. If a writ is issued, costs in the action, including reasonable attorneys' fees for such aggrieved property owner, shall be charged to the municipality.
  15. Reports to the Local Government Commission. - The municipality shall report to the Local Government Commission as follows:
    1. As to whether police protection, fire protection, solid waste services, and street maintenance services were provided in accordance with G.S. 160A-58.53(3)a., within 30 days after the effective date of the annexation. Such report shall be filed no more than 30 days following the expiration of the 30-day period. If the Local Government Commission determines that the municipality failed to deliver police protection, fire protection, solid waste services, or street maintenance services as provided for in G.S. 160A-58.53(3)a. within 30 days after the effective date of the annexation, the Local Government Commission shall notify the municipality that the municipality may not count any of the residents as part of the population of the municipality for the purpose of receiving any State, federal, or county dollars distributed based on population until all of the services are provided.
    2. As to whether the extension of water and sewer lines was completed within the time period specified in G.S. 160A-58.53(3), within six months after the effective date of the annexation ordinance, and again within three and one-half years of the effective date of the annexation ordinance or upon the completion of the installation, whichever occurs first. If the municipality failed to deliver either water or sewer services, or both, as provided for in G.S. 160A-58.53(3)b. within three and one-half years after the effective date of the annexation, the municipality shall stop any other annexations in progress and may not begin any other annexation until the water and sewer services are provided. The municipality shall adopt a resolution of consideration to begin again any annexation that is stopped due to this subdivision.

History

(2011-396, s. 9; 2012-11, s. 2.)

Editor's Note. - Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

Effect of Amendments. - Session Laws 2012-11, s. 2, effective July 1, 2012, in the second sentence of subsection (c), deleted "and" preceding "fix", inserted "annexation, and fix a date for the referendum on", and added the last sentence; in sub-subdivision (d)(1)g., inserted "the opportunity to vote in the referendum and", and deleted "for denying and" following "remedies"; rewrote subdivision (e)(5); in the fourth sentence of subsection (f) substituted "opportunity to vote in the referendum and available statutory remedies for" for "available statutory remedies for denying and"; in subsection (h), in the introductory paragraph, substituted "certification of the election held under G.S. 160A 58.64" for "public hearing and not later than 90 days following the public hearing", in subdivision (h)(5), deleted "and petition to deny and", deleted subdivision (h)(7), which read: "Be summarized, and sent in accordance with subsection (i) of this section, to the list of the property owners within the area described in the annexation ordinance to which a notice was mailed under subsection (d) of this section together with a blank petition form, preprinted with name and address of the property owner," and rewrote subdivision (h)(8); and rewrote subsection (i).

CASE NOTES

This section provides two different procedural methods for beginning the involuntary annexation process under G.S. 160A-33 to 160A-42 and former G.S. 160A-43 and 160A-44. A municipality may either pass a resolution of consideration one year prior to adopting its resolution of intent, or it may immediately adopt the resolution of intent and postpone the effective date of annexation for at least a year after the ordinance is passed. Town of Hazelwood v. Town of Waynesville, 83 N.C. App. 670, 351 S.E.2d 558, rev'd on other grounds, 320 N.C. 89, 357 S.E.2d 686 (1987).

The trial court's order affirming a town annexation ordinance had to be vacated where the court applied the material prejudice standard of review to the adequacy of maps contained in the town report as well as to the questions of solid waste collection and the financing of services instead of determining whether or not the town complied with this section in formulating and carrying out its annexation plan; procedural irregularities under this section are to be evaluated under a "material prejudice" standard, while violations of either G.S. 160A-35 or G.S. 160A-36 are to be viewed in light of compliance or lack thereof and, if necessary, result in appropriate amendment. Sonopress, Inc. v. Town of Weaverville, 139 N.C. App. 378, 533 S.E.2d 537 (2000).

Notice of Rescinded Ordinance Not Required. - There is no provision in this section or any other section in this chapter that would impose a duty on the town to give plaintiffs notice of the fact that the town had rescinded an earlier annexation ordinance. Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101, 493 S.E.2d 797 (1997).

Deliberate preference for voluntary annexation is incorporated into law. Town of Hazelwood v. Town of Waynesville, 320 N.C. 89, 357 S.E.2d 686, rehearing denied, 320 N.C. 639, 360 S.E.2d 106 (1987).

Resolution of intent is "first mandatory public procedural step" for purposes of the prior jurisdiction rule. Town of Hazelwood v. Town of Waynesville, 320 N.C. 89, 357 S.E.2d 686, rehearing denied, 320 N.C. 639, 360 S.E.2d 106 (1987).

The adoption of a resolution of intent is the critical date for determining whether a municipality utilizing involuntary annexation procedures has prior jurisdiction over the same territory being considered for voluntary annexation by a different municipality. Town of Hazelwood v. Town of Waynesville, 320 N.C. 89, 357 S.E.2d 686, rehearing denied, 320 N.C. 639, 360 S.E.2d 106 (1987).

Sections 160A-31(d), 160A-49(e) and subsection (e) of this section are in pari materia. Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979).

The legislature has empowered municipal governing boards to amend the report required by G.S. 160A-35, to accommodate changes in the plans for serving the area proposed to be annexed, so long as such changes meet the requirements of G.S. 160A-35. Gregory v. Town of Plymouth, 60 N.C. App. 431, 299 S.E.2d 232, cert. denied, 308 N.C. 544, 304 S.E.2d 237 (1983).

Subsection (e) contains no provision requiring a second public hearing before the annexation report may be amended; to hold that a public hearing is always necessary when an annexation report is amended would result in a proliferation of unnecessary hearings. Williams v. Town of Grifton, 22 N.C. App. 611, 207 S.E.2d 275 (1974).

There is no requirement in subsection (e) that a second public hearing be held on the report as amended. Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979).

There is no requirement that a second public hearing be held on an amended annexation proposal, when that amendment is adopted to achieve compliance with G.S. 160A-35, pursuant to the authority granted in subsection (e) of this section. Gregory v. Town of Plymouth, 60 N.C. App. 431, 299 S.E.2d 232, cert. denied, 308 N.C. 544, 304 S.E.2d 237 (1983).

Nor Any Provision as to Duration of Public Inspection of Amended Reports. - There is no requirement in subsection (e) that the amended report be available for public inspection for any particular amount of time before final action is taken on the annexation proposal. Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979).

Newly annexed territory is subject to municipal taxes levied for the fiscal year following the effective date of annexation under subsection (f) of this section. A taxpayer's right to recover taxes paid under protest for a fiscal year depends upon the date the annexation ordinance became effective under G.S. 160A-38(i). Adams-Millis Corp. v. Town of Kernersville, 281 N.C. 147, 187 S.E.2d 704 (1972), decided under this section as it stood before the 1975 amendment.

Effect of Appeal on Effective Date of Annexation for Tax Purposes. - Where an appeal from an annexation ordinance was pending in the Court of Appeals on the effective date of annexation specified in the ordinance, May 15, 1969, and the decision of the Court of Appeals was filed and certified in September, 1969, property within the area being annexed was not subject to municipal ad valorem taxes for the fiscal year beginning July 1, 1969, since (1) newly annexed territory is subject to municipal taxes levied for the fiscal year following the effective date of annexation, under subsection (f) of this section, and (2) under G.S. 160A-38(i), the appeal postponed the effective date of the ordinance until the date of the final judgment of the appellate court. Adams-Millis Corp. v. Town of Kernersville, 281 N.C. 147, 187 S.E.2d 704 (1972), decided under this section as it stood before the 1975 amendment.

Annexed Areas Need Not Be Contiguous to Each Other. - If the areas to be annexed meet the standards prescribed, it does not matter whether they be contiguous. Subsection (g) of this section simply alleviates the necessity for separate annexation proceedings where areas to be annexed are adjacent to the municipality but not adjacent to each other, and specifically provides that annexation procedures may be simultaneously instituted and carried forward. Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496, cert. denied, 275 N.C. 681 (1969).

But Contiguous Areas Are Not Excluded from Annexation. - Subsection (g) of this section is not interpreted to exclude annexation of areas contiguous to the municipality which are also contiguous to each other. Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496, cert. denied, 275 N.C. 681 (1969).

Fact that the metes and bounds description in a resolution of intent to annex failed to close because one small piece of property owned by a person who did not join the petition for review was not included within the resolution of intent was not fatal to the validity of the annexation ordinance, where the resolution of intent and the published notice of public hearing made full reference to a map, filed in the office of the clerk of the city, and available for public inspection of the area proposed to be annexed, and this map and a map published in the newspaper notice of the public hearing showed all the property proposed to be annexed. Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979).

Property Owner Not Materially Prejudiced by Illegible Map. - Although the public notice provided by town for public hearing on annexation and printed in newspaper included an illegible map, the property owner was not materially prejudiced, since the public notice adequately described the property at issue; further, the property owner was not materially prejudiced by the denial of its request for a postponement of the public hearing because it had ample notice of the proposed annexation and an opportunity to be heard. Sonopress, Inc. v. Town of Weaverville, 149 N.C. App. 492, 562 S.E.2d 32, cert. denied, 355 N.C. 751, 565 S.E.2d 671 (2002).

Where annexation is completed without being challenged in the manner prescribed by G.S. 160A-38, it becomes an accomplished fact, and the remedies of property owners and citizens within the annexed areas are those provided in subsection (h) of this section. Gaskill v. Costlow, 270 N.C. 686, 155 S.E.2d 148 (1967).

Remedy Where Municipality Has Not Carried Out Service Plans. - The statutory remedy for owners of property in annexed territory where the municipality has not followed through on its service plans adopted under the provisions of subdivision (3) of G.S. 160A-35 and subsection (e) of this section is by writ of mandamus. Safrit v. Costlow, 270 N.C. 680, 155 S.E.2d 252 (1967).

Time for Bringing Action for Mandamus. - The owner of property within territory annexed by a municipality may bring an action for mandamus after the expiration of one year from the effective date of annexation and prior to the expiration of 15 months from such date to compel the municipality to follow through on its plans for furnishing essential municipal services to the area annexed in accordance with the plans filed in the proceedings. Safrit v. Costlow, 270 N.C. 680, 155 S.E.2d 252 (1967).

Annexation ordinance and annexation report met the requirements of G.S. 160A-35 and this section. Williams v. Town of Grifton, 22 N.C. App. 611, 207 S.E.2d 275 (1974).

Town Not Required to Provide Service. - Language in annexation ordinances to the effect that since water service then provided to the annexed areas by plaintiff was comparable to that provided by the town, the town would not be required to appropriate funds to extend water and sewer lines to the annexed area was required by subdivision (e)(3) and G.S. 160A-35(3)b to insure that residents of the area to be annexed would have access to comparable water service; in no way did this serve as a promise to be rightfully relied upon that the town would not in the future construct its own water lines within the annexed area or that plaintiff had the exclusive right to furnish water service there. Carolina Water Serv., Inc. v. Town of Atlantic Beach, 121 N.C. App. 23, 464 S.E.2d 317 (1995).

New Public Hearing Not Required - Although town's annexation report failed to fully set forth the town's policies regarding sanitation services, the trial court did not have to order a new public hearing, but could remand the issue to the town to more fully and adequately set forth the town's policy, and the proposed extension of such services into the area of annexation; a municipal governing board has the authority to amend an annexation report to make changes in the plans for serving the area proposed to be annexed without another public hearing as long as the changes meet the statutory requirements and were part of the original notice of public hearing. Sonopress, Inc. v. Town of Weaverville, 149 N.C. App. 492, 562 S.E.2d 32, cert. denied, 355 N.C. 751, 565 S.E.2d 671 (2002).

Informational Meeting. - Land owners failed to demonstrate how they had suffered material injury as a result of a village's failure to answer one question at the informational meeting, the answer to which could have no effect on the validity of the proposed annexation, and the annexation was proper. Nolan v. Village of Marvin, 172 N.C. App. 84, 615 S.E.2d 898 (2005).

Annexation Proper. - Village essentially complied with the requirements of G.S. 160A-37 because, while it would have been impermissible for the village to annex property that it had not included in its original report, it was permitted to omit property described in its original report from the property it ultimately annexed, which was exactly what occurred. Norwood v. Village of Sugar Mt., 193 N.C. App. 293, 667 S.E.2d 524 (2008), review denied, review dismissed, as moot, 363 N.C. 582, 682 S.E.2d 386 (2009).

.

The annexation statutes are not taxation statutes, nor are they retrospective taxation statutes. Little Red School House, Ltd. v. City of Greensboro, 71 N.C. App. 332, 322 S.E.2d 195 (1984), cert. denied and appeal dismissed, 313 N.C. 514, 329 S.E.2d 392 (1985).

Challenges to annexations generally are not actionable under U.S. Const., Amend. XIV. Raintree Homeowners Ass'n v. City of Charlotte, 543 F. Supp. 625 (W.D.N.C. 1982), aff'd sub nom. Baldwin v. City of Winston-Salem, 710 F.2d 132 (4th Cir. 1983).

Absolute and literal compliance with this section is unnecessary; only substantial compliance is required. McKenzie v. City of High Point, 61 N.C. App. 393, 301 S.E.2d 129, cert. denied, 308 N.C. 544, 302 S.E.2d 885 (1983).

The respondent city was not required to file a new services plan under this section although the annexation area changed during subsequent revisions to the annexation ordinance, where the only significant change to the services plan was the scope of its coverage - the services for petitioners remained the same - and where the city was bound by the terms of the services plan as amended under principles of equitable estoppel. Bowers v. City of Thomasville, 143 N.C. App. 291, 547 S.E.2d 68, cert. denied, 353 N.C. 723, 550 S.E.2d 769 (2001).

Metes and Bounds Description. - Property descriptions in annexation ordinances were not metes and bounds descriptions, where the property descriptions did not include courses and distances but made reference to "lots" that were not identified in the property descriptions. Blackwell v. City of Reidsville, 129 N.C. App. 759, 502 S.E.2d 371, cert. denied, 349 N.C. 352, 517 S.E.2d 886 (1998).

Identification - Annexation resolution which identified the area under consideration for annexation as a certain township by the official mapping of the county fulfilled the requirement of G.S. 160A-49(i) to identify the area under consideration for annexation. Anthony v. City of Shelby, 152 N.C. App. 144, 567 S.E.2d 222 (2002).

Minimum requirements of the annexation statute are that the city provide information which is necessary to allow the public and the courts to determine whether the municipality has committed itself to provide a nondiscriminatory level of service and to allow a reviewing court to determine after the fact whether the municipality has timely provided such services. If such services are not provided, the residents of the annexed area would be entitled to a writ of mandamus requiring the municipality to live up to its commitments. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

Purpose of subsection (a), requiring resolution stating intent to consider annexation, is to record the town board's decision and to mark the formal beginning of the municipality's actions. This resolution expresses the intent of the governing board and it has little significance to the public. Kritzer v. Town of Southern Pines, 33 N.C. App. 152, 234 S.E.2d 648 (1977).

Subsection (a) does not specifically require a written resolution, nor is such requirement implicit in the fact that the resolution must describe the land under consideration. Kritzer v. Town of Southern Pines, 33 N.C. App. 152, 234 S.E.2d 648 (1977).

Form for Extension. - This section, which specifically describes the procedure of annexation and the information that is required to be provided to residents of an area to be annexed, does not require that the city furnish the form described in G.S. 160A-47 without a request. Barnhardt v. City of Kannapolis, 116 N.C. App. 215, 447 S.E.2d 471, cert. denied, 338 N.C. 514, 452 S.E.2d 807 (1994).

Reading Report at Public Hearing in Compliance with Subsection (d). - Reading report of proposed annexation in its entirety at a public hearing is a more detailed explanation of the report than a shorter summary explanation prepared by a representative of the municipality would have been. In this manner, those who attend the meeting are made aware of each and every provision and statement in the report and are then given an opportunity to be heard. This is sufficient compliance with the requirements of subsection (d) of this section. In re Annexation Ordinance, 300 N.C. 337, 266 S.E.2d 661 (1980).

The proper forum for attacking the accuracy of projected costs and other items in the report not required by statute is the hearing before the city council provided under this section. Parkwood Ass'n v. City of Durham, 124 N.C. App. 603, 478 S.E.2d 204 (1996).

Right of the general public to sufficient notice of proposed annexation is protected by subsections (b) and (e). Kritzer v. Town of Southern Pines, 33 N.C. App. 152, 234 S.E.2d 648 (1977).

The notice of the public hearing must be published in a newspaper, or by other means, and must contain a clear description of the land under consideration. Kritzer v. Town of Southern Pines, 33 N.C. App. 152, 234 S.E.2d 648 (1977).

Where materials delivered to the court did not include a certificate that notice of the public hearing was mailed to all the property owners in the affected area as required by subsection (b), but there was ample evidence that the notices were actually mailed and no contention that the property owners did not receive the mailed notices, this irregularity was so slight that it could not have prejudiced petitioner, and it did not require remand of the ordinance. Thrash v. City of Asheville, 115 N.C. App. 310, 444 S.E.2d 482 (1994).

Public Informational Meeting - City substantially complied with the requirement of G.S. 160A-49(c1) that property owners be given the opportunity to ask questions and receive answers regarding a proposed annexation, when the trial court found all persons attending a public informational meeting were given the opportunity to ask one or more questions to which city representatives responded. Anthony v. City of Shelby, 152 N.C. App. 144, 567 S.E.2d 222 (2002).

When a city proposing a certain annexation amended the annexation ordinance by excluding a certain parcel from the ordinance, no second public hearing was required, under G.S. 160A-49(e), because, with the only change to the ordinance being the deletion of one lot and no change in the subsections of G.S. 160A-48 under which the city sought annexation, there was no substantial change to the ordinance, necessitating notice. Arnold v. City of Asheville, 186 N.C. App. 542, 652 S.E.2d 40 (2007), review denied, 362 N.C. 354, 663 S.E.2d 312 (2008).

Extension of Fire and Police Service. - Although city did not need to provide the details of how it intended to extend fire and police service to the annexed area, the city did provide this information to petitioners at the hearing; further, if the city failed to provide the services as promised within the statutory time limits, petitioners could apply for a writ of mandamus. Parkwood Ass'n v. City of Durham, 124 N.C. App. 603, 478 S.E.2d 204 (1996).

By virtue of subsection (e), the governing board is prohibited from annexing any land except that described in the notice of the public hearing. Kritzer v. Town of Southern Pines, 33 N.C. App. 152, 234 S.E.2d 648 (1977).

Sections 160A-37(e), 160A-31(d) and subsection (e) of this section are in pari materia. Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979).

Remand Was Appropriate Remedy for Alleged Notice Irregularity. - Trial court did not err in refusing to declare an involuntary annexation ordinance null and void where, assuming arguendo that any alleged procedural irregularities pursuant to G.S. 160A-49(b)(3) had prejudiced a landowner, the remedy under G.S. 160A-50(g)(1) was a remand to the municipal governing board for further proceedings. United States Cold Storage v. City of Lumberton, 156 N.C. App. 327, 576 S.E.2d 415 (2003).

Extension of sewer lines and other services into the annexed area, pursuant to the plan of annexation, is not a condition precedent to annexation, the statutory remedy for failure to extend such services being an application, by a person owning property in the annexed territory, for a writ of mandamus to compel such performance of the plan. Dale v. City of Morganton, 270 N.C. 567, 155 S.E.2d 136 (1967).

In reviewing the procedure followed by a municipal governing board in an annexation proceeding, the question whether the municipality is then providing services pursuant to the plan of annexation is not before the court, and the extension of services into an annexed area in accordance with the promulgated plan is not a condition precedent to annexation. In re City of New Bern, 278 N.C. 641, 180 S.E.2d 851 (1971).

Time for Implementing Extension of Services. - It would appear from a reading of subsection (h) of this section that a city annexing territory has one year, and possibly 15 months, to implement its plan for extending services to an annexed area. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978).

Increase in Voters Through Annexation Requires Preclearance Under 42 U.S.C. § 1973c. - The increase in the number of voters in the municipality resulting from annexation is a charge of a voting qualification, prerequisite, standard, practice, or procedure requiring preclearance as contemplated by 42 U.S.C. § 1973c. Moore v. Swinson, 58 N.C. App. 714, 294 S.E.2d 381 (1982).

Elections Held Before Preclearance Under 42 U.S.C. § 1973c. - Until the city obtains clearance of its annexations in accordance with 42 U.S.C. § 1973c, all future elections must be conducted on the basis of the city boundaries as they existed before the unprecleared annexations were made, and citizens residing in such annexed areas may not participate in future municipal elections, either as electors or as candidates. This relief applies only to the right to vote and be a candidate. It does not, of course, constitute de-annexation, and it does not affect the rights of citizens residing in the annexed areas in any other way. Moore v. Swinson, 58 N.C. App. 714, 294 S.E.2d 381 (1982).

Persons in Annexed Areas May Be Denied Vote During 60-Day Approval Period. - Although those in annexed areas become citizens of the annexing jurisdiction upon annexation, under 42 U.S.C. § 1973c, it is proper to deny such persons the right to vote on a bond referendum held within 60 days of the annexation since that section gives the United States Attorney General 60 days within which to approve an annexation expanding the number of voters. 42 U.S.C. § 1973c was designed, in part, to enforce U.S. Const., Amend. XV, and it preempts all other provisions regarding the right to vote in such referenda. Moore v. Swinson, 58 N.C. App. 714, 294 S.E.2d 381 (1982).

Failure of Resolution of Intent to State Effective Date. - City's failure to state effective date of annexation in its resolution of intent was not an omission of an essential requirement of the statute but was only a "slight irregularity," which would not invalidate annexation proceedings if there has been substantial compliance with all essential elements of the law. City of Kannapolis v. City of Concord, 326 N.C. 512, 391 S.E.2d 493 (1990).

Subsection (g) - "Simultaneous Annexation Proceedings." - North Carolina annexation statutes do not permit municipality to annex by voluntary means tract of land that is contiguous with its municipal boundaries only by virtue of second tract of land being annexed simultaneously. City of Kannapolis v. City of Concord, 326 N.C. 512, 391 S.E.2d 493 (1990).

City Charter Superseded by State Statute. - Summary judgment was properly awarded to a city and its officials in an action by property owners challenging an annexation because, pursuant to G.S. 160A-3(c), the statutory provision establishing involuntary annexations, G.S. 160A-49, superseded a city charter provision permitting only voluntary annexations. Brown v. City of Winston-Salem, 171 N.C. App. 266, 614 S.E.2d 599 (2005).


§ 160A-58.56. Provision of water and sewer service.

  1. The municipality shall provide water and sewer service to the annexed area as required by plans for extension under G.S. 160A-58.53(3) within three and one-half years of the effective date of the annexation ordinance except as provided in subdivision (b)(4) of this section. If (i) the residents in the existing city boundaries are served by a public water or sewer system, or by a combination of a public water or sewer system and one or more nonprofit entities providing service by contract with the public system, (ii) the annexing municipality does not provide that service within the existing city boundaries, (iii) the area to be annexed is in an area served by the public water or sewer system, and (iv) the municipality has no responsibility through an agreement with the public water or sewer system to pay for the extension of lines to areas annexed to the city, the city shall have no financial responsibility for the extension of water and sewer lines under this section. For purposes of this provision, "public water or sewer system" means a water or sewer authority formed under Article 1 of Chapter 162A of the General Statutes; a metropolitan water or sewerage district formed under Article 4 or Article 5 of Chapter 162A of the General Statutes; a county water or sewer district formed under Article 6 of Chapter 162A of the General Statutes; a sanitary district formed under Article 2 of Chapter 130A of the General Statutes; a county-owned water or sewer system; a municipal-owned water or sewer system; a water or sewer utility created by an act of the General Assembly; or a joint agency providing a water or sewer system by interlocal agreement under Article 20 of Chapter 160A of the General Statutes.
  2. Prior to the adoption of the annexation ordinance, the municipality shall offer to each eligible property owner of real property located within the area proposed to be annexed an opportunity to obtain water or sewer service, or both, at no cost other than periodic user fees based upon usage as follows:
    1. After passage of the resolution of intent, the property owner of real property located within the area proposed to be annexed shall be notified in writing, as provided in G.S. 160A-58.55(d), within five business days of the passage of the resolution of intent, of the opportunity to have water and sewer lines and connections installed at no cost to the property owner. The notice shall state that a request for extending water and sewer lines does not waive the right to contest the annexation. The property owners of real property located within the area proposed to be annexed shall be allowed 65 days from the date of the passage of the resolution of intent to respond yes or no to the opportunity. Any property owner of a parcel that is an existing customer of the municipality's water or sewer, whether provided by the municipality or by a third party under contract with the municipality, shall be deemed to respond yes to the opportunity, whether or not the property owner returns the notification.
    2. At the close of the 65-day period, the municipality shall determine if the eligible property owners of a majority of the parcels to be annexed have responded favorably. A majority of the property owners of a single parcel of real property must respond favorably before the municipality may count that parcel of real property as responding favorably.
    3. If the property owners of a majority of the parcels located within the area proposed to be annexed respond favorably, the municipality shall do all of the following:
      1. Provide water and sewer lines, service lines, and connections at no cost other than periodic user fees to all real property for which an owner responded favorably if the annexation ordinance is adopted. The right to receive water and sewer lines shall run with the land.
      2. Notify, within five days of the close of the 65-day period under subdivision (2) of this subsection, those property owners of real property located within the area proposed to be annexed who failed to respond or responded negatively that the property owners of a majority of the parcels located within the area proposed to be annexed responded favorably and offer a second opportunity for that property owner to respond favorably within 30 days.
    4. If the property owners of a majority of the parcels located within the area proposed to be annexed fail to respond favorably to the offer to obtain water and sewer services made under this section, the municipality may nevertheless proceed with the annexation. If the municipality proceeds with the annexation when the property owners of a majority of the parcels located within the area proposed to be annexed fail to respond favorably to the offer to obtain water and sewer services, the municipality is not required to provide water and sewer services to any property owners in the area that is annexed. If the municipality does provide water and sewer services, and if a property owner requests those services, the municipality may charge the property owner for the connection to a residential lot as provided in subsection (d) of this section during the first five years following the effective date of the annexation. After five years, and only if connection is requested by a property owner in accordance with subsection (e) of this section, the municipality may charge for the connection according to the municipality's policy.
  3. The process required by subsection (b) of this section shall be completed by the municipality at least 30 days prior to the public hearing. The report required by G.S. 160A-58.53 shall include the results of the process required by subsection (b) of this section.
  4. Any property owner of the real property located within the area described in the annexation ordinance may apply to participate in the water and sewer system after the completion of the process required by subsection (b) of this section. For a property owner of real property located within the area described in the annexation ordinance applying within the first year, that property owner may be charged an amount not to exceed fifty percent (50%) of average cost of the installation of the water and sewer for a residential lot. For a property owner of real property located within the area described in the annexation ordinance applying within the second year, that property owner may be charged an amount not to exceed sixty percent (60%) of average cost of the installation of the water and sewer for a residential lot. For a property owner of real property located within the area described in the annexation ordinance applying within the third year, that property owner may be charged an amount not to exceed seventy percent (70%) of average cost of the installation of the water and sewer for a residential lot. For a property owner of real property located within the area described in the annexation ordinance applying within the fourth year, that property owner may be charged an amount not to exceed eighty percent (80%) of average cost of the installation of the water and sewer for a residential lot. For a property owner of real property located within the area described in the annexation ordinance applying within the fifth year, that property owner may be charged an amount not to exceed ninety percent (90%) of average cost of the installation of the water and sewer for a residential lot. Charges pursuant to this section shall be made when the water and sewer connection is operable.
  5. Notwithstanding Article 16 of this Chapter, the municipality may not charge, for any reason, any property owner within the area described in the annexation ordinance, for the installation or use of the water or sewer system unless that property owner is, or has requested to become, a customer of the water or sewer system.
  6. The initial installation of water or sewer connection lines to property shall be completed without charge to the property owner. Title to water or sewer connection lines shall vest in the property owner following completion of the initial installation. The property owner shall be responsible for maintenance and repair of water and sewer connection lines on the owner's property following the initial installation.
  7. If the municipality is unable to provide water or sewer service within three and one-half years, as required by this section, due to permitting delays that are caused through no fault of the municipality, the municipality may petition the Local Government Commission for a reasonable time extension.
  8. For purposes of this section, the following definitions apply:
    1. "At no cost other than periodic user fees." - The municipality may not charge the property owner who responded favorably under subdivision (b)(3) of this section for any costs associated with the installation of the water or sewer system. The municipality may not charge a property owner who applies to participate in the water and sewer system under subsection (d) of this section prior to the first periodic user fee charge, and on that bill the owner may be charged no more then as provided in subsection (d) of this section.
    2. "Average installation of a connection for a residential lot." - The average of the cost for residential installations from curb to residence, including connection and tap fees, in the area described in the annexation ordinance.

History

(2011-396, s. 9.)

Editor's Note. - Subsections (e1) through (f), as enacted by 2011-396, s. 9, were redesignated (f) through (h) at the direction of the Revisor of Statutes.

Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."


§ 160A-58.57. Contract with rural fire department.

  1. If the area to be annexed described in a resolution of intent passed under G.S. 160A-58.55(c) includes an area in an insurance district defined under G.S. 153A-233, a rural fire protection district under Article 3A of Chapter 69 of the General Statutes, or a fire service district under Article 16 of Chapter 153A of the General Statutes, and a rural fire department was on the date of adoption of the resolution of intent providing fire protection in the area to be annexed, then the city (if the rural fire department makes a written request for a good faith offer, and the request is signed by the chief officer of the fire department and delivered to the city clerk no later than 15 days before the public hearing) is required to make a good faith effort to negotiate a five-year contract with the rural fire department to provide fire protection in the area to be annexed.
  2. If the area is a rural fire protection district or a fire service district, then an offer to pay annually for the term of the contract the amount of money that the tax rate in the district in effect on the date of adoption of the resolution of intent would generate based on property values on January 1 of each year in the area to be annexed which is in such a district is deemed to be a good faith offer of consideration for the contract.
  3. If the area is an insurance district but not a rural fire protection district or fire service district, then an offer to pay annually over the term of the contract the amount of money which is determined to be the equivalent of the amount which would be generated by multiplying the fraction of the city's general fund budget in that current fiscal year which is proposed to be expended for fire protection times the tax rate for the city in the current year, and multiplying that result by the property valuation in the area to be annexed which is served by the rural fire department is deemed to be a good faith offer of consideration for the contract; Provided that the payment shall not exceed the equivalent of fifteen cents (15›) on one hundred dollars ($100.00) valuation of annexed property in the district according to county valuations for the current fiscal year.
  4. Any offer by a city to a rural fire department which would compensate the rural fire department for revenue loss directly attributable to the annexation by paying such amount annually for five years, is deemed to be a good faith offer of consideration for the contract.
  5. Under subsections (b), (c), or (d) of this section, if the good faith offer is for first responder service, an offer of one-half the calculated amount under those subsections is deemed to be a good faith offer.
  6. This section does not obligate the city or rural fire department to enter into any contract.
  7. The rural fire department may, if it feels that no good faith offer has been made, appeal to the Local Government Commission within 30 days following the passage of an annexation ordinance. The rural fire department may apply to the Local Government Commission for an order staying the operation of the annexation ordinance pending the outcome of the review. The Commission may grant or deny the stay in its discretion upon such terms as it deems proper, and it may permit annexation of any part of the area described in the ordinance concerning which no question for review has been raised, provided that no other appeal under G.S. 160A-58.60 is pending.
  8. The Local Government Commission may affirm the ordinance, or if the Local Government Commission finds that no good faith offer has been made, it shall remand the ordinance to the municipal governing board for further proceedings, and the ordinance shall then not become effective unless the Local Government Commission finds that a good faith offer has been made.
  9. Any party to the review under subsection (h) may obtain judicial review in accordance with Chapter 150B of the General Statutes.

History

(1983, c. 636, s. 21; 1987, c. 827, s. 1; 2011-396, ss. 2, 9.)

Cross References. - As to effective date of annexation ordinances adopted under Article 4A of Chapter 160A, see G.S. 160A-58.9A.

Editor's Note. - This section was formerly G.S. 160A-49.1. It was recodified as G.S. 160A-58.57 by Session Laws 2011-396, s. 2, effective July 1, 2011.

Session Laws 1983, c. 636, which amended this section, in s. 37.1, as amended by Session Laws 1983, c. 768, s. 25, provided: "The General Assembly intends by this act to repeal all acts and provisions of acts that modify the application to particular cities and towns of Parts 2 and 3 of Article 4A of Chapter 160A of the General Statutes or that exempt particular cities or towns from the application of either or both of those two Parts. Therefore, all such acts and provisions of acts, even if not specifically listed and repealed in Sections 26 through 35.4 of this act, are repealed. Neither this section nor Sections 26 through 35.4 of this act shall affect any annexation in progress on the dates of ratification of this act under any of the repealed or amended sections."

Section 38 of Session Laws 1983, c. 636 provided: "This act shall be effective with respect to all annexations where resolutions of intent are adopted on or after the date of ratification of this act, except that Sections 36 and 37 shall become effective with respect to all annexations where resolutions of intent are adopted on or after July 1, 1984, Sections 25.1 through 35.5 and Section 37.1 are effective upon ratification and Section 25 shall become effective as provided in that section. No annexation where a resolution of intent was adopted prior to the date of ratification of this act shall be affected by this act except as provided in Section 25." The act was ratified June 29, 1983.

Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

CASE NOTES

Editor's Note. - Some of the cases annotated below were decided prior to the recodification of G.S. 160A-49.1 as this section by Session Laws 2011-396, s. 2.

Section Required to Be Followed Only Where Annexation Achieved Under Chapter 160A, Art. 4A, Part 3. - G.S. 160A-47, dealing with the submission of plans by the municipality for the extension of municipal services (including police and fire protection, solid waste collection, and street maintenance), this section and G.S. 160A-49.3, dealing with contracting for fire protection and sewage services, are required to be followed by a municipality only where the annexation is to be achieved under Chapter 160A, Art. 4A, Part 3. Piedmont Ford Truck Sales, Inc. v. City of Greensboro, 90 N.C. App. 692, 370 S.E.2d 262 (1988), rev'd on other grounds, 324 N.C. 499, 380 S.E.2d 107 (1989).

Local act requiring city to extend municipal services, including services relating to health and sanitation, in a manner not authorized except when annexation is accomplished under general law was in contravention of N.C. Const., Art. II, § 24(a), and therefore void. Piedmont Ford Truck Sales, Inc. v. City of Greensboro, 90 N.C. App. 692, 370 S.E.2d 262 (1988), rev'd on other grounds, 324 N.C. 499, 380 S.E.2d 107 (1989).

Cited in Piedmont Ford Truck Sale, Inc. v. City of Greensboro, 324 N.C. 499, 380 S.E.2d 107 (1989); Chapel Hill Country Club, Inc. v. Town of Chapel Hill, 97 N.C. App. 171, 388 S.E.2d 168 (1990).


§ 160A-58.58. Assumption of debt.

  1. If the city has annexed any area which is served by a rural fire department and which is in an insurance district defined under G.S. 153A-233, a rural fire protection district under Article 3A of Chapter 69 of the General Statutes or a fire service district under Article 16 of Chapter 153A of the General Statutes, then upon the effective date of annexation if the city has not contracted with the rural fire department for fire protection, or when the rural fire department ceases to provide fire protection under contract, then the city shall pay annually a proportionate share of any payments due on any debt (including principal and interest) relating to facilities or equipment of the rural fire department, if the debt was existing at the time of adoption of the resolution of intent, with the payments in the same proportion that the assessed valuation of the area of the district annexed bears to the assessed valuation of the entire district on the date the annexation ordinance becomes effective or another date for valuation mutually agreed upon by the city and the fire department.
  2. The city and rural fire department shall jointly present a payment schedule to the Local Government Commission for approval and no payment may be made until such schedule is approved.

History

(1983, c. 636, s. 23; 1998-150, s. 16; 2011-396, s. 3.)

Editor's Note. - This section was formerly G.S. 160A-49.2. It was recodified as G.S. 160A-58.58 by Session Laws 2011-396, s. 3, effective July 1, 2011.

Session Laws 1983, c. 636, which amended this section, in s. 37.1, as amended by Session Laws 1983, c. 768, s. 25, provided: "The General Assembly intends by this act to repeal all acts and provisions of acts that modify the application to particular cities and towns of Parts 2 and 3 of Article 4A of Chapter 160A of the General Statutes or that exempt particular cities or towns from the application of either or both of those two Parts. Therefore, all such acts and provisions of acts, even if not specifically listed and repealed in Sections 26 through 35.4 of this act, are repealed. Neither this section nor Sections 26 through 35.4 of this act shall affect any annexation in progress on the dates of ratification of this act under any of the repealed or amended sections."

Section 38 of Session Laws 1983, c. 636 provided: "This act shall be effective with respect to all annexations where resolutions of intent are adopted on or after the date of ratification of this act, except that Sections 36 and 37 shall become effective with respect to all annexations where resolutions of intent are adopted on or after July 1, 1984, Sections 25.1 through 35.5 and Section 37.1 are effective upon ratification and Section 25 shall become effective as provided in that section. No annexation where a resolution of intent was adopted prior to the date of ratification of this act shall be affected by this act except as provided in Section 25."

The act was ratified June 29, 1983.

Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."


§ 160A-58.59. Contract with private solid waste collection firms.

  1. If the area to be annexed described in a resolution of intent passed under G.S. 160A-58.55(c) includes an area where a firm (i) meets the requirements of subsection (b) of this section, (ii) on the ninetieth day preceding the date of adoption of the resolution of intent or resolution of consideration was providing solid waste collection services in the area to be annexed, (iii) on the date of adoption of the resolution of intent is still providing such services, and (iv) by reason of the annexation the firm's franchise with a county or arrangements with third parties for solid waste collection will be terminated, the city shall do one of the following:
    1. Contract with the firm for a period of two years after the effective date of the annexation ordinance to allow the firm to provide collection services to the city in the area to be annexed for sums determined under subsection (f) of this section.
    2. Pay the firm for the firm's economic loss, with one-third of the economic loss to be paid within 30 days of the termination and the balance paid in 12 equal monthly installments during the next succeeding 12 months. Any remaining economic loss payment is forfeited if the firm terminates service to customers in the annexation area prior to the effective date of the annexation.
    3. Make other arrangements satisfactory to the parties.
  2. To qualify for the options set forth in subsection (a) of this section, a firm must have done one of the following:
    1. Subsequent to receiving notice of the annexation in accordance with subsection (d) of this section, filed with the city clerk at least 10 days prior to the public hearing a written request to contract with the city to provide solid waste collection services containing a certification, signed by an officer or owner of the firm, that the firm serves at least 50 customers within the county at that time.
    2. Contacted the city clerk pursuant to public notice published by the city, pursuant to G.S. 160A-58.55(d), at least 10 days before the hearing and provided to the city clerk a written request to contract with the city to provide solid waste collection services. The request must contain a certification signed by an officer or owner of the firm that the firm serves at least 50 customers within the county at that time.
  3. Firms shall file notice of provision of solid waste collection service with the city clerk of all cities located in the firm's collection area or within five miles thereof.
  4. At least four weeks prior to the date of the informational meeting, the city shall provide written notice of the resolution of intent to all firms serving the area to be annexed. The notice shall be sent to all firms that filed notice in accordance with subsection (c) of this section by certified mail, return receipt requested, to the address provided by the firm under subsection (c) of this section.
  5. The city may require that the contract contain:
    1. A requirement that the firm post a performance bond and maintain public liability insurance coverage;
    2. A requirement that the firm agree to service customers in the annexed area that were not served by that firm on the effective date of annexation;
    3. A provision that divides the annexed area into service areas if there were more than one firm being contracted within the area, such that the entire area is served by the firms, or by the city as to customers not served by the firms;
    4. A provision that the city may serve customers not served by the firm on the effective date of annexation;
    5. A provision that the contract can be cancelled in writing, delivered by certified mail to the firm in question with 30 days to cure substantial violations of the contract, but no contract may be cancelled on these grounds unless the Local Government Commission finds that substantial violations have occurred, except that the city may suspend the contract for up to 30 days if it finds substantial violation of health laws;
    6. Performance standards, not exceeding city standards existing at the time of notice published pursuant to G.S. 160A-49(b) [160A-58.55(d)] with provision that the contract may be cancelled for substantial violations of those standards, but no contract may be cancelled on those grounds unless the Local Government Commission finds that substantial violations have occurred;
    7. A provision for monetary damages if there are violations of the contract or of performance standards.
  6. If the services to be provided to the city by reason of the annexation are substantially the same as rendered under the franchise with the county or arrangements with the parties, the amount paid by the city shall be at least ninety percent (90%) of the amount paid or required under the existing franchise or arrangements. If such services are required to be adjusted to conform to city standards or as a result of changes in the number of customers and as a result there are changes in disposal costs (including mileage and landfill charges), requirements for storage capacity (dumpsters and/or residential carts), and/or frequency of collection, the amount paid by the city for the service shall be increased or decreased to reflect the value of such adjusted services as if computed under the existing franchise or arrangements. In the event agreement cannot be reached between the city and the firm under this subsection, the matters shall be determined by the Local Government Commission.
  7. The firm may, if it contends that no contract has been offered, appeal to the Local Government Commission within 30 days following passage of an annexation ordinance. The firm may appeal to the Local Government Commission for an order staying the operation of the annexation ordinance pending the outcome of the review. The Commission may grant or deny the stay upon such terms as it deems proper. If the Local Government Commission finds that the city has not made an offer which complies with this section, it shall remand the ordinance to the municipal governing board for further proceedings, and the ordinance shall not become effective until the Local Government Commission finds that such an offer has been made. Either the firm or the city may obtain judicial review in accordance with Chapter 150B of the General Statutes.
  8. A firm which has given notice under subsection (a) of this section that it desires to contract, and any firm that the city believes is eligible to give such notice, shall make available to the city not later than 30 days following a written request of the city, sent by certified mail return receipt requested, all information in its possession or control, including but not limited to operational, financial and budgetary information, necessary for the city to determine if the firm qualifies for the benefits of this section and to determine the nature and scope of the potential contract and/or economic loss. The firm forfeits its rights under this section if it fails to make a good faith response within 30 days following receipt of the written request for information from the city, provided that the city's written request so states by specific reference to this section.
  9. As used in this section, the following terms mean:
    1. Economic loss. - A sum equal to 15 times the average gross monthly revenue for the three months prior to the passage of the resolution of intent or resolution of consideration, as applicable under subsection (a) of this section, collected or due the firm for residential, commercial, and industrial collection service in the area annexed or to be annexed; provided that revenues shall be included in calculations under this subdivision only if policies of the city will provide solid waste collection to those customers such that arrangements between the firm and the customers will be terminated.
    2. Firm. - A private solid waste collection firm.

History

(1985, c. 610, s. 4; 1987, c. 827, s. 1; 1989, c. 598, s. 9; 1998-150, s. 17; 2006-193, s. 2; 2006-259, s. 53; 2011-396, ss. 4, 9.)

Cross References. - As to effective date of annexation ordinances adopted under Article 4A of Chapter 160A, see G.S. 160A-58.9A.

Editor's Note. - This section was formerly G.S. 160A-49.3. It was recodified as G.S. 160A-58.59 by Session Laws 2011-396, s. 4, effective July 1, 2011.

The bracketed reference in subdivision (e)(6) to "[G.S. 160A-58.55(d)]" was added at the direction of the Revisor of Statutes as former G.S. 160A-49 was repealed by Session Laws 2011-396, s. 7, effective July 1, 2011.

Session Laws 2006-193, s. 2, which rewrote the section, was made applicable to annexations for which a resolution of intent was adopted on or after January 1, 2007.

Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

Effect of Amendments. - Session Laws 2006-193, s. 2, applicable to annexations for which a resolution of intent is adopted on or after January 1, 2007, rewrote subsections (a) and (b); added subsections (a1), (a2) and (i); deleted "private" preceding "firm" and "firms" throughout subsections (c), (d) and (g); substituted "in writing, delivered by certified mail to the firm in question with 30 days to cure" for "for" in subdivision (c)(5); inserted "existing at the time of notice published pursuant to G.S. 160A-49(b)" in subdivision (c)(6); substituted "the" for "such" near the end of subsection (d); deleted subsections (e) and (f); and substituted "30 days" for "10 business days" twice in subsection (h).

Session Laws 2006-259, s. 53, effective August 23, 2006, substituted "file" for "fill" near the beginning of subsection (a2).

Session Laws 2011-396, s. 9, effective July 1, 2011, in the introductory paragraph of subsection (a) and in subdivision (b)(2), updated the section reference. For applicability, see editor's note.

CASE NOTES

Editor's Note. - Some of the cases annotated below were decided prior to the recodification of G.S. 160A-49.3 as this section by Session Laws 2011-396, s. 4.

Section Required to Be Followed Only Where Annexation Achieved Under Chapter 160A, Art. 4A, Part 3. - G.S. 160A-47, dealing with the submission of plans by the municipality for the extension of municipal services (including police and fire protection, solid waste collection, and street maintenance), and G.S. 160A-49.1 and this section, dealing with contracting for fire protection and sewage services, are required to be followed by a municipality only where the annexation is to be achieved under Chapter 160A, Art. 4A, Part 3. Piedmont Ford Truck Sales, Inc. v. City of Greensboro, 90 N.C. App. 692, 370 S.E.2d 262 (1988), rev'd on other grounds, 324 N.C. 499, 380 S.E.2d 107 (1989).

Local act requiring city to extend municipal services, including services relating to health and sanitation, in a manner not authorized except when annexation is accomplished under general law was in contravention of N.C. Const., Art. II, § 24(a), and therefore void. Piedmont Ford Truck Sales, Inc. v. City of Greensboro, 90 N.C. App. 692, 370 S.E.2d 262 (1988), rev'd on other grounds, 324 N.C. 499, 380 S.E.2d 107 (1989).

Cited in Piedmont Ford Truck Sale, Inc. v. City of Greensboro, 324 N.C. 499, 380 S.E.2d 107 (1989).


§ 160A-58.60. Appeal.

  1. Within 60 days following the adoption of the annexation ordinance, any property owner of real property located within the area described in the annexation ordinance who believes that property owner will suffer material injury by reason of the failure of the municipal governing board to comply with the procedure or to meet the requirements set forth in this Part as they apply to the annexation may file a petition in the superior court of the county in which the municipality is located seeking review of the action of the governing board.
  2. Such petition shall explicitly state what exceptions are taken to the action of the governing board and what relief the petitioner seeks. Within 10 days after the petition is filed with the court, the person seeking review shall serve copies of the petition by registered mail, return receipt requested, upon the municipality.
  3. Within 15 days after receipt of the copy of the petition for review or within such additional time as the court may allow, the municipality shall transmit to the reviewing court both of the following:
    1. A transcript of the portions of the municipal journal or minute book in which the procedure for annexation has been set forth.
    2. A copy of the report setting forth the plans for extending services to the annexed area as required in G.S. 160A-58.53.
  4. If two or more petitions for review are submitted to the court, the court may consolidate all such petitions for review at a single hearing, and the municipality shall be required to submit only one set of minutes and one report as required in subsection (c) of this section.
  5. At any time before or during the review proceeding, any petitioner or petitioners may apply to the reviewing court for an order staying the operation of the annexation ordinance pending the outcome of the review. The court may grant or deny the stay in its discretion upon such terms as it deems proper, and it may permit annexation of any part of the area described in the ordinance concerning which no question for review has been raised.
  6. The court shall fix the date for review of annexation proceedings under this Part, which review date shall be expeditious and without unnecessary delays. The review shall be conducted by the court without a jury. The court may hear oral arguments and receive written briefs and may take evidence intended to show one or more of the following:
    1. That the statutory procedure was not followed.
    2. That the provisions of G.S. 160A-58.53 were not met.
    3. That the provisions of G.S. 160A-58.54 have not been met.
    4. That the provisions of G.S. 160A-58.50 have not been met.
  7. The court may affirm the action of the governing board without change, or it may order any of the following:
    1. Remand the ordinance to the municipal governing board for further proceedings if procedural irregularities are found to have materially prejudiced the substantive rights of any of the petitioners.
    2. Remand the ordinance to the municipal governing board for amendment of the boundaries to conform to the provisions of G.S. 160A-58.54 if it finds that the provisions of G.S. 160A-58.54 have not been met; provided, that the court cannot remand the ordinance to the municipal governing board with directions to add area to the municipality which was not included in the notice of public hearing and not provided for in plans for service.
    3. Remand the report to the municipal governing board for amendment of the plans for providing services to the end that the provisions of G.S. 160A-58.53 are satisfied or to correct errors in [the] municipal governing board's estimates that fall below the standards in G.S. 160A-58.63.
    4. Declare the ordinance null and void, if the court finds that the ordinance cannot be corrected by remand as provided in subdivisions (1), (2), or (3) of this subsection.
  8. Any party to the review proceedings, including the municipality, may appeal to the Court of Appeals from the final judgment of the superior court under rules of procedure applicable in other civil cases. The superior court may, with the agreement of the municipality, permit annexation to be effective with respect to any part of the area concerning which no appeal is being made and which can be incorporated into the municipality without regard to any part of the area concerning which an appeal is being made.
  9. If part or all of the area annexed under the terms of an annexation ordinance is the subject of an appeal to the superior court, Court of Appeals, or Supreme Court on the effective date of the ordinance, then the ordinance shall be deemed amended to make the effective date with respect to such area the first June 30th at least six months following the date of the final judgment of the superior court or appellate division, or the first June 30 th at least six months from the date the municipal governing board completes action to make the ordinance conform to the court's instructions in the event of remand. For the purposes of this subsection, a denial of a petition for rehearing or for discretionary review shall be treated as a final judgment.
  10. If a petition for review is filed under subsection (a) of this section or an appeal is filed under G.S. 160A-58.57(g) or G.S. 160A-58.59(g) and a stay is granted, then the time periods of three and one-half years or G.S. 160A-58.55(n) are each extended by the lesser of the length of the stay or one year for that annexation.
  11. The provisions of subsection (i) of this section shall apply to any judicial review authorized in whole or in part by G.S. 160A-58.57(i) or G.S. 160A-58.57(g).
  12. In any proceeding related to an annexation ordinance appeal under this section, a municipality shall not state a claim for lost property tax revenue caused by the appeal. Nothing in this Article shall be construed to mean that as a result of an appeal a municipality may assert a claim for property tax revenue lost during the pendency of the appeal.
  13. Any settlement reached by all parties in an appeal under this section may be presented to the superior court in the county in which the municipality is located. If the superior court, in its discretion, approves the settlement, it shall be binding on all parties without the need for approval by the General Assembly.
  14. If a final court order is issued against the annexing municipality, costs in the action, including reasonable attorneys' fees for such aggrieved person having a freehold interest in the real property located within the area described in the annexation ordinance, may be charged to the municipality.

If any municipality shall fail to take action in accordance with the court's instructions upon remand within 90 days following entry of the order embodying the court's instructions, the annexation proceeding shall be deemed null and void.

History

(2011-396, s. 9 2012-11, s. 5; 2013-410, s. 15.)

Editor's Note. - Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

Session Laws 2012-11, s. 5, provided that "G.S. 160A-60(a) reads as rewritten" when, in fact, the text that was set out in the act matched that of G.S. 160A-58.60(a). At the direction of the Revisor of Statutes, the amendment was not implemented. Subsequently, Session Laws 2013-410, s. 15, amended the introductory language of Session Laws 2012-11, s. 5, so that it now identifies G.S. 160A-58.60 as the section being amended, and the amendment has now been implemented.

Effect of Amendments. - Session Laws 2012-11, s. 5, as amended by Session Laws 2013-410, s. 15, effective July 1, 2012, substituted "following the adoption of the annexation ordinance" for "following the close of the signature period under G.S. 160A-58.55(i)" near the beginning of subsection (a). For applicability, see Editor's note.

CASE NOTES

Reason for Judicial Review. - The difficulties of applying the standards of G.S. 160A-36 in extreme cases are the reason the Municipal Government Study Commission recommended a provision for court review, set out in this section, to determine whether the agency making the decision made a reasonable decision in accord with statutory standards. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532, 135 S.E.2d 574 (1964).

Scope of Superior Court Re-
view - The superior court's review of an involuntary annexation proceeding, pursuant to this section, is limited in scope to the following: (1) Did the municipality comply with the statutory procedures? (2) If not, will petitioners "suffer material injury" by reason of the municipality's failure to comply? (3) Does the character of the area specified for annexation meet the requirements of G.S. 160A-36 as applied to petitioners' property? Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979).

Subsection (f) of this section and G.S. 160A-50(f) limit the court's inquiry on review of an annexation ordinance to a determination of whether applicable annexation statutes have been substantially complied with. Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, aff'd, 321 N.C. 589, 364 S.E.2d 139 (1988).

In determining the validity of an annexation ordinance, the court's review is limited to the following inquiries: (1) Did the municipality comply with the statutory procedures? (2) If not, will the petitioner suffer material injury thereby? (3) Does the area to be annexed meet the requirements of G.S. 160A-36 or G.S. 160A-48? Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, aff'd, 321 N.C. 589, 364 S.E.2d 139 (1988).

Section Provides Only Procedure Available to Property Owners to Prevent Annexation. - The statutory remedy provided by this section is the only procedure available to property owners to prevent the annexation provided by an annexation ordinance. Gaskill v. Costlow, 270 N.C. 686, 155 S.E.2d 148 (1967).

Remedy Under G.S. 160A-37 Exclusive Where Annexation Not Challenged Under This Section. - Where annexation is completed without being challenged in the manner prescribed by this section, it becomes an accomplished fact, and the remedies of property owners and citizens within the annexed areas are those provided in subsection (h) of G.S. 160A-37. Gaskill v. Costlow, 270 N.C. 686, 155 S.E.2d 148 (1967).

Independent Action to Have Ordinance Declared Void Ab Initio May Not Be Maintained. - An owner of land in an area annexed by a municipality may attack the validity of the annexation ordinance only by filing a petition within 30 days following the passage of the ordinance seeking a review of the action of the municipal board of commissioners, in accordance with the procedure provided by this section, and an independent action instituted some 22 months after the adoption of the ordinance and seeking to have it declared void ab initio will be dismissed. Gaskill v. Costlow, 270 N.C. 686, 155 S.E.2d 148 (1967).

Who May Appeal. - Any person owning property in annexed territory has a right, within 30 days following the passage of the annexation ordinance, to challenge its validity by petition for review filed in the superior court. Gaskill v. Costlow, 270 N.C. 686, 155 S.E.2d 148 (1967).

Subsection (a) allows persons owning property in the area to be annexed to appeal if such property owners believe that they will suffer material injury. Taylor v. City of Raleigh, 22 N.C. App. 259, 206 S.E.2d 401 (1974), aff'd, 290 N.C. 608, 227 S.E.2d 576 (1976).

Fact that city was proceeding under a local act which did not set forth the persons who could appeal, rather than under this Chapter, did not extend the right to challenge the annexation to persons outside the annexed area who did not own property within it. Taylor v. City of Raleigh, 22 N.C. App. 259, 206 S.E.2d 401 (1974), aff'd, 290 N.C. 608, 227 S.E.2d 576 (1976).

The only persons given authority by this Chapter to challenge an annexation ordinance are those who own property in the annexed area. Davis v. City of Archdale, 81 N.C. App. 505, 344 S.E.2d 369 (1986).

Plaintiff town had no standing to challenge annexations of contiguous properties by nearby village. Town of Seven Devils v. Village of Sugar Mt., 125 N.C. App. 692, 482 S.E.2d 39, cert. denied, 346 N.C. 185, 486 S.E.2d 219 (1997).

The consolidation of two or more petitions for review in a single hearing referred to in subsection (d) refers to the consolidation of two or more petitions which involve a single annexation area and ordinance. Dunn v. City of Charlotte, 284 N.C. 542, 201 S.E.2d 873 (1974).

Failure to Allege Material Injury Not Fatal. - While the better practice would be to allege specifically that the petitioner will suffer material injury by reason of the failure of respondent to comply with the statutory procedures regarding annexation, the failure to do so is not fatal, particularly if the petition contains allegations from which material injury can be implied. Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496, cert. denied, 275 N.C. 681 (1969).

Effect of Appeal on Effective Date of Annexation for Tax Purposes. - Where an appeal from an annexation ordinance was pending in the Court of Appeals on the effective date of annexation specified in the ordinance, May 15, 1969, and the decision of the Court of Appeals was filed and certified in September 1969, property within the area being annexed was not subject to municipal ad valorem taxes for the fiscal year beginning July 1, 1969, since (1) newly annexed territory is subject to municipal taxes levied for the fiscal year following the effective date of annexation, G.S. 160A-37(f), and (2) under subsection (i) of this section the appeal postponed the effective date of the ordinance until the date of the final judgment of the appellate court. Adams-Millis Corp. v. Town of Kernersville, 281 N.C. 147, 187 S.E.2d 704 (1972).

Findings of fact of the superior court are binding on appeal if supported by competent evidence, even though there is evidence to the contrary. Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240, cert. denied, 306 N.C. 559, 294 S.E.2d 371 (1982).

Record Must Show Prima Facie Compliance. - Upon review in the superior court of a municipal annexation ordinance enacted pursuant to this Article, the record of the proceedings, including the report and annexation ordinance, must show prima facie complete and substantial compliance with this Article as a condition precedent to the right of the municipality to annex the territory. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961); In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

Burden on Petitioners to Prove Prejudicial Irregularity Where Prima Facie Compliance Shown. - Where, upon review in the superior court of an annexation ordinance, the record of the proceeding shows prima facie that there has been substantial compliance with the requirements and provisions of the annexation statute, the burden is upon petitioners to show by competent evidence failure on the part of the municipality to comply with the statutory requirements as a matter of fact, or irregularity in the proceedings which materially prejudices the substantive rights of petitioners. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961); In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961); Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240, cert. denied, 306 N.C. 559, 294 S.E.2d 371 (1982); Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, aff'd, 321 N.C. 589, 364 S.E.2d 139 (1988).

The burden is upon petitioners in such case by reason of the presumption that public officials will discharge their duties in good faith and exercise their powers in accord with the spirit and purpose of the law. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

Trial court erred in striking down a village's annexation ordinances because the village substantially complied with the essential statutory provisions in annexing the property owners' land and the property owners failed to produce competent evidence demonstrating that the village failed to meet the statutory requirements as a matter of fact or that an irregularity in the proceedings existed which materially prejudiced the owners' substantive rights so that the owners suffered a material injury. Norwood v. Village of Sugar Mt., 193 N.C. App. 293, 667 S.E.2d 524 (2008), review denied, review dismissed, as moot, 363 N.C. 582, 682 S.E.2d 386 (2009).

Nothing to Review on Issue of Availability If Compliance Is Clear. - If a municipality clearly complies with the standards of subsection (c) of G.S. 160A-36, there is nothing to review with respect to the availability of an area proposed for annexation. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532, 135 S.E.2d 574 (1964).

Where compliance is in doubt, the determination must be made upon the facts in the particular case with respect to the availability of an area proposed for annexation under subsection (c) of G.S. 160A-36. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532, 135 S.E.2d 574 (1964).

Court May Not Amend Record. - The superior court itself is without authority to amend the report, ordinance or other part of the record. This is true even if evidence is presented which justifies amendment. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

Remand Where Compliance Not Shown by Record. - Under this section, if the record of annexation proceedings on its face fails to show substantial compliance with any essential provision of this Article, the superior court upon review must remand to the governing board for amendment with respect to such noncompliance. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

Remand of Ordinance for Amendment. - Trial court, pursuant to G.S. 160A-38(g)(2), instead of striking a village ordinance should have simply remanded the ordinance to the village to amend the annexation boundaries so as to conform with G.S. 160A-36. Norwood v. Village of Sugar Mt., 193 N.C. App. 293, 667 S.E.2d 524 (2008), review denied, review dismissed, as moot, 363 N.C. 582, 682 S.E.2d 386 (2009).

Public Hearing on Remand. - Neither subdivision (g)(2) of this section nor any other provisions of the annexation statute requires the municipal governing board upon remand to hold a second public hearing unless it adds an area not included in the original notice of public hearing and not provided for in the plans for service. Rexham Corp. v. Town of Pineville, 26 N.C. App. 349, 216 S.E.2d 445 (1975).

When Court May Permit Annexation of Part of Area. - The superior court may permit, under subsection (h) of this section, an annexation ordinance to be effective with respect to a part of the area proposed only when there is no appeal in regard to such part and the municipality agrees to the order for such partial annexation. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

Where an order is issued restraining the operation of an annexation ordinance as to the entire area pending review, subsection (e) of this section has no application, since the statute permits the court to approve the annexation of a part of the proposed area only when no question for review has been raised as to such part. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

Voiding of Town Ordinance Rather Than Remanding - When a town adopted an ordinance proposing to annex certain land, it was proper for the trial court to declare the ordinance void, under G.S. 160A-38(g)(4), rather than remanding the matter to the town for amendment of the boundaries, because there was no evidence that the annexation area could be corrected on remand to comply with the applicable statutes. Hughes v. Town of Oak Island, 158 N.C. App. 175, 580 S.E.2d 704, aff'd, 357 N.C. 653, 588 S.E.2d 467 (2003).

Findings of fact of the superior court are binding on appeal if supported by competent evidence, even though there is evidence to the contrary. Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240, cert. denied, 306 N.C. 559, 294 S.E.2d 371 (1982).

Jurisdiction of Court of Appeals. - An appeal from an order of the superior court affirming an annexation ordinance was properly taken to the Court of Appeals, notwithstanding that by clear legislative oversight subsections (h) and (i) of this section were not amended to include the Court of Appeals as one of the appellate courts, since G.S. 7A-27 gives initial appellate jurisdiction of such cause to the Court of Appeals, and the Court of Appeals, therefore, is deemed to be included in subsections (h) and (i). Adams-Millis Corp. v. Town of Kernersville, 281 N.C. 147, 187 S.E.2d 704 (1972).

Filing of Petition Necessary to Perfect Appellate Jurisdiction in Superior Court. - An appeal from the passage of an annexation ordinance by a municipality having a population of less than 5,000 must be taken within 30 days following such passage by filing a petition in the superior court of the county in which the municipality is located. Compliance with this provision is a condition precedent to perfecting appellate jurisdiction in the superior court for the review of an annexation ordinance. Ingles Markets, Inc. v. Town of Black Mt., 98 N.C. App. 372, 390 S.E.2d 688, cert. denied, 327 N.C. 429, 395 S.E.2d 679 (1990).

Entry of Remand Order Divested Superior Court of Jurisdiction. - Superior court's entry of order of remand of appeal of adoption of 1988 ordinance for the limited purpose of including specific findings of fact that the area to be annexed was developed for urban purposes divested that court of appellate jurisdiction to conduct further review of those aspects of the petition brought forward, but not addressed by the order, such that petitioner was required to appeal anew from the action of the town taken pursuant to remand in adopting an amended 1989 ordinance in order to obtain the right to a review of the 1989 ordinance in the superior court. Ingles Markets, Inc. v. Town of Black Mt., 98 N.C. App. 372, 390 S.E.2d 688, cert. denied, 327 N.C. 429, 395 S.E.2d 679 (1990).

Further Appellate Review After Remand. - In order to obtain further review of an annexation ordinance after infirmities have been corrected by the municipality pursuant to an order of remand, whether such order of remand addresses all or merely some of the issues raised in the initial petition, appellate jurisdiction in the superior court must be perfected anew by filing a separate petition in accordance with the provisions of G.S. 160A-38(a). Ingles Markets, Inc. v. Town of Black Mt., 98 N.C. App. 372, 390 S.E.2d 688, cert. denied, 327 N.C. 429, 395 S.E.2d 679 (1990).

Effective date of an ordinance adopted pursuant to superior court's order of remand is neither postponed nor amended absent further appeal, which must be taken within the required 30 days; i.e., the ordinance becomes an accomplished fact, subject only to further appeal. Ingles Markets, Inc. v. Town of Black Mt., 98 N.C. App. 372, 390 S.E.2d 688, cert. denied, 327 N.C. 429, 395 S.E.2d 679 (1990).

Appeal Dismissed. - Where the thirty days afforded by this section expired before plaintiff filed its petition for review of the ordinance, the trial court was within jurisdiction and properly dismissed the action. Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101, 493 S.E.2d 797 (1997).

Property owners did not show that a town was unreasonable in relying upon an actual survey, as allowed by G.S. 160A-36; thus, the reviewing court did not err in concluding that one property consisted of two separate lots for the purposes of the subdivision test. Hayes v. Town of Fairmont, 167 N.C. App. 522, 605 S.E.2d 717 (2004), cert. denied, 359 N.C. 410, 612 S.E.2d 320 (2005).

Substantial Compliance With Statute Shown. - Trial court erred in concluding that the usage of disputed acres affected the classification of a golf course tract as a whole when the golf course was annexed by a town ordinance, because the golf course tract was properly designated as commercial by the town in its original calculations, and the entire acreage should have been included as commercial acreage for purposes of calculations under the use test; based on the new calculations, the annexation area met the 60 percent minimum required under the subdivision test of G.S. 160A-36(c)(1), and, given that the town substantially complied with the provisions of G.S. 160A-36, the ordinance was properly affirmed without amendment pursuant to G.S. 160A-38. Hayes v. Town of Fairmont, 167 N.C. App. 522, 605 S.E.2d 717 (2004), cert. denied, 359 N.C. 410, 612 S.E.2d 320 (2005).

Annexation Properly Affirmed. - Trial court properly found that a village provided independent administrative, engineering, auditing, legal, and planning services to its residents, and that the village was exploring options for obtaining additional police patrol services, and had committed itself to providing its current and future levels of such services to its residents in a non-discriminatory manner; the trial court found that the village was going to provide some additional services to the area to be annexed, notwithstanding land owners' claim they would receive no additional services whatsoever, and the trial court's order affirming the annexation was proper. Nolan v. Village of Marvin, 172 N.C. App. 84, 615 S.E.2d 898 (2005).

.

I. IN GENERAL.

.

Limited Scope of Review. - Section 160A-38(f) and subsection (f) of this section limit the court's inquiry on review of an annexation ordinance to a determination of whether applicable annexation statutes have been substantially complied with. Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, aff'd, 321 N.C. 589, 364 S.E.2d 139 (1988).

In determining the validity of an annexation ordinance, the court's review is limited to the following inquiries: (1) Did the municipality comply with the statutory procedures? (2) If not, will the petitioner suffer material injury thereby? (3) Does the area to be annexed meet the requirements of G.S. 160A-36 or G.S. 160A-48? Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, aff'd, 321 N.C. 589, 364 S.E.2d 139 (1988).

Supreme Court Appeals Not Included. - There is no evidence to support a conclusion that the General Assembly intended the automatic stay of an annexation ordinance to include appeals to the United States Supreme Court. Biltmore Square Assocs. v. City of Asheville, 129 N.C. App. 101, 497 S.E.2d 121 (1998).

If a party desires to stay the effective date of an annexation while a petition for certiorari is pending before the United States Supreme Court, a stay can be requested from the Court pursuant to a motion under Rule 23 of the Rules of the Supreme Court of the United States. Biltmore Square Assocs. v. City of Asheville, 129 N.C. App. 101, 497 S.E.2d 121 (1998).

The annexation statutes are not taxation statutes, nor are they retrospective taxation statutes. Little Red School House, Ltd. v. City of Greensboro, 71 N.C. App. 332, 322 S.E.2d 195 (1984), cert. denied and appeal dismissed, 313 N.C. 514, 329 S.E.2d 392 (1985).

The central purpose behind the annexation procedure is to assure that, in return for the added financial burden of municipal taxation, the residents of the annexed area receive the benefits of all the major services available to municipal residents. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

The minimum requirements of the annexation statute are that the city provide information which is necessary to allow the public and the courts to determine whether the municipality has committed itself to provide a nondiscriminatory level of service. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

Subsection (g) Time Requirement. - A city annexation ordinance was valid where the city complied with the 3-month requirement of subsection (g) although it acted more than six months after the Court of Appeals' opinion was filed; the city could act only after the case was remanded two times; first to the superior court, and then to the city council because only then did the city have the power to revise the annexation ordinance. Bowers v. City of Thomasville, 143 N.C. App. 291, 547 S.E.2d 68, cert. denied, 353 N.C. 723, 550 S.E.2d 769 (2001).

As to the different appellate forums formerly prescribed for appeals under this section and G.S. 160A-38(h), see In re Annexation Ordinance, 300 N.C. 337, 266 S.E.2d 661 (1980), decided prior to the 1981 amendment to this section.

Who May Challenge Annexation Ordinance. - The only persons given the authority by this chapter to challenge an annexation ordinance are those who own property in the annexed area. Davis v. City of Archdale, 81 N.C. App. 505, 344 S.E.2d 369 (1986).

Where the record of the annexation proceedings showed substantial compliance with the requirements of Chapter 160A, the burden was on petitioners to prove failure to meet those requirements or an irregularity in the proceedings which materially prejudiced their substantive rights. Thrash v. City of Asheville, 115 N.C. App. 310, 444 S.E.2d 482 (1994).

Plaintiff town had no standing to challenge annexations of contiguous properties by nearby village. Town of Seven Devils v. Village of Sugar Mt., 125 N.C. App. 692, 482 S.E.2d 39, cert. denied, 346 N.C. 185, 486 S.E.2d 219 (1997).

Denial of Motion to Intervene Was Proper. - Denial of a corporation's motion to intervene in a case seeking review of an annexation ordinance was proper, since the corporation failed to comply with G.S. 160A-50 procedures by moving to intervene six months after the ordinance was adopted; intervention was also improper under G.S. 1A-1-24, due to the facts that the motion was filed after judgment approving a settlement was entered and that the proposed intervention would have prejudiced the original parties by destroying their settlement. Gates Four Homeowners Ass'n v. City of Fayetteville, 170 N.C. App. 688, 613 S.E.2d 55 (2005).

No Jurisdiction Over Plans Concerning Transportation. - Since plans and procedures concerning transportation are not required by law, a reviewing court has no jurisdiction to hear evidence on this issue. Parkwood Ass'n v. City of Durham, 124 N.C. App. 603, 478 S.E.2d 204 (1996).

Order compelling discovery was generally not immediately appealable; while G.S. 160A-50 contemplated an expedited hearing procedure, where the challengers in an annexation case did not appear concerned with an expedited hearing, and the most significant portion of the delay in the matter was due to the challengers' refusal to answer discovery, and in getting the matter before the appellate court, the challengers failed to show that a substantial right was affected, and an order compelling discovery was not immediately appealable. Arnold v. City of Asheville, 169 N.C. App. 451, 610 S.E.2d 280 (2005).

II. REVIEW BY SUPERIOR COURT.

.

Annexation statutes are not unconstitutional in providing that review by the superior court is without a jury. In re Annexation Ordinance No. D-21927, 303 N.C. 220, 278 S.E.2d 224 (1981).

Provisions for Nonjury Trial in Subsection (f) Not Superseded by Rules of Civil Procedure. - The provisions of subsection (f) authorizing review of annexation proceedings by the court without a jury have not been superseded by the N.C. Rules of Civil Procedure. In re Annexation Ordinance, 284 N.C. 442, 202 S.E.2d 143 (1974).

This section specifies the inquiries to which the courts are limited. In re Annexation Ordinance, 284 N.C. 442, 202 S.E.2d 143 (1974).

Constitutional Challenges Restricted. - Attacks on state annexation procedures on either due process or equal protection grounds are specifically foreclosed. Baldwin v. City of Winston-Salem, 544 F. Supp. 123 (M.D.N.C. 1982), aff'd, 710 F.2d 132 (4th Cir. 1983).

Challenges to annexations generally are not actionable under U.S. Const., Amend. XIV. Raintree Homeowners Ass'n v. City of Charlotte, 543 F. Supp. 625 (W.D.N.C. 1982), aff'd sub nom., Baldwin v. City of Winston-Salem, 710 F.2d 132 (4th Cir. 1983).

Limited Scope of Review. - The judicial review afforded in annexation proceedings is limited in scope and serves as a safeguard against unreasonable and arbitrary action by the annexing municipality. Moody v. Town of Carrboro, 301 N.C. 318, 271 S.E.2d 265 (1980), rehearing denied, 301 N.C. 728, 274 S.E.2d 230 (1981).

Judicial review of an annexation ordinance is limited to determination of whether the annexation proceedings substantially comply with the requirements of the applicable annexation statute. Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980).

The clear intent of the legislature under this section was to provide an expedited judicial review, limited in scope, and avoiding unnecessary procedural delays. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

Section 160A-38(f) and subsection (f) of this section limit the court's inquiry on review of an annexation ordinance to a determination of whether applicable annexation statutes have been substantially complied with. Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, aff'd, 321 N.C. 589, 364 S.E.2d 139 (1988).

In determining the validity of an annexation ordinance, the court's review is limited to the following inquiries: (1) Did the municipality comply with the statutory procedures? (2) If not, will the petitioner suffer material injury thereby? (3) Does the area to be annexed meet the requirements of G.S. 160A-36 or G.S. 160A-48? Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, aff'd, 321 N.C. 589, 364 S.E.2d 139 (1988).

A court's review of an annexation ordinance is limited to the following inquiries: (1) Did the municipality comply with the statutory procedures? (2) If not, will the petitioners "suffer material injury" by reason of the municipality's failure to comply? (3) Does the character of the area specified for annexation meet the requirement of G.S. 160A-48 as applied to petitioners' property? In re Annexation Ordinance No. 1219, 62 N.C. App. 588, 303 S.E.2d 380, cert. denied and appeal dismissed, 309 N.C. 820, 310 S.E.2d 351 (1983).

There is no test of "reasonableness" which must be considered upon judicial review of an annexation proceeding. In re Annexation Ordinance No. D-21927, 303 N.C. 220, 278 S.E.2d 224 (1981).

On review of an annexation, a superior court may only hear claims based upon the grounds set out in subsection (f) of this section. There is no separate test of "reasonableness" within the limited scope of judicial review permitted in annexation cases. Raintree Homeowners Ass'n v. City of Charlotte, 543 F. Supp. 625 (W.D.N.C. 1982), aff'd sub nom. Baldwin v. City of Winston-Salem, 710 F.2d 132 (4th Cir. 1983).

Reasonableness Is Considered Under Subsection (f). - A separate test of the reasonableness of an annexation is not included within the limited scope of judicial review; however, subsection (f) of this section and the provisions incorporated therein amount to a requirement that the courts determine whether an annexation is reasonable. Forsyth Citizens Opposing Annexation v. City of Winston-Salem, 67 N.C. App. 164, 312 S.E.2d 517, cert. denied and appeal dismissed, 310 N.C. 743, 315 S.E.2d 701, appeal dismissed, 469 U.S. 802, 105 S. Ct. 57, 83 L. Ed. 2d 8 (1984).

Subsection (f) of this section and the provisions incorporated therein amount to a requirement that the superior court determine whether an annexation is reasonable. The language of the provisions does not speak in terms of arbitrariness, capriciousness or unreasonableness, but, the effect of the statute is to give substantial protection against arbitrary, capricious and unreasonable acts by the city. Raintree Homeowners Ass'n v. City of Charlotte, 543 F. Supp. 625 (W.D.N.C. 1982), aff'd sub nom., Baldwin v. City of Winston-Salem, 710 F.2d 132 (4th Cir. 1983).

Statutory procedure referred to in subdivision (f)(1) is set out in G.S. 160A-49. Raintree Homeowners Ass'n v. City of Charlotte, 543 F. Supp. 625 (W.D.N.C. 1982), aff'd sub nom. Baldwin v. City of Winston-Salem, 710 F.2d 132 (4th Cir.)

Section 160A-45 Policy Not Part of "Procedure". - The statement of state policy with regard to annexation set forth in G.S. 160A-45 is not part of the "procedure" of annexation under subsection (a) and subdivision (f)(1) of this section. In re Annexation Ordinance No. D-21927, 303 N.C. 220, 278 S.E.2d 224 (1981).

Issue on Review Is Substantial Compliance. - The basic question presented by a petition for review under this section is whether the procedure followed in adopting the ordinance was in substantial compliance with the applicable statutes. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984); Forsyth Citizens Opposing Annexation v. City of Winston-Salem, 67 N.C. App. 164, 312 S.E.2d 517, cert. denied and appeal dismissed, 310 N.C. 743, 315 S.E.2d 701, appeal dismissed, 469 U.S. 802, 105 S. Ct. 57, 83 L. Ed. 2d 8 (1984).

Record Must Show Prima Facie Compliance. - Upon review in the superior court of a municipal annexation ordinance enacted pursuant to this Article, the record of the proceedings, including the report and annexation ordinance, must show prima facie complete and substantial compliance with this Article as a condition precedent to the right of the municipality to annex the territory. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

When a power company challenged the annexation of certain of its land, pursuant to G.S. 160A-50, the city properly annexed land which was not developed for urban purposes, under G.S. 160A-48(d)(2), along with its annexation of land which was developed for urban purposes, even though the undeveloped land was not contiguous with the city's pre-annexation boundaries, because at least 60 percent of the land's external boundaries were contiguous with the developed land which was being annexed. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490 (2003).

Burden on Petitioners to Prove Noncompliance or Irregularity. - The burden is upon plaintiffs who appeal from annexation ordinance to show by competent evidence that city in fact failed to meet the statutory requirements or that there was irregularity in the proceedings which materially prejudiced their substantive rights. In re City of New Bern, 278 N.C. 641, 180 S.E.2d 851 (1971).

The party challenging the annexation has the burden of showing error. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978).

Where appeal is taken from an annexation ordinance and a petition has been filed requesting review of the annexation proceedings, and the proceedings show prima facie that there has been substantial compliance with the requirements and provisions of this Article, the burden is upon the petitioners to show, by competent evidence, failure on the part of the municipality to comply with the statutory requirements as a matter of fact or irregularity in the proceedings which materially prejudice their substantive rights. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961); Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980).

Where the record of the annexation proceedings demonstrates prima facie substantial compliance with the applicable statutes, the burden is on the petitioner to show by competent evidence that the city has failed to meet the statutory requirements or that there was some irregularity in the proceedings that resulted in material prejudice to petitioners' rights. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984); Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, aff'd, 321 N.C. 589, 364 S.E.2d 139 (1988).

Under subsection (f) of this section, a party challenging an annexation action of a governing body must show (1) that the statutory procedure was not followed, or (2) that the provisions of G.S. 160A-47 were not met, or (3) that the provisions of G.S. 160A-48 were not met. The party challenging the ordinance has the burden of showing error. Knight v. City of Wilmington, 73 N.C. App. 254, 326 S.E.2d 376 (1985).

Slight irregularities will not invalidate annexation proceedings if there has been substantial compliance with all essential provisions of the law. In re City of New Bern, 278 N.C. 641, 180 S.E.2d 851 (1971).

Absolute and literal compliance with a statute describing the conditions of annexation is unnecessary; substantial compliance only is required, because absolute and literal compliance with the statute would result in defeating the purpose of the statute in situations where no one has been or could be misled. In re City of New Bern, 278 N.C. 641, 180 S.E.2d 851 (1971); McKenzie v. City of High Point, 61 N.C. App. 393, 301 S.E.2d 129, cert. denied, 308 N.C. 544, 302 S.E.2d 885 (1983).

Adverse Effect upon Financial Interests Not Grounds for Attacking Annexation Proceedings. - A property owner can attack annexation proceedings only upon the grounds specified in the statutes; he cannot successfully resist annexation because a city ordinance will adversely affect his financial interest. In re City of New Bern, 278 N.C. 641, 180 S.E.2d 851 (1971); Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

Time Limit for Seeking Review Not Extended by Settlement Agreement. - As petitioners failed to seek judicial review of an annexation ordinance within 60 days as required by G.S. 160A-50(a), their action was time-barred. A prior settlement between the city and another party that did timely file for review did not require a remand to city council or allow petitioners a new 60-day period to seek review. Home Builders Ass'n of Fayetteville N.C. Inc. v. City of Fayetteville, 170 N.C. App. 625, 613 S.E.2d 521 (2005).

Remand for Amendment of Record. - If the record of annexation proceedings on its face fails to show substantial compliance with any essential provision of the statute, the superior court upon review must remand to the governing board for amendment with respect to such noncompliance. The court itself is without authority to amend the report, ordinance or other part of the record, even if evidence is presented which justifies amendment. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961); Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980).

Remand on City's Motion. - While this section does not explicitly empower a superior court judge to remand an annexation ordinance upon a city's motion to exclude a landowner who originally was covered by it, such remand occasioned no material injury to the petitioners, where the end result was that petitioners were not made part of the city by the ordinance at issue. Southern Glove Mfg. Co. v. City of Newton, 63 N.C. App. 754, 306 S.E.2d 466 (1983).

Remand Appropriate Remedy. - Trial court did not err in refusing to declare an involuntary annexation ordinance null and void where, assuming arguendo that any alleged procedural irregularities had prejudiced a landowner, the remedy under the G.S. 160A-50(g)(1) was a remand to the municipal governing board for further proceedings. United States Cold Storage v. City of Lumberton, 156 N.C. App. 327, 576 S.E.2d 415 (2003).

Applicability of Rules of Civil Procedure. - Since judicial review of an annexation ordinance is manifestly a "proceeding of a civil nature," the Rules of Civil Procedure clearly apply to it, unless a different procedure is provided by statute, but only to the extent necessary to process the proceeding according to its nature. A different procedure for this proceeding from that provided in the Rules of Civil Procedure is provided to some extent by this section. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, cert. denied and appeal dismissed, 312 N.C. 492, 322 S.E.2d 553 (1984).

Intervention in Petition for Review. - Petitioners' motion under G.S. 1A-1-24(a) to intervene in another party's petition for review of an annexation ordinance was properly denied, because G.S. 1A-1-24(a) does not apply to appeals of annexation ordinances under G.S. 160A-50(a). Home Builders Ass'n of Fayetteville N.C. Inc. v. City of Fayetteville, 170 N.C. App. 625, 613 S.E.2d 521 (2005).

Appellants' motion to intervene in another party's petition for review of an annexation ordinance was properly denied because, even assuming G.S. 1A-1-24(a) applied to appeals of annexation ordinances under G.S. 160A-50(a), judgment had already entered, intervention would have prejudiced the city and the other party, and appellants did not offer a legitimate reason for the delay. Home Builders Ass'n of Fayetteville N.C. Inc. v. City of Fayetteville, 170 N.C. App. 625, 613 S.E.2d 521 (2005).

Discovery. - Judicial review of an annexation ordinance is a limited judicial review, with few similarities to ordinary civil actions which are initiated, tried and adjudicated in a different manner and for which the Rules of Civil Procedure were mostly devised. Nevertheless, since the court reviewing annexation proceedings is explicitly authorized to receive evidence as to the city's compliance with the various procedures prescribed, as to its annexation plan meeting the requisites of G.S. 160A-47, and as to the area involved being eligible for annexation under G.S. 160A-48, in those instances where discovery may illuminate these issues that it is authorized under the Rules of Civil Procedure. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, cert. denied and appeal dismissed, 312 N.C. 492, 322 S.E.2d 553 (1984).

Power to Require Production of Evidence. - Absent an explicit statutory restriction to the contrary, a judge having the duty to receive evidence on and decide certain issues has the power, within his discretion, to require that evidence on those issues be produced. In the exercise of that power other factors require consideration, however, including the information already available through the documents required by subsection (c) of this section and the mandate contained in this section that these reviews be accomplished expeditiously and without unnecessary delays. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, cert. denied and appeal dismissed, 312 N.C. 492, 322 S.E.2d 553 (1984).

Settlement of Annexation Disputes. - Settlements of annexation disputes under G.S. 160A-50(m) are not "actions having the effect of an ordinance" under G.S. 160A-75, but are a method of dispute resolution in the annexation process; therefore, there is no need to send the matter back to city council after a settlement is reached. Home Builders Ass'n of Fayetteville N.C. Inc. v. City of Fayetteville, 170 N.C. App. 625, 613 S.E.2d 521 (2005).

III. REVIEW BY COURT OF APPEALS.

.

On appeal, the findings of fact made below are binding on the Supreme Court (now the Court of Appeals) if supported by the evidence, even when there may be evidence to the contrary. Humphries v. City of Jacksonville, 300 N.C. 186, 265 S.E.2d 189 (1980).

Conclusions of Law Are Reviewable De Novo. - Conclusions of law drawn by the trial judge from the findings of fact are reviewable de novo on appeal. Humphries v. City of Jacksonville, 300 N.C. 186, 265 S.E.2d 189 (1980).

Right to Appeal. - When a city proposed the involuntary annexation of certain real property, the owners of that property were entitled to seek review of the annexation ordinance passed by the city in the superior court and in the Court of Appeals. Ridgefield Props., L.L.C. v. City of Asheville, 159 N.C. App. 376, 583 S.E.2d 400 (2003), aff'd, 358 N.C. 216, 593 S.E.2d 584 (2004).

Trial court properly granted the city's motion to dismiss the military servicemembers' challenge to the annexation of approximately 28 square miles of land and over 40,000 residents as time-barred because the federal Servicemembers Civil Relief Act, specifically 50 U.S.C.S. app. § 525, did not contain a plain statement showing an unmistakably clear intent to intrude upon North Carolina's state sovereignty in the area of annexations, where: (1) the word "annexation" appeared nowhere in the statute; (2) the Act's fundamental purpose was to address personal financial claims, not large-scale government action; and (3) the servicemembers failed to cite a single case which applied the Act to non-personal claims challenging large-scale government action. Kegley v. City of Fayetteville, 170 N.C. App. 656, 613 S.E.2d 696, review denied, 359 N.C. 852, 619 S.E.2d 508 (2005), cert. denied, 546 U.S. 1138, 126 S. Ct. 1147, 163 L. Ed. 2d 1001 (2006).

Remand Required. - Because a trial court failed to make the appropriate finding that a city's annexation ordinance was not subject to correction upon remand before declaring it null and void, an appellate court remanded the case to the trial court for it to make the appropriate findings to support one of the statutory grounds under G.S. 160A-50(g). Fix v. City of Eden, 175 N.C. App. 1, 622 S.E.2d 647 (2005).

Improper Purpose and Public Policy Arguments. - When the owners of property which a village proposed to involuntarily annex contested the village's annexation ordinance, pursuant to G.S. 160A-50(f), and appealed a trial court's judgment in favor of the village, the court of appeals could not consider the owners' arguments that the village's annexation plan revealed an improper purpose for the annexation or that the annexation was contrary to public policy because these were not issues the court of appeals could consider, under the statutory limits of the court of appeals' review. Pinewild Project Ltd. P'ship v. Vill. of Pinehurst, 198 N.C. App. 347, 679 S.E.2d 424 (2009), review denied, 363 N.C. 856, 691 S.E.2d 17, N.C. LEXIS 110 (2010).

Sufficiency of Annexation Report. - City's annexation report was appropriate to the extent which (1) it contained a statement setting forth the plans of the city for the extension of street maintenance services to the annexation area in compliance with G.S. 160A-47(3)(a); (2) it complied with G.S. 160A-47 regarding the sewer service installation fee; (3) it provided a sufficient statement in an annexation report showing the financial impact of the annexation as required by G.S. 160A-47(5); and (4) it complied with G.S. 160A-47.1 regarding the extension of water and sewer services. However, the city's setting of an annexation boundary parallel to a road within a mobile home park property did not comply with the requirements of G.S. 160A-48(e). Capps v. City of Kinston, 215 N.C. App. 110, 715 S.E.2d 520, review denied, 365 N.C. 362, 719 S.E.2d 22, 2011 N.C. LEXIS 964 (2011).

IV. EFFECTIVE DATE.

.

Effect of Appeal. - Where petitioner appealed an annexation ordinance to the superior court within the time limits of subsection (a) of this section, but not before the ordinance's effective date of December 31, 1979, and the superior court on February 18, 1980, remanded the annexation plan report to the town board for a more specific statement of the services to be provided and the sources of revenues to finance such services, and where the infirmities in the report were cured by a revised plan adopted on February 26, 1980, this date became the effective date of the annexation ordinance, subject to further appeal to the superior court. Where such appeal was taken and the superior court entered an order on March 4, 1980, approving the revised annexation plan report and affirming the annexation, the effective date of the annexation became March 4, 1980, subject to further appeal to the North Carolina Supreme Court (now to the Court of Appeals). When petitioner appealed from that judgment to the Supreme Court, the effective date of the ordinance was again postponed by the language of subsection (i) of this section, until the date the final judgment of the Supreme Court was certified to the clerk of the superior court. Moody v. Town of Carrboro, 301 N.C. 318, 271 S.E.2d 265 (1980), rehearing denied, 301 N.C. 728, 274 S.E.2d 230 (1981).

The effective date of annexation ordinance was July 11, 1983, the date the judgment of the Court of Appeals holding the ordinance to be valid was certified, and not December 6, 1983, the date of the Supreme Court's order dismissing plaintiffs' appeal and denying discretionary review of the judgment of the Court of Appeals, as the final judgment in the annexation case was the judgment of the Court of Appeals. Hunter v. City of Asheville, 80 N.C. App. 325, 341 S.E.2d 743 (1986).

Act which decreased the corporate boundaries of town was constitutional and plaintiffs were time-barred from asserting any further challenges. Bethania Town Lot Comm. v. City of Winston-Salem, 126 N.C. App. 783, 486 S.E.2d 729 (1997).


§ 160A-58.61. Annexation recorded.

Whenever the limits of a municipality are enlarged in accordance with the provisions of this Part, it shall be the duty of the mayor of the municipality to cause an accurate map of such annexed territory, together with a copy of the ordinance duly certified, to be recorded in the office of the register of deeds of the county or counties in which such territory is situated and in the office of the Secretary of State. The documents required to be filed with the Secretary of State under this section shall be filed not later than 30 days following the effective date of the annexation ordinance. All documents shall have an identifying number affixed thereto and shall conform in size in accordance with rules prescribed by the Secretary. Failure to file within 30 days shall not affect the validity of the annexation. Any annexation shall be reported as part of the Boundary and Annexation Survey of the United States Bureau of the Census.

History

(1959, c. 1009, s. 7; 1973, c. 426, s. 74; 1987, c. 715, s. 8; c. 879, s. 3; 1989, c. 440, s. 9; 1991, c. 586, s. 3; 2011-396, s. 5.)

Cross References. - As to effective date of certain annexation ordinances adopted from January 1, 1987, to August 3, 1987, see G.S. 160A-58.9.

Editor's Note. - This section was formerly G.S. 160A-51. It was recodified as G.S. 160A-58.61 by Session Laws 2011-396, s. 5, effective July 1, 2011.

Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

CASE NOTES

Recordation of Map and Ordinance Not Condition Precedent to Annexation. - The requirement in this section that a map of the annexed territory, together with a certified copy of the ordinance, be recorded in the office of the register of deeds and in the office of the Secretary of State is not a condition precedent to the effective annexation of the territory, but is the imposition of a duty to be performed after the annexation is complete. Dale v. City of Morganton, 270 N.C. 567, 155 S.E.2d 136 (1967).


§ 160A-58.62. Authorized expenditures.

Municipalities initiating annexations under the provisions of this Part are authorized to make expenditures for surveys required to describe the property under consideration or for any other purpose necessary to plan for the study and/or annexation of unincorporated territory adjacent to the municipality. In addition, following final passage of the annexation ordinance, the annexing municipality shall have authority to proceed with expenditures for construction of water and sewer lines and other capital facilities and for any other purpose calculated to bring services into the annexed area in a more effective and expeditious manner prior to the effective date of annexation.

History

(1959, c. 1009, s. 8; 1973, c. 426, s. 74; 2011-396, s. 6.)

Editor's Note. - This section was formerly G.S. 160A-52. It was recodified as G.S. 160A-58.62 by Session Laws 2011-396, s. 6, effective July 1, 2011.

Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."


§ 160A-58.63. Population and land estimates.

In determining population and degree of land subdivision for purposes of meeting the requirements of G.S. 160A-58.54, the municipality shall use methods calculated to provide reasonably accurate results. In determining whether the standards set forth in G.S. 160A-58.54 have been met on appeal to the superior court under G.S. 160A-58.60, the reviewing court shall accept the estimates of the municipality unless the actual population, total area, or degree of land subdivision falls below the standards in G.S. 160A-58.54:

  1. As to population, if the estimate is based on the number of dwelling units in the area multiplied by the average family size in such area, or in the township or townships of which such area is a part, as determined by the last preceding federal decennial census; or if it is based on a new enumeration carried out under reasonable rules and regulations by the annexing municipality; provided, that the court shall not accept such estimates if the petitioners demonstrate that such estimates are in error in the amount of ten percent (10%) or more.
  2. As to total area, if the estimate is based on an actual survey, or on county tax maps or records, or on aerial photographs, or on some other reasonably reliable map used for official purposes by a governmental agency, unless the petitioners on appeal demonstrate that such estimates are in error in the amount of five percent (5%) or more.
  3. As to degree of land subdivision, if the estimates are based on an actual survey, or on county tax maps or records, or on aerial photographs, or on some other reasonably reliable source, unless the petitioners on appeal show that such estimates are in error in the amount of five percent (5%) or more.

History

(2011-396, s. 9.)

Editor's Note. - Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

CASE NOTES

Determining What Is a "Lot". - In making an appraisal of an area to be annexed, there are several methods which can be used in determining what is a lot. One is to count each numbered lot separately. Another is to consider a landlocked lot as part of the lot in front of it and group the two lots, i.e., the landlocked lot and the one providing it with access to a street, as being a single lot. A third method would be to consider a group of lots in single ownership and used for a single purpose as being a tract within the meaning of the statute, and count tracts rather than lots. Any one of these methods would be "calculated to provide reasonably accurate results," as required by this section. Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496, cert. denied, 275 N.C. 681 (1969).

Property owners did not show that a town was unreasonable in relying upon an actual survey, as allowed by G.S. 160A-36; thus, the reviewing court did not err in concluding that one property consisted of two separate lots for the purposes of the subdivision test. Hayes v. Town of Fairmont, 167 N.C. App. 522, 605 S.E.2d 717 (2004), cert. denied, 359 N.C. 410, 612 S.E.2d 320 (2005).

Recorded Plat. - Recorded plat was not a "reasonably reliable" source for purposes of showing subdivision where: (1) property shown on plat had never actually been developed; (2) county tax office had exceeded its statutory authority in classifying property as "subdivision," because it was not divided into lots and there were no streets (G.S. 105-287); (3) the property had never been surveyed; and (4) no lots had ever been sold. Further, aerial photographs showed no road while recorded plat did. When accuracy of record evidence proffered by city to meet requisites for annexation is belied by evidence of actual condition of property, such records are not "reasonably reliable" for the purposes of this section. Thrash v. City of Asheville, 327 N.C. 251, 393 S.E.2d 842 (1990).

Use of Planimeter to Calculate Acreage. - See Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240, cert. denied, 306 N.C. 559, 294 S.E.2d 371 (1982).

Annexation Proper. - Village essentially complied with the requirements of G.S. 160A-42 because the village used methods calculated to provide reasonably accurate results to determine the degree of land subdivision for purposes of G.S. 160A-36. Norwood v. Village of Sugar Mt., 193 N.C. App. 293, 667 S.E.2d 524 (2008), review denied, review dismissed, as moot, 363 N.C. 582, 682 S.E.2d 386 (2009).

.

The annexation statutes are not taxation statutes, nor are they retrospective taxation statutes. Little Red School House, Ltd. v. City of Greensboro, 71 N.C. App. 332, 322 S.E.2d 195 (1984), cert. denied and appeal dismissed, 313 N.C. 514, 329 S.E.2d 392 (1985).

Tests as to Urban Development to Be Applied to Whole Annexation Area. - The tests to determine whether an area is developed for urban purposes must be applied to the annexation area as a whole. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978).

Micro Approach Calculations Meet Urbanization Test. - Town met the urbanization test for annexation, where the town used a "micro approach" whereby it determined the number of dwelling units in each census block within the area to be annexed, then determined the average family size therein, then multiplied the number of dwelling units in each census block by the average family size to calculate the estimated population of each block, and finally added the block numbers together to produce the population estimate. Williams v. Town of Kernersville, 129 N.C. App. 734, 500 S.E.2d 770, cert. denied, 349 N.C. 241, 516 S.E.2d 611 (1998).

Evidence Not Admissible to Challenge City's Methodology. - Where petitioners challenged a city annexation ordinances, the trial court properly ruled that their spreadsheets could not be offered to show that the city's methodology was not calculated to provide reasonably accurate results, as required by G.S. 160A-54, because they presented no expert testimony about the spreadsheets, and testimony of the city's principal planner was insufficient to establish a foundation for their admissibility. Brown v. City of Winston-Salem, 176 N.C. App. 497, 626 S.E.2d 747 (2006).

Census figures are more reliable than any formula that alters the figures by arbitrarily assuming vacancy rates and adjusting for dwelling unit size. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

This section contains no requirement regarding the use of final census data and there is no judicially imposed requirement. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

Although this statute specifies the use of federal census data, it does not require the use of final rather than preliminary census data. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

Applicability of Error Margins to Calculations Under § 160A-48(c). - The five percent error margins allowed in subdivisions (2) and (3) of this section apply exclusively to calculations made by the municipality for purposes of establishing compliance with the population and subdivision tests contained within the alternative standards prescribed by G.S. 160A-48(c). Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980).

The language of this section is free from ambiguity and represents a legislative determination that margins of error should be allowed with respect to the calculations made by a municipality to establish compliance with the population and subdivision tests of G.S. 160A-48(c), but not with respect to the calculations made to establish compliance with the use test of G.S. 160A-48(c). Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980).

Method of Calculating Number of Lots. - A municipality is not tied to any particular method of calculating the number of lots so long as the method utilized is calculated to provide reasonably accurate results. Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980).

The fact that different methods of lot calculation have been used by the city in past annexations is of no import where the record establishes that the method utilized in the annexation under scrutiny complies with the requirements of this section. Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980).

It is eminently reasonable for the city to follow actual use and ownership patterns instead of artificial patterns of subdivision in determining the number of lots in the area to be annexed. Such method of lot counting was calculated to provide reasonably accurate results as required by this section. Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980).

Petitioners Failed to Meet Burden to Show Inaccuracy of City's Methodology. - Petitioners challenging a city's annexation ordinances failed to show the city misclassified the lots to be annexed or that the county tax maps it relied on were inaccurate. As they offered no reliable evidence that the city's methodology was inaccurate and not calculated to provide reasonably accurate results, as required by G.S. 106A-54, the ordinances were properly deemed valid. Brown v. City of Winston-Salem, 176 N.C. App. 497, 626 S.E.2d 747 (2006).


§ 160A-58.64. Referendum prior to involuntary annexation ordinance.

  1. After the adoption of the resolution of intent under this Part, the municipality shall place the question of annexation on the ballot. The municipal governing board shall notify the appropriate county board or boards of elections of the adoption of the resolution of intent and provide a legible map and clear written description of the proposed annexation area.
  2. In accordance with G.S. 160A-58.55, the municipal governing board shall adopt a resolution setting the date for the referendum and so notify the appropriate county board or boards of elections.
  3. The county board or boards of elections shall cause legal notice of the election to be published. That notice shall include the general statement of the referendum. The referendum shall be conducted, returned, and the results declared as in other municipal elections in the municipality. Only registered voters of the proposed annexation area shall be allowed to vote on the referendum.
  4. The referendum of any number of proposed involuntary annexations may be submitted at the same election; but as to each proposed involuntary annexation, there shall be an entirely separate ballot question.
  5. The ballots used in a referendum shall submit the following proposition:
  6. If less than a majority of the votes cast on the referendum are for annexation, the municipal governing body may not proceed with the adoption of the annexation ordinance or begin a separate involuntary annexation process with respect to that proposed annexation area for at least 36 months from the date of the referendum. If a majority of the votes cast on the referendum are for annexation, the municipal governing body may proceed with the adoption of the annexation ordinance under G.S. 160A-58.55.

"[ ] FOR [ ] AGAINST

The annexation of (clear description of the proposed annexation area)."

History

(2012-11, s. 1; 2014-115, s. 15.1.)

Effect of Amendments. - Session Laws 2014-115, s. 15.1, effective August 11, 2014, substituted "G.S. 160A-58.55" for "G.S. 163-58.55" in subsection (b).


§§ 160A-58.65 through 160A-58.89: Reserved for future codification purposes.

PART 8. RECORDING AND REPORTING.

§ 160A-58.90. Recording and Reporting.

  1. Annexations made under this Article shall be recorded and reported in the same manner as under G.S. 160A-29.
  2. To be enforceable, any written agreement with a person having a freehold interest in real property regarding annexation shall be recorded in the county register of deeds office in which the real property lies.

History

(2011-396, s. 11.)

Editor's Note. - Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."


ARTICLE 5. Form of Government.

Part 1. General Provisions.

Sec.

Part 2. Mayor and Council.

Part 3. Organization and Procedures of the Council.

Part 3A. Ethics Codes and Education Programs.

Part 4. Modification of Form of Government.

PART 1. GENERAL PROVISIONS.

§ 160A-59. Qualifications for elective office.

All city officers elected by the people shall possess the qualifications set out in Article VI of the Constitution. In addition, when the city is divided into electoral districts for the purpose of electing members of the council, council members shall reside in the district they represent. When any elected city officer ceases to meet all of the qualifications for holding office pursuant to the Constitution, or when a council member ceases to reside in an electoral district that he was elected to represent, the office is ipso facto vacant.

History

(1973, c. 609.)

Local Modification. - City of Roanoke Rapids: 1995, c. 34, s. 1; town of Tarboro: 1995, c. 73, s. 3.2.

§ 160A-60. Qualifications for appointive office.

Residence within a city shall not be a qualification for or prerequisite to appointment to any city office not filled by election of the people, unless the charter or an ordinance provides otherwise. City councils shall have authority to fix qualifications for appointive offices, but shall have no authority to waive qualifications for appointive offices fixed by charters or general laws.

History

(1870-1, c. 24, s. 3; Code, s. 3796; Rev., s. 2941; C.S., s. 2646; 1951, c. 24; 1969, c. 134, s. 1; 1971, c. 698, s. 1.)

Editor's Note. - Session Laws 2012-11, s. 5, effective July 1, 2012, and applicable to any annexation ordinance adopted under Part 7 of Article 4A of Chapter 160A of the General Statutes on or after July 1, 2012, provided that "G.S. 160A-60(a) reads as rewritten" when, in fact, the text that was set out in the act matched that of G.S. 160A-58.60(a). At the direction of the Revisor of Statutes, the amendment was not implemented. Subsequently, Session Laws 2013-410, s. 15, amended the introductory language of Session Laws 2012-11, s. 5, so that it now identifies G.S. 160A-58.60 as the section being amended.

CASE NOTES

Editor's Note. - Some of the cases below were decided under former similar provisions.

Former G.S. 160-25 dealt merely with the qualification of the appointee and not with the character of the office. State v. Hord, 264 N.C. 149, 141 S.E.2d 241 (1965).

Vacating Office for Preexisting Impediment. - While there can be no serious doubt of the right of a corporate body to vacate the seat of a corporate officer for adequate causes arising subsequent to taking his seat, there has been no precedent for depriving a member of his place by the action of a municipal body of which he is a member for any preexisting impediment affecting his capacity to hold the office. Ellison v. Aldermen of Raleigh, 89 N.C. 125 (1883).

Right to Declaratory Judgment. - When the rights of parties were affected by provisions similar to this section and other statutes, to the end that they might be relieved "from uncertainty and insecurity" such parties were entitled to have the applicable statutes construed and their rights declared, and a real controversy existed between the parties. Bland v. City of Wilmington, 278 N.C. 657, 180 S.E.2d 813 (1971).

City Charter Prescribing Qualifications of Firemen Not Repealed by Former Provisions. - Former G.S. 160-25 and 160-115.1 did not repeal the provisions of a city's charter prescribing the qualifications of its firemen. Bland v. City of Wilmington, 278 N.C. 657, 180 S.E.2d 813 (1971).


§ 160A-61. Oath of office.

Every person elected by the people or appointed to any city office shall, before entering upon the duties of the office, take and subscribe the oath of office prescribed in Article VI, § 7 of the Constitution. Oaths of office shall be administered by some person authorized by law to administer oaths, and shall be filed with the city clerk.

History

(R.C., c. 111, s. 12; Code, s. 3799; Rev., s. 2920; C.S., s. 2628; 1971, c. 698, s. 1.)

§ 160A-62. Officers to hold over until successors qualified.

All city officers, whether elected or appointed, shall continue to hold office until their successors are chosen and qualified. This section shall not apply when an office or position has been abolished, when an appointed officer or employee has been discharged, or when an elected officer has been removed from office.

History

(R.C., c. 111, s. 8; Code, s. 3792; Rev., s. 2943; C.S., s. 2648; 1971, c. 698, s. 1.)

CASE NOTES

Liability for Negligent Obstructions. - The city did not owe a special duty to a cable television repairman who was electrocuted by a fallen unmarked power line, and as plaintiff did not allege any intentional misconduct on the part of the city which would survive application of the public duty doctrine, the city was immune to liability. Vanasek v. Duke Power Co., 132 N.C. App. 335, 511 S.E.2d 41 (1999).

Cited in Pritchard v. Elizabeth City, 318 N.C. App. 417, 344 S.E.2d 821 (1986).


§ 160A-63. Vacancies.

A vacancy that occurs in an elective office of a city shall be filled by appointment of the city council. If the term of the office expires immediately following the next regular city election, or if the next regular city election will be held within 90 days after the vacancy occurs, the person appointed to fill the vacancy shall serve the remainder of the unexpired term. Otherwise, a successor shall be elected at the next regularly scheduled city election that is held more than 90 days after the vacancy occurs, and the person appointed to fill the vacancy shall serve only until the elected successor takes office. The elected successor shall then serve the remainder of the unexpired term. If the number of vacancies on the council is such that a quorum of the council cannot be obtained, the mayor shall appoint enough members to make up a quorum, and the council shall then proceed to fill the remaining vacancies. If the number of vacancies on the council is such that a quorum of the council cannot be obtained and the office of mayor is vacant, the Governor may fill the vacancies upon the request of any remaining member of the council, or upon the petition of any five registered voters of the city. Vacancies in appointive offices shall be filled by the same authority that makes the initial appointment. This section shall not apply to vacancies in cities that have not held a city election, levied any taxes, or engaged in any municipal functions for a period of five years or more.

In cities whose elections are conducted on a partisan basis, a person appointed to fill a vacancy in an elective office shall be a member of the same political party as the person whom he replaces if that person was elected as the nominee of a political party.

History

(R.C., c. 111, ss. 9, 10; Code, ss. 3793, 3794; Rev., ss. 2921, 2931; C.S., ss. 2629, 2631; 1971, c. 698, s. 1; 1973, c. 426, s. 11; 1983, c. 827, s. 1.)

Local Modification. - Wilmington/New Hanover County Consolidated Government: 1987, c. 643; city of Elizabeth City: 2001-227, s. 1; city of Lumberton: 1983 (Reg. Sess., 1984), c. 1009; city of Monroe: 2000-35, s.1; city of Roanoke Rapids: 1995, c. 34, s. 1; town of Carrboro: 2007-270, s. 1; 2013-113, s. 1; town of Connelly: 1989, c. 528, s. 1; town of Franklinton: 1993, c. 160, s. 1; town of Littleton: 2002-20, s. 1; town of Mills River: 2003-242, s. 3.5; town of Mount Gilead: 2015-234, s. 1; town of Norwood: 2018-106, s. 1; town of Tarboro: 1995, c. 73, s. 1.

Opinions of Attorney General

This Section Provides for Filling Vacancy Created by Official's Departure. - Upon arriving at a determination that an elected town official has removed his residence to another electoral jurisdiction, a town council, pursuant to the provisions of this section, may fill the vacancy created by the official's departure. See opinion of Attorney General to Mr. John C. Wessell, III, Town Attorney, Surf City (Pender County), 58 N.C.A.G. 28 (1988).

§ 160A-64. Compensation of mayor and council.

  1. The council may fix its own compensation and the compensation of the mayor and any other elected officers of the city by adoption of the annual budget ordinance, but the salary of an elected officer other than a member of the council may not be reduced during the then-current term of office unless he agrees thereto. The mayor, councilmen, and other elected officers are entitled to reimbursement for actual expenses incurred in the course of performing their official duties at rates not in excess of those allowed to other city officers and employees, or to a fixed allowance, the amount of which shall be established by the council, for travel and other personal expenses of office; provided, any fixed allowance so established during a term of office shall not be increased during such term of office.
  2. All charter provisions in effect as of January 1, 1972, fixing the compensation or allowances of any city officer or employee are repealed, but persons holding office or employment on January 1, 1972, shall continue to receive the compensation and allowances then prescribed by law until the council provides otherwise in accordance with this section or G.S. 160A-162.

History

(1969, c. 181, s. 1; 1971, c. 698, s. 1; 1973, c. 426, s. 12; c. 1145; 1979, 2nd Sess., c. 1247, s. 1.)

§ 160A-64.1. Withholding compensation; money judgment against council member.

In addition to any other enforcement available, the finance officer of a city that obtains a final judgment awarding monetary damages against an elected or appointed member of the city council, either individually or jointly, may enforce that final judgment using any of the remedies set forth in G.S. 105-366(b) or the procedure for attachment and garnishment set forth in G.S. 105-368 as if final judgment awarding monetary damages were delinquent taxes and that finance officer were the tax collector. The provision of G.S. 105-368(a) that limits the amount of compensation that may be garnished to not more than ten percent (10%) for any one pay period shall not apply to this section.

History

(2014-40, s. 1.)

Cross References. - As to withholding of compensation to enforce money judgments against members of county boards of commissioners, see G.S. 153A-30.

Editor's Note. - Session Laws 2014-40, s. 3, made this section effective October 1, 2014, and applicable to final judgments awarding monetary damages that are unsatisfied or entered on or after that date.

§ 160A-65: Repealed by Session Laws 1975, c. 514, s. 17.

PART 2. MAYOR AND COUNCIL.

§ 160A-66. Composition of council.

Unless otherwise provided by its charter, each city shall be governed by a mayor and a council of three members, who shall be elected from the city at large for terms of two years.

History

(1971, c. 698, s. 1.)

§ 160A-67. General powers of mayor and council.

Except as otherwise provided by law, the government and general management of the city shall be vested in the council. The powers and duties of the mayor shall be such as are conferred upon him by law, together with such other powers and duties as may be conferred upon him by the council pursuant to law. The mayor shall be recognized as the official head of the city for the purpose of service of civil process, and for all ceremonial purposes.

History

(1971, c. 698, s. 1.)

CASE NOTES

City council, and not the city, was responsible for the government and general management of the city, and, thus, had final policymaking authority; accordingly, the city could not be held liable for its alleged retaliation against the storage business regarding the billing of it for water and sewer services as the entity liable had to be found liable for its policy or custom that violated the rights of another and the city was not responsible for making policy or customs. United States Cold Storage, Inc. v. City of Lumberton, 34 Fed. Appx. 429 (4th Cir. 2002).

Cited in Carolina Water Serv., Inc. v. Town of Atlantic Beach, 121 N.C. App. 23, 464 S.E.2d 317 (1995); Concrete Mach. Co. v. City of Hickory, 134 N.C. App. 91, 517 S.E.2d 155 (1999).


PART 3. ORGANIZATION AND PROCEDURES OF THE COUNCIL.

§ 160A-68. Organizational meeting of council.

  1. The council may fix the date and time of its organizational meeting. The organizational meeting may be held at any time after the results of the municipal election have been officially determined and published pursuant to Subchapter IX of Chapter 163 of the General Statutes but not later than the date and time of the first regular meeting of the council in December after the results of the municipal election have been certified pursuant to that Subchapter. If the council fails to fix the date and time of its organizational meeting, then the meeting shall be held on the date and at the time of the first regular meeting in December after the results of the municipal election have been certified pursuant to Subchapter IX of Chapter 163 of the General Statutes.
  2. At the organizational meeting, the newly elected mayor and councilmen shall qualify by taking the oath of office prescribed in Article VI, Section 7 of the Constitution. The organization of the council shall take place notwithstanding the absence, death, refusal to serve, failure to qualify, or nonelection of one or more members, but at least a quorum of the members must be present.
  3. All local acts or provisions of city charters which prescribe a particular meeting day or date for the organizational meeting of a council are hereby repealed.

History

(1971, c. 698, s. 1; 1973, c. 426, s. 13; c. 607; 1979, c. 168; 1979, 2nd Sess., c. 1247, s. 2; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.)

Re-recodification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled 'Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification, in consultation with the State Ethics Commission, the State Board of Elections, the Secretary of State, and the new Bipartisan State Board of Elections and Ethics Enforcement. Pursuant to this authority, the Revisor of Statutes substituted "Article 27 of Chapter 163A" for "Subchapter IX of Chapter 163" twice in subsection (a).

Session Laws 2018-146, ss. 3.1(a), (b) and 6.1, repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the change to the references in subsection (a).

Opinions of Attorney General

For discussion of legal impediments which prohibit employers from disclosing personal information about their employees, see opinion of Attorney General to Bryan E. Beatty, Inspector General, North Carolina Department of Justice, 1998 N.C.A.G. 49 (12/1/98).

§ 160A-69. Mayor to preside over council.

The mayor shall preside at all council meetings, but shall have the right to vote only when there are equal numbers of votes in the affirmative and in the negative. In a city where the mayor is elected by the council from among its membership, and the city charter makes no provision as to the right of the mayor to vote, he shall have the right to vote as a council member on all matters before the council, but shall have no right to break a tie vote in which he participated.

History

(1971, c. 698, s. 1; 1979, 2nd Sess., c. 1247, s. 3.)

Local Modification. - Town of Lewisville: 1991, c. 116, s. 1.

CASE NOTES

Power of Mayor to Vote. - Ordinarily, the office of mayor is of an executive or administrative character, and he is not permitted to vote except in cases where it is especially provided. Markham v. Simpson, 175 N.C. 135, 95 S.E. 106 (1918), decided under prior law.


§ 160A-70. Mayor pro tempore; disability of mayor.

At the organizational meeting, the council shall elect from among its members a mayor pro tempore to serve at the pleasure of the council. A councilman serving as mayor pro tempore shall be entitled to vote on all matters and shall be considered a councilman for all purposes, including the determination of whether a quorum is present. During the absence of the mayor, the council may confer upon the mayor pro tempore any of the powers and duties of the mayor. If the mayor should become physically or mentally incapable of performing the duties of his office, the council may by unanimous vote declare that he is incapacitated and confer any of his powers and duties on the mayor pro tempore. Upon the mayor's declaration that he is no longer incapacitated, and with the concurrence of a majority of the council, the mayor shall resume the exercise of his powers and duties. In the event both the mayor and the mayor pro tempore are absent from a meeting, the council may elect from its members a temporary chairman to preside in such absence.

History

(1971, c. 698, s. 1; 1979, 2nd Sess., c. 1247, s. 4.)

Local Modification. - City of Morganton: 1998-81, s. 2; city of Reidsville: 1989 (Reg. Sess., 1990), c. 957, s. 1; 1993, c. 306, s. 1 (subject to preclearance); town of Autryville: 1991, c. 384, s. 1; town of Elkin: 1987, c. 740, s. 1; town of Franklinton: 1993, c. 160, s. 1; town of Mount Holly: 1995 (Reg. Sess., 1996), c. 620, s. 1; town of Walnut Cove: 1991, c. 447, s. 1.

§ 160A-71. Regular and special meetings; recessed and adjourned meetings; procedure.

  1. The council shall fix the time and place for its regular meetings. If no action has been taken fixing the time and place for regular meetings, a regular meeting shall be held at least once a month at 10:00 A.M. on the first Monday of the month.
    1. The mayor, the mayor pro tempore, or any two members of the council may at any time call a special council meeting by signing a written notice stating the time and place of the meeting and the subjects to be considered. The notice shall be delivered to the mayor and each councilman or left at his usual dwelling place at least six hours before the meeting. Only those items of business specified in the notice may be transacted at a special meeting, unless all members are present or have signed a written waiver of notice. In addition to the procedures set out in this subsection or any city charter, a person or persons calling a special meeting of a city council shall comply with the notice requirements of Article 33C of General Statutes Chapter 143. (b) (1)  The mayor, the mayor pro tempore, or any two members of the council may at any time call a special council meeting by signing a written notice stating the time and place of the meeting and the subjects to be considered. The notice shall be delivered to the mayor and each councilman or left at his usual dwelling place at least six hours before the meeting. Only those items of business specified in the notice may be transacted at a special meeting, unless all members are present or have signed a written waiver of notice. In addition to the procedures set out in this subsection or any city charter, a person or persons calling a special meeting of a city council shall comply with the notice requirements of Article 33C of General Statutes Chapter 143.
    2. Special meetings may be held at any time when the mayor and all members of the council are present and consent thereto, or when those not present have signed a written waiver of notice.
    3. During any regular meeting, or any duly called special meeting, the council may call or schedule a special meeting, provided that the motion or resolution calling or scheduling any such special meeting shall specify the time, place and purpose or purposes of such meeting and shall be adopted during an open session.
  2. Any regular or duly called special meeting may be recessed to reconvene at a time and place certain, or may be adjourned to reconvene at a time and place certain, by the council.
  3. The council may adopt its own rules of procedure, not inconsistent with the city charter, general law, or generally accepted principles of parliamentary procedure.

History

(1917, c. 136, subch. 13, s. 1; C.S., s. 2822; 1971, c. 698, s. 1; 1973, c. 426, s. 14; 1977, 2nd Sess., c. 1191, s. 7; 1979, 2nd Sess., c. 1247, s. 5; 1989, c. 770, s. 37.)

Local Modification. - City of Winston-Salem: 1927, c. 232, s. 13, as amended by 1963, c. 888; 2011-130.

Legal Periodicals. - For survey of 1978 administrative law, see 57 N.C.L. Rev. 831 (1979).

§ 160A-72. Minutes to be kept; ayes and noes.

Full and accurate minutes of the council proceedings shall be kept, and shall be open to the inspection of the public. The results of each vote shall be recorded in the minutes, and upon the request of any member of the council, the ayes and noes upon any question shall be taken.

History

(1917, c. 136, subch. 13, s. 1; C.S., s. 2822; 1971, c. 698, s. 1; 1973, c. 426, s. 15.)

CASE NOTES

Requirement that a full and accurate journal of the proceedings be kept is merely directory and not a condition precedent to the validity of a contract regularly entered into by the municipality. Town of Graham v. Karpark Corp., 194 F.2d 616 (4th Cir. 1952), decided under former § 160-269.

§ 160A-73: Repealed by Session Laws 1971, c. 896, s. 16.

Editor's Note. - The repealed section had been enacted by Session Laws 1971, c. 698, s. 1, and required public legislative sessions of the council and that the results of each vote be recorded in the minutes.

§ 160A-74. Quorum.

  1. A majority of the actual membership of the council plus the mayor, excluding vacant seats, shall constitute a quorum. A member who has withdrawn from a meeting without being excused by majority vote of the remaining members present shall be counted as present for purposes of determining whether or not a quorum is present.
  2. Any member present by means of simultaneous communication in accordance with G.S. 166A-19.24 shall be counted as present for the purposes of whether a quorum is present only during the period while simultaneous communication is maintained for that member.

History

(1917, c. 136, subch. 13, s. 1; C.S., s. 2821; 1971, c. 698, s. 1; 1975, c. 664, s. 5; 1979, 2nd Sess., c. 1247, s. 6; 2020-3, s. 4.31(f).)

Local Modification. - City of Roanoke Rapids: 1995, c. 34, s. 1.

Editor's Note. - Session Laws 2020-3, s. 4.31(j), made subsection (b) of this section, as added by Session Laws 2020-3, s. 4.31(f), effective May 4, 2020, and applicable throughout the duration of any declaration of emergency issued under G.S. 166A-19.20 in effect on or after that date, and further provides: "The actions of any public body in an open meeting conducted via simultaneous communication between March 10, 2020, and the effective date of this section are not deemed invalid due to the use of simultaneous communication to conduct that open meeting."

Session Laws 2020-3, s. 5, is a severability clause.

Effect of Amendments. - Session Laws 2020-3, s. 4.31(f), added subsection (b). For effective date and applicability, see editor's note.

§ 160A-75. Voting.

  1. No member shall be excused from voting except upon matters involving the consideration of the member's own financial interest or official conduct or on matters on which the member is prohibited from voting under G.S. 14-234 or G.S. 160D-109. In all other cases except votes taken under G.S. 160D-601, a failure to vote by a member who is physically present in the council chamber, or who has withdrawn without being excused by a majority vote of the remaining members present, shall be recorded as an affirmative vote. The question of the compensation and allowances of members of the council is not a matter involving a member's own financial interest or official conduct.
  2. Notwithstanding subsection (a) of this section, a vote or failure to vote by any member present by means of simultaneous communication in accordance with G.S. 166A-19.24 shall be treated as if the member were physically present only during the period while simultaneous communication is maintained for that member.
  3. An affirmative vote equal to a majority of all the members of the council not excused from voting on the question in issue, including the mayor's vote in case of an equal division, shall be required to adopt an ordinance, take any action having the effect of an ordinance, authorize or commit the expenditure of public funds, or make, ratify, or authorize any contract on behalf of the city. In addition, no ordinance nor any action having the effect of any ordinance, except an ordinance on which a public hearing must be held pursuant to G.S. 160D-601 before the ordinance may be adopted, may be finally adopted on the date on which it is introduced except by an affirmative vote equal to or greater than two thirds of all the actual membership of the council, excluding vacant seats and not including the mayor unless the mayor has the right to vote on all questions before the council. For purposes of this section, an ordinance shall be deemed to have been introduced on the date the subject matter is first voted on by the council.

History

(1917, c. 136, subch. 13, s. 1; C.S., s. 2821; 1971, c. 698, s. 1; 1973, c. 426, s. 16; 1979, 2nd Sess., c. 1247, s. 7; 1983, c. 696; 2001-409, s. 9; 2005-426, s. 5.1(a); 2013-126, s. 11; 2015-160, s. 5; 2019-111, s. 2.5(n); 2020-3, ss. 4.31(h), 4.33(a); 2020-25, s. 51(a), (b), (d).)

Local Modification. - City of Burlington: 2014-74, s. 1; city of Mebane: 2017-82, s. 1; city of New Bern: 2016-41, s. 1; town of Elon College: 1985, c. 109.

Editor's Note. - Session Laws 2001-409, s. 10, provides that prosecutions for offenses committed before the effective dates of the provisions of the act [Session Laws 2001-409 is effective July 1, 2002] are not abated or affected by the act, and the statutes that would be applicable but for the act remain applicable to those prosecutions.

Session Laws 2015-160, s. 6, made the amendment to this section by Session Laws 2015-160, s. 5, applicable to zoning ordinance changes initiated on or after August 1, 2015.

Session Laws 2019-111, s. 2.8, is a severability clause.

Session Laws 2019-111, s. 3.2, as amended by Session Laws 2020-3, s. 4.33(a), made the amendment of this section by Session Laws 2019-111, s. 2.5(n), effective August 1, 2021, and applicable to local government development regulation decisions made on or after that date, and further provided that: "Part II of this act clarifies and restates the intent of existing law and applies to ordinances adopted before, on, and after the effective date." Session Laws 2020-25, s. 51(a), (b), and (d), effective June 19, 2020, repealed Session Laws 2019-111, s. 3.2, and Session Laws 2020-3, s. 4.33(a), and provides: "Part II of S.L. 2019-111 is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:

"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or

"(2) July 1, 2021."

Session Laws 2020-3, s. 4.31(j), made subsection (b) of this section and the subsection (a) and (c) designations, as added by Session Laws 2020-3, s. 4.31(h), applicable throughout the duration of any declaration of emergency issued under G.S. 166A-19.20 in effect on or after that date, and further provides: "The actions of any public body in an open meeting conducted via simultaneous communication between March 10, 2020, and the effective date of this section are not deemed invalid due to the use of simultaneous communication to conduct that open meeting."

Session Laws 2020-3, s. 5, is a severability clause.

Effect of Amendments. - Session Laws 2005-426, s. 5.1(a), effective January 1, 2006, substituted "G.S. 14-234, 160A-381(d), or 160A-388(e1)" for "G.S. 14-234" in the first paragraph.

Session Laws 2013-126, s. 11, effective October 1, 2013, substituted "160A-388(e)(2)" for "160A-388(c1)" at the end of the first sentence in the first paragraph. For applicability, see Editor's note.

Session Laws 2015-160, s. 5, effective August 1, 2015, inserted "except votes taken under G.S. 160A-385" in the second sentence of the first paragraph. For applicability, see editor's note.

Session Laws 2019-111, s. 2.5(n), in the first paragraph, substituted "G.S. 14-234 or G.S. 160D-901" for "G.S. 14-234, 160A-381(d), or 160A-388(e)(2)" at the end of the first sentence, and substituted "G.S. 160D-601" for "G.S. 160A-385" near the beginning of the second sentence; and substituted "ordinance, except an ordinance on which a public hearing must be held pursuant to G.S. 160D-601 before the ordinance may be adopted, may" for "ordinance may" in the second sentence of the second paragraph. For effective date and applicability, see Editor's note.

Session Laws 2020-3, s. 4.31(h), effective January 1, 2021, added the subsections (a) and (c) designations to the existing provisions of the section; and added subsection (b). For applicability, see editor's note.

CASE NOTES

Personnel Policy Must Be Adopted with Formalities to Create Right. - In North Carolina to create property rights, a personnel policy must not merely be adopted, but must be adopted with the formalities necessary for it to rise to the level of an ordinance, and where plaintiff's only evidence as to personnel policy was an affidavit from the clerk of the board of commissioners stating that the personnel policy was "adopted" by the town board, the plaintiff was merely an at-will employee with no property interest in his employment and no procedural due process protections. Dunn v. Town of Emerald Isle, 722 F. Supp. 1309 (E.D.N.C. 1989), aff'd, 918 F.2d 955 (4th Cir. 1990).

Settlement of Annexation Disputes. - Settlements of annexation disputes under G.S. 160A-50(m) are not "actions having the effect of an ordinance" under G.S. 160A-75, but are a method of dispute resolution in the annexation process; therefore, there is no need to send the matter back to city council after a settlement is reached. Home Builders Ass'n of Fayetteville N.C. Inc. v. City of Fayetteville, 170 N.C. App. 625, 613 S.E.2d 521 (2005).

Cited in Sherrill v. Town of Wrightsville Beach, 81 N.C. App. 369, 344 S.E.2d 357 (1986); County of Lancaster v. Mecklenburg County, 334 N.C. 496, 434 S.E.2d 604 (1993).


§ 160A-76. Franchises; technical ordinances.

  1. No ordinance making a grant, renewal, extension, or amendment of any franchise shall be finally adopted until it has been passed at two regular meetings of the council, and no such grant, renewal, extension, or amendment shall be made otherwise than by ordinance.
  2. Any published technical code or any standards or regulations promulgated by any public agency may be adopted in an ordinance by reference subject to G.S. 143-138(e). A technical code or set of standards or regulations adopted by reference in a city ordinance shall have the force of law within the city. Official copies of all technical codes, standards, and regulations adopted by reference shall be maintained for public inspection in the office of the city clerk.

History

(1917, c. 136, subch. 13; C.S., s. 2823; 1963, c. 790; 1971, c. 698, s. 1; 1973, c. 426, s. 17.)

Local Modification. - City of Kinston: 2012-139, s. 2(a).

CASE NOTES

Cited in County of Wake v. N.C. Dep't of Env't, 155 N.C. App. 225, 573 S.E.2d 572 (2002), cert. dismissed, 357 N.C. 62, 579 S.E.2d 387 (2003).


§ 160A-77. Code of ordinances.

  1. Not later than July 1, 1974, each city having a population of 5,000 or more shall adopt and issue a code of its ordinances. The code may be reproduced by any method that gives legible and permanent copies, and may be issued as a securely bound book or books with periodic separately bound supplements, or as a loose-leaf book maintained by replacement pages. Supplements or replacement pages should be adopted and issued annually at least, unless no additions to or modifications of the code have been adopted by the council during the year. The code may consist of two separate parts, the "General Ordinances" and the "Technical Ordinances." The technical ordinances may be published as separate books or pamphlets, and may include ordinances regarding the construction of buildings, the installation of plumbing and electric wiring, the installation of cooling and heating equipment, the use of public utilities, buildings, or facilities operated by the city, the zoning ordinance, the subdivision control ordinance, the privilege license tax ordinance, and other similar technical ordinances designated as such by the council. The council may omit from the code designated classes of ordinances of limited interest or transitory nature, but the code should clearly describe the classes of ordinances omitted therefrom.
  2. The council may provide that one or more of the following classes of ordinances shall be codified by appropriate entries upon official map books to be retained permanently in the office of the city clerk or some other city office generally accessible to the public:
    1. Establishing or amending the boundaries of zoning districts;
    2. Designating the location of traffic control devices;
    3. Designating areas or zones where regulations are applied to parking, loading, bus stops, or taxicab stands;
    4. Establishing speed limits;
    5. Restricting or regulating traffic at certain times on certain streets, or to certain types, weights or sizes of vehicles;
    6. Designating the location of through streets, stop intersections, yield-right-of-way intersections, waiting lanes, one-way streets, or truck traffic routes; and
    7. Establishing regulations upon vehicle turns at designated locations.
  3. The council may provide that the classes of ordinances described in paragraphs (2) through (6) of subsection (b) above, and ordinances establishing rates for utility or other public enterprise services, or ordinances establishing fees of any nature, shall be codified by entry upon official lists or schedules of the regulations established by such ordinances, or schedules of such rates or fees, to be maintained in the office of the city clerk.
  4. It is the intent of this section to make uniform the law concerning the adoption of city codes. To this end, all charter provisions in conflict with this section in effect as of January 1, 1972, are expressly repealed, except to the extent that the charter makes adoption of a code mandatory, and no local act taking effect on or after January 1, 1972, shall be construed to repeal or amend this section in whole or in part unless it shall expressly so provide by specific reference.

History

(1971, c. 698, s. 1; 1979, 2nd Sess., c. 1247, ss. 8, 9.)

Local Modification. - City of Williamston: 1975, c. 420.

CASE NOTES

Burden of Proof. - Because a town failed to comply with its obligations under local ordinances and state law by failing to keep official zoning maps on record for public inspection, the appropriate remedy was to place the burden back on the town to establish the location and classification of zoning districts when a landowner began a nonconforming use. Shearl v. Town of Highlands, 236 N.C. App. 113, 762 S.E.2d 877 (2014).

Applied in Johnson v. Town of Longview, 37 N.C. App. 61, 245 S.E.2d 516 (1978).

Cited in In re Jacobs, 33 N.C. App. 195, 234 S.E.2d 639 (1977); Pinehurst Area Realty, Inc. v. Village of Pinehurst, 100 N.C. App. 77, 394 S.E.2d 251 (1990), review denied and appeal dismissed, 328 N.C. 92, 402 S.E.2d 417.


§ 160A-78. Ordinance book.

Effective January 1, 1972, each city shall file a true copy of each ordinance adopted on or after January 1, 1972, in an ordinance book separate and apart from the council's minute book. The ordinance book shall be appropriately indexed and maintained for public inspection in the office of the city clerk. Effective July 1, 1973, true copies of all ordinances that were adopted before January 1, 1972, and are still in effect shall be filed and indexed in the ordinance book. If the city has adopted and issued a code of ordinances in compliance with G.S. 160A-77, its ordinances shall be filed and indexed in the ordinance book until they are codified.

History

(1971, c. 698, s. 1.)

CASE NOTES

Burden of Proof. - Because a town failed to comply with its obligations under local ordinances and state law by failing to keep official zoning maps on record for public inspection, the appropriate remedy was to place the burden back on the town to establish the location and classification of zoning districts when a landowner began a nonconforming use. Shearl v. Town of Highlands, 236 N.C. App. 113, 762 S.E.2d 877 (2014).

Applied in Johnson v. Town of Longview, 37 N.C. App. 61, 245 S.E.2d 516 (1978).

Cited in Lewis v. White, 287 N.C. 625, 216 S.E.2d 134 (1975).


§ 160A-79. Pleading and proving city ordinances.

  1. In all civil and criminal cases a city ordinance that has been codified in a code of ordinances adopted and issued in compliance with G.S. 160A-77 must be pleaded by both section number and caption. In all civil and criminal cases a city ordinance that has not been codified in a code of ordinances adopted and issued in compliance with G.S. 160A-77 must be pleaded by its caption. In both instances, it is not necessary to plead or allege the substance or effect of the ordinance unless the ordinance has no caption and has not been codified.
  2. Any of the following shall be admitted in evidence in all actions or proceedings before courts or administrative bodies and shall have the same force and effect as would an original ordinance:
    1. A city code adopted and issued in compliance with G.S. 160A-77, containing a statement that the code is published by order of the council.
    2. Copies of any part of an official map book maintained in accordance with G.S. 160A-77 and certified under seal by the city clerk as having been adopted by the council and maintained in accordance with its directions (the clerk's certificate need not be authenticated).
    3. A copy of an ordinance as set out in the minutes, code, or ordinance book of the council, certified under seal by the city clerk as a true copy (the clerk's certificate need not be authenticated).
    4. Copies of any official lists or schedules maintained in accordance with G.S. 160A-77 and certified under seal by the city clerk as having been adopted by the council and maintained in accordance with its directions (the clerk's certificate need not be authenticated).
  3. The burden of pleading and proving the existence of any modification or repeal of an ordinance, map, or code, a copy of which has been duly pleaded or admitted in evidence in accordance with this section, shall be upon the party asserting such modification or repeal. It shall be presumed that any portion of a city code that is admitted in evidence in accordance with this section has been codified in compliance with G.S. 160A-77, and the burden of pleading and proving to the contrary shall be upon the party seeking to obtain an advantage thereby.
  4. From and after the respective effective dates of G.S. 160A-77 and 160A-78, no city ordinance shall be enforced or admitted into evidence in any court unless it has been codified or filed and indexed in accordance with G.S. 160A-77 or 160A-78. It shall be presumed that an ordinance which has been properly pleaded and proved in accordance with this section has been codified or filed and indexed in accordance with G.S. 160A-77 or 160A-78, and the burden of pleading and proving to the contrary shall be upon the party seeking to obtain an advantage thereby.
  5. It is the intent of this section to make uniform the law concerning the pleading and proving of city ordinances. To this end, all charter provisions in conflict with this section in effect as of January 1, 1972, are expressly repealed, and no local act taking effect on or after January 1, 1972, shall be construed to repeal or amend this section in whole or in part unless it shall expressly so provide by specific reference.

History

(1917, c. 136, subch. 13, s. 14; C.S., s. 2825; 1959, c. 631; 1971, c. 698, s. 1; 1973, c. 426, s. 18; 1979, 2nd Sess., c. 1247, s. 10.)

Cross References. - As to application of this section to county ordinances, see G.S. 153A-50.

CASE NOTES

Editor's Note. - Some of the cases cited below were decided under former statutory provisions.

Judicial Notice Not Taken of Ordinance. - Courts of general jurisdiction and the Supreme Court will not take judicial notice of a municipal ordinance. High Point Surplus Co. v. Pleasants, 263 N.C. 587, 139 S.E.2d 892, rev'd on other grounds, 264 N.C. 650, 142 S.E.2d 697 (1965).

Warrant or Indictment to Set Out or Plead Ordinance. - Criminal prosecution for violation of a municipal ordinance cannot be maintained if the warrant or indictment on which it is based does not set out the ordinance or plead it in a manner permitted by statute. State v. Wiggs, 269 N.C. 507, 153 S.E.2d 84 (1967); State v. W.N.C. Pallet & Forest Prod. Co., 283 N.C. 705, 198 S.E.2d 433 (1973).

Excerpt of Ordinance in Indictment May Be Construed with Entire Ordinance. - The courts, when called upon to construe an excerpt from an ordinance set out in a bill of indictment, may interpret the excerpt correctly by construing it with the rest of the ordinance, certainly when the entire ordinance is before the court by stipulation of the parties. High Point Surplus Co. v. Pleasants, 263 N.C. 587, 139 S.E.2d 892, rev'd on other grounds, 264 N.C. 650, 142 S.E.2d 697 (1965).

Nonsuit for Variance Allowed. - Where a warrant charging disorderly conduct did not contain any allegations, specific or general, to the effect that the prosecution was for violation of a municipal ordinance, but the municipal ordinance was introduced in evidence and the trial proceeded as though defendant had been charged with violation of the ordinance, nonsuit for variance would be allowed. State v. Wiggs, 269 N.C. 507, 153 S.E.2d 84 (1967).

Best Evidence of Zoning Line's Location. - While an appellate court did not hold that the plain meaning of G.S. 160A-79 foreclosed other methods of proof, the court did agree that an official map or a copy thereof was the best evidence of a zoning line's location when a property owner began a nonconforming use. Shearl v. Town of Highlands, 236 N.C. App. 113, 762 S.E.2d 877 (2014).

Ordinance Properly Proved. - In a personal injury action for damages, the introduction of an ordinance of a town regulating the speed of trains backing upon the track, properly proven, would not be regarded as error on appeal, when it was proved that upon the evidence in the case the jury had found, upon a trial without legal error, that the negligence of defendant's employees proximately caused the personal injury for which damages were sought in the action. Parker v. Seaboard Air Line Ry., 181 N.C. 95, 106 S.E. 755 (1921).

Applied in In re Jacobs, 33 N.C. App. 195, 234 S.E.2d 639 (1977).

Cited in Johnson v. Town of Longview, 37 N.C. App. 61, 245 S.E.2d 516 (1978).


§ 160A-80. Power of investigation; subpoena power.

  1. The council shall have power to investigate the affairs of the city, and for that purpose may subpoena witnesses, administer oaths, and compel the production of evidence.
  2. If a person fails or refuses to obey a subpoena issued pursuant to this section, the council may apply to the General Court of Justice for an order requiring that its order be obeyed, and the court shall have jurisdiction to issue these orders after notice to all proper parties. No testimony of any witness before the council pursuant to a subpoena issued in exercise of the power conferred by this section may be used against him on the trial of any civil or criminal action other than a prosecution for false swearing committed on the examination. If any person, while under oath at an investigation by the council, willfully swears falsely, he is guilty of a Class 1 misdemeanor.
  3. Repealed by Session Laws 1991, c. 512, s. 1, effective July 2, 1991.

History

(1971, c. 698, s. 1; 1991, c. 512, s. 1; 1993, c. 539, s. 1083; 1994, Ex. Sess., c. 24, s. 14(c).)

CASE NOTES

Radio and Television Coverage. - Though radio and television coverage may not be necessary to the conduct of investigative hearings by municipalities, it does not follow that it is unreasonable to permit such coverage; conversely, radio and television coverage is reasonably consistent with the concept of a fully informed public, a concept which is receiving ever increasing support as the public becomes more fully informed. Leak v. High Point City Council, 25 N.C. App. 394, 213 S.E.2d 386 (1975).


§ 160A-81. Conduct of public hearings.

Public hearings may be held at any place within the city or within the county in which the city is located. The council may adopt reasonable rules governing the conduct of public hearings, including but not limited to rules (i) fixing the maximum time allotted to each speaker, (ii) providing for the designation of spokesmen for groups of persons supporting or opposing the same positions, (iii) providing for the selection of delegates from groups of persons supporting or opposing the same positions when the number of persons wishing to attend the hearing exceeds the capacity of the hall, and (iv) providing for the maintenance of order and decorum in the conduct of the hearing.

The council may continue any public hearing without further advertisement. If a public hearing is set for a given date and a quorum of the council is not then present, the hearing shall be continued until the next regular council meeting without further advertisement.

History

(1971, c. 698, s. 1.)

CASE NOTES

Application to Annexation Hearings. - Nothing in this section indicates that its application should be limited to public hearings not concerning annexation. Thrash v. City of Asheville, 115 N.C. App. 310, 444 S.E.2d 482 (1994).

Radio and Television Coverage. - Though radio and television coverage may not be necessary to the conduct of investigative hearings by municipalities, it does not follow that it is unreasonable to permit such coverage; conversely, radio and television coverage is reasonably consistent with the concept of a fully informed public, a concept which is receiving ever increasing support as the public becomes more fully informed. Leak v. High Point City Council, 25 N.C. App. 394, 213 S.E.2d 386 (1975).


§ 160A-81.1. Public comment period during regular meetings.

The council shall provide at least one period for public comment per month at a regular meeting of the council. The council may adopt reasonable rules governing the conduct of the public comment period, including, but not limited to, rules (i) fixing the maximum time allotted to each speaker, (ii) providing for the designation of spokesmen for groups of persons supporting or opposing the same positions, (iii) providing for the selection of delegates from groups of persons supporting or opposing the same positions when the number of persons wishing to attend the hearing exceeds the capacity of the hall, and (iv) providing for the maintenance of order and decorum in the conduct of the hearing. The council is not required to provide a public comment period under this section if no regular meeting is held during the month.

History

(2005-170, s. 3.)

§ 160A-82. Applicability of Part.

Nothing in this Part, except G.S. 160A-77, 160A-78 and 160A-79, shall be construed to repeal any portion of any city charter inconsistent with anything contained herein.

History

(1971, c. 698, s. 1.)

§§ 160A-83 through 160A-85: Reserved for future codification purposes.

PART 3A. ETHICS CODES AND EDUCATION PROGRAMS.

§ 160A-86. Local governing boards' code of ethics.

  1. Governing boards of cities, counties, local boards of education, unified governments, sanitary districts, and consolidated city-counties shall adopt a resolution or policy containing a code of ethics to guide actions by the governing board members in the performance of the member's official duties as a member of that governing board.
  2. The resolution or policy required by subsection (a) of this section shall address at least all of the following:
    1. The need to obey all applicable laws regarding official actions taken as a board member.
    2. The need to uphold the integrity and independence of the board member's office.
    3. The need to avoid impropriety in the exercise of the board member's official duties.
    4. The need to faithfully perform the duties of the office.
    5. The need to conduct the affairs of the governing board in an open and public manner, including complying with all applicable laws governing open meetings and public records.

History

(2009-403, s. 1.)

Editor's Note. - Session Laws 2009-403, s. 1, enacted this section as G.S. 160A-83. It has been renumbered as this section at the direction of the Revisor of Statutes.


§ 160A-87. Ethics education program required.

  1. All members of governing boards of cities, counties, local boards of education, unified governments, sanitary districts, and consolidated city-counties shall receive a minimum of two clock hours of ethics education within 12 months after initial election or appointment to the office and again within 12 months after each subsequent election or appointment to the office.
  2. The ethics education shall cover laws and principles that govern conflicts of interest and ethical standards of conduct at the local government level.
  3. The ethics education may be provided by the North Carolina League of Municipalities, North Carolina Association of County Commissioners, North Carolina School Boards Association, the School of Government at the University of North Carolina at Chapel Hill, or other qualified sources at the choice of the governing board.
  4. The clerk to the governing board shall maintain a record verifying receipt of the ethics education by each member of the governing board.

History

(2009-403, s. 1.)

Editor's Note. - Session Laws 2009-403, s. 1, enacted this section as G.S. 160A-84. It has been renumbered as this section at the direction of the Revisor of Statutes.

PART 4. MODIFICATION OF FORM OF GOVERNMENT.

§ 160A-101. Optional forms.

Any city may change its name or alter its form of government by adopting any one or combination of the options prescribed by this section:

  1. Name of the corporation:
  2. Style of the corporation:
  3. Style of the governing board:
  4. Terms of office of members of the council:
  5. Number of members of the council:
  6. Mode of election of the council:
    1. All candidates shall be nominated and elected by all the qualified voters of the city.
    2. The city shall be divided into single-member electoral districts; council members shall be apportioned to the districts so that each member represents the same number of persons as nearly as possible, except for members apportioned to the city at large, if any; the qualified voters of each district shall nominate and elect candidates who reside in the district for seats apportioned to that district; and all the qualified voters of the city shall nominate and elect candidates apportioned to the city at large, if any.
    3. The city shall be divided into single-member electoral districts; council members shall be apportioned to the districts so that each member represents the same number of persons as nearly as possible, except for members apportioned to the city at large; and candidates shall reside in and represent the districts according to the apportionment plan adopted, but all candidates shall be nominated and elected by all the qualified voters of the city.
    4. The city shall be divided into electoral districts equal in number to one half the number of council seats; the council seats shall be divided equally into "ward seats" and "at-large seats," one each of which shall be apportioned to each district, so that each council member represents the same number of persons as nearly as possible; the qualified voters of each district shall nominate and elect candidates to the "ward seats"; candidates for the "at-large seats" shall reside in and represent the districts according to the apportionment plan adopted, but all candidates for "at-large" seats shall be nominated and elected by all the qualified voters of the city.
    5. The city shall be divided into single-member electoral districts; council members shall be apportioned to the districts so that each member represents the same number of persons as nearly as possible, except for members apportioned to the city at large, if any; in a nonpartisan primary, the qualified voters of each district shall nominate two candidates who reside in the district, and the qualified voters of the entire city shall nominate two candidates for each seat apportioned to the city at large, if any; and all candidates shall be elected by all the qualified voters of the city.
  7. Elections:
    1. Partisan. - Municipal primaries and elections shall be conducted on a partisan basis as provided in G.S. 163-291.
    2. Nonpartisan Plurality. - Municipal elections shall be conducted as provided in G.S. 163-292
    3. Nonpartisan Election and Runoff Election. - Municipal elections and runoff elections shall be conducted as provided in G.S. 163-293.
    4. Nonpartisan Primary and Election. - Municipal primaries and elections shall be conducted as provided in G.S. 163-294.
  8. Selection of mayor:
    1. The mayor shall be elected by all the qualified voters of the city for a term of not less than two years nor more than four years.
    2. The mayor shall be selected by the council from among its membership to serve at its pleasure.
  9. Form of government:
    1. The city shall operate under the mayor-council form of government in accordance with Part 3 of Article 7 of this Chapter.
    2. The city shall operate under the council-manager form of government in accordance with Part 2 of Article 7 of this Chapter and any charter provisions not in conflict therewith.

The name of the corporation may be changed to any name not deceptively similar to that of another city in this State.

The city may be styled a city, town, or village.

The governing board may be styled the board of commissioners, the board of aldermen, or the council.

Members of the council shall serve terms of office of either two or four years. All of the terms need not be of the same length, and all of the terms need not expire in the same year.

The council shall consist of any number of members not less than three nor more than 12.

If either of options b, c, d or e is adopted, the council shall divide the city into the requisite number of single-member electoral districts according to the apportionment plan adopted, and shall cause a map of the districts so laid out to be drawn up and filed as provided by G.S. 160A-22 and 160A-23. No more than one half of the council may be apportioned to the city at large. An initiative petition may specify the number of single-member electoral districts to be laid out, but the drawing of district boundaries and apportionment of members to the districts shall be done in all cases by the council.

Under option a, the mayor may be given the right to vote on all matters before the council, or he may be limited to voting only to break a tie. Under option b, the mayor has the right to vote on all matters before the council. In both cases the mayor has no right to break a tie vote in which he participated.

History

(1969, c. 629, s. 2; 1971, c. 698, s. 1; c. 1076, s. 1; 1973, c. 426, s. 19; c. 1001, ss. 1, 2; 1975, c. 19, s. 64; c. 664, s. 6; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.)

Local Modification. - (As to Part 4) Wilmington/New Hanover County Consolidated Government: 1987, c. 643; city of Bessemer City: 1991, c. 293; (as to Part 4) city of Greensboro: 2015-138, s. 2(b), as amended by 2015-264, s. 85.5.

Re-codification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled `Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification, in consultation with the State Ethics Commission, the State Board of Elections, the Secretary of State, and the new Bipartisan State Board of Elections and Ethics Enforcement. Pursuant to this authority, the Revisor of Statutes substituted "163A-1615" for "163-291" in sub-subdivision (7)a.; substituted "163A-1616" for "163-292" in sub-subdivision (7)b.; substituted "163A-1617" for "163-293" in sub-subdivision (7)c.; and substituted "163A-1618" for "163-294" in sub-subdivision (7)d.

Session Laws 2018-146, ss. 3.1(a), (b) and 6.1 repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the changes to references in subdivision (7).

Editor's Note. - Session Laws 1975, c. 664, which added references to option e. in subdivision (6), provided in s. 6(c): "Nothing contained in this section shall be construed to alter any existing form of government of any municipality."

CASE NOTES

Applied in Disher v. Weaver, 308 F. Supp. 2d 614 (M.D.N.C. 2004).

§ 160A-102. Amendment by ordinance.

By following the procedure set out in this section, the council may amend the city charter by ordinance to implement any of the optional forms set out in G.S. 160A-101. The council shall first adopt a resolution of intent to consider an ordinance amending the charter. The resolution of intent shall describe the proposed charter amendments briefly but completely and with reference to the pertinent provisions of G.S. 160A-101, but it need not contain the precise text of the charter amendments necessary to implement the proposed changes. At the same time that a resolution of intent is adopted, the council shall also call a public hearing on the proposed charter amendments, the date of the hearing to be not more than 45 days after adoption of the resolution. A notice of the hearing shall be published at least once not less than 10 days prior to the date fixed for the public hearing, and shall contain a summary of the proposed amendments. Following the public hearing, but not earlier than the next regular meeting of the council and not later than 60 days from the date of the hearing, the council may adopt an ordinance amending the charter to implement the amendments proposed in the resolution of intent.

The council may, but shall not be required to unless a referendum petition is received pursuant to G.S. 160A-103, make any ordinance adopted pursuant to this section effective only if approved by a vote of the people, and may by resolution adopted at the same time call a special election for the purpose of submitting the ordinance to a vote. The date fixed for the special election shall be the next date permitted under G.S. 163-287(a) that is more than 70 days after adoption of the ordinance.

Within 10 days after an ordinance is adopted under this section, the council shall publish a notice stating that an ordinance amending the charter has been adopted and summarizing its contents and effect. If the ordinance is made effective subject to a vote of the people, the council shall publish a notice of the election in accordance with G.S. 163-287, and need not publish a separate notice of adoption of the ordinance.

The council may not commence proceedings under this section between the time of the filing of a valid initiative petition pursuant to G.S. 160A-104 and the date of any election called pursuant to such petition.

History

(1969, c. 629, s. 2; 1971, c. 698, s. 1; 1973, c. 426, s. 20; 1979, 2nd Sess., c. 1247, s. 11; 2014-111, s. 18; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.)

Local Modification. - City of Greenville: 1989, c. 359, s. 1.

Re-codification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled `Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification, in consultation with the State Ethics Commission, the State Board of Elections, the Secretary of State, and the new Bipartisan State Board of Elections and Ethics Enforcement. Pursuant to this authority, the Revisor of Statutes substituted "163A-1592(a)" for "163-287(a)" in the second paragraph; and substituted "163A-1592" for "163-287" in the next to last paragraph.

Session Laws 2018-146, ss. 3.1(a), (b) and 6.1 repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the changes to references in this section.

Effect of Amendments. - Session Laws 2014-111, s. 18, effective August 6, 2014, substituted "the next date permitted under G.S. 163-287(a) that is more than 70 days" for "not more than 90 days" in the last sentence of the second paragraph.


§ 160A-103. Referendum on charter amendments by ordinance.

An ordinance adopted under G.S. 160A-102 that is not made effective upon approval by a vote of the people shall be subject to a referendum petition. Upon receipt of a referendum petition bearing the signatures and residence addresses of a number of qualified voters of the city equal to at least 10 percent of the whole number of voters who are registered to vote in city elections according to the most recent figures certified by the State Board of Elections or 5,000, whichever is less, the council shall submit an ordinance adopted under G.S. 160A-102 to a vote of the people. The date of the special election shall be fixed on a date permitted by G.S. 163-287. A referendum petition shall be addressed to the council and shall identify the ordinance to be submitted to a vote. A referendum petition must be filed with the city clerk not later than 30 days after publication of the notice of adoption of the ordinance.

History

(1969, c. 629, s. 2; 1971, c. 698, s. 1; 1979, 2nd Sess., c. 1247, ss. 13, 15; 2013-381, s. 10.27; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.)

Local Modification. - City of Wilson: 1989, c. 107, s. 1; Town of Castle Hayne: 2011-166 (effective upon certification of election results as to incorporation); town of Duck: 2001-394, s. 1; town of Eastover: 2007-267, s. 1 (contingent on preclearance under Section 5 of the Voting Rights Act of 1965); town of Rougemont: 2011-114, s. 1 (effective upon certification of election results as to incorporation); town of St. James: 1999-241, s. 1.

Re-codification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled `Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification, in consultation with the State Ethics Commission, the State Board of Elections, the Secretary of State, and the new Bipartisan State Board of Elections and Ethics Enforcement. Pursuant to this authority, the Revisor of Statutes substituted "Bipartisan State Board of Elections and Ethics Enforcement" for "State Board of Elections" and "163A-1592" for "163-287."

Session Laws 2018-146, ss. 3.1(a), (b) and 6.1 repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the changes to the references in this section.

Effect of Amendments. - Session Laws 2013-381, s. 10.27, effective January 1, 2014, substituted "on a date permitted by G.S. 163-287" for "at not more than 120 nor fewer than 60 days after receipt of the petition" at the end of the third sentence of this section. For applicability, see Editor's note.


§ 160A-104. Initiative petitions for charter amendments.

The people may initiate a referendum on proposed charter amendments. An initiative petition shall bear the signatures and resident addresses of a number of qualified voters of the city equal to at least ten percent (10%) of the whole number of voters who are registered to vote in city elections according to the most recent figures certified by the State Board of Elections or 5,000, whichever is less. The petition shall set forth the proposed amendments by describing them briefly but completely and with reference to the pertinent provisions of G.S. 160A-101, but it need not contain the precise text of the charter amendments necessary to implement the proposed changes. The petition may not propose changes in the alternative, or more than one integrated set of charter amendments. Upon receipt of a valid initiative petition, the council shall call a special election on the question of adopting the charter amendments proposed therein, and shall give public notice thereof in accordance with G.S. 163-287. The date of the special election shall be fixed on a date permitted by G.S. 163-287. If a majority of the votes cast in the special election shall be in favor of the proposed changes, the council shall adopt an ordinance amending the charter to put them into effect. Such an ordinance shall not be subject to a referendum petition. No initiative petition may be filed (i) between the time the council initiates proceedings under G.S. 160A-102 by publishing a notice of hearing on proposed charter amendments and the time proceeding under that section have been carried to a conclusion either through adoption or rejection of a proposed ordinance or lapse of time, nor (ii) within one year and six months following the effective date of an ordinance amending the city charter pursuant to this Article, nor (iii) within one year and six months following the date of any election on charter amendments that were defeated by the voters.

The restrictions imposed by this section on filing initiative petitions shall apply only to petitions concerning the same subject matter. For example, pendency of council action on amendments concerning the method of electing the council shall not preclude an initiative petition on adoption of the council-manager form of government.

Nothing in this section shall be construed to prohibit the submission of more than one proposition for charter amendments on the same ballot so long as no proposition offers a different plan under the same option as another proposition on the same ballot.

History

(1969, c. 629, s. 2; 1971, c. 698, s. 1; 1973, c. 426, s. 21; 1979, 2nd Sess., c. 1247, ss. 12, 14; 2013-381, s. 10.28; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.)

Local Modification. - City of Charlotte: 1998-212, s. 24.2(a).

Re-codification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled `Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification, in consultation with the State Ethics Commission, the State Board of Elections, the Secretary of State, and the new Bipartisan State Board of Elections and Ethics Enforcement. Pursuant to this authority, the Revisor of Statutes substituted "Bipartisan State Board of Elections and Ethics Enforcement" for "State Board of Elections" and "163A-1592" for "163-287."

Session Laws 2018-146, ss. 3.1(a), (b) and 6.1 repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the changes to the references in this section.

Effect of Amendments. - Session Laws 2013-381, s. 10.28, effective January 1, 2014, substituted "on a date permitted by G.S. 163-287" for "at not more than 120 nor fewer than 60 days after receipt of the petition" at the end of the sixth sentence in the first paragraph. For applicability, see Editor's note.


§ 160A-105. Submission of propositions to voters; form of ballot.

A proposition to approve an ordinance or petition shall be printed on the ballot in substantially the following form:

"Shall the ordinance (describe the effect of the ordinance) be approved?

( ) YES

( ) NO"

The ballot shall be separate from all other ballots used at the election.

If a majority of the votes cast on a proposition shall be in the affirmative, the plan contained therein shall be put into effect as provided in this Article. If a majority of the votes cast shall be against the proposition, the ordinance or petition proposing the amendments shall be void and of no effect.

History

(1969, c. 629, s. 2; 1971, c. 698, s. 1.)

§ 160A-106. Amendment of charter provisions dependent on form of government.

The authority conferred by this Article to amend charter provisions within the options set out in G.S. 160A-101 also includes authority to amend other charter provisions dependent on the form of city government to conform them to the form of government amendments. By way of illustration and not limitation, if a charter providing for a five-member council is amended to increase the size of the council to seven members, a charter provision defining a quorum of the council as three members shall be amended to define a quorum as four members.

History

(1971, c. 698, s. 1.)

§ 160A-107. Plan to continue for two years.

Charter amendments adopted as provided in this Article shall continue in force for at least two years after the beginning of the term of office of the officers elected thereunder.

History

(1969, c. 629, s. 2; 1971, c. 698, s. 1.)

§ 160A-108. Municipal officers to carry out plan.

It shall be the duty of the mayor, the council, the city clerk, and other city officials in office, and all boards of election and election officials, when any plan of government is adopted as provided by this Article or is proposed for adoption, to comply with all requirements of this Article, to the end that all things may be done which are necessary for the nomination and election of the officers first to be elected under the new plan so adopted.

History

(1969, c. 629, s. 2; 1971, c. 698, s. 1.)

§ 160A-109. Effective date.

The council may submit new charter amendments proposed under this Article at any regular or special municipal election, or at a special election called for that sole purpose. Any amendment affecting the election of city officers shall be finally adopted and approved at least 90 days before the first election for mayor or council members held thereunder.

History

(1969, c. 629, s. 2; 1971, c. 698, s. 1.)

§ 160A-110. Charters to remain in force.

The charter of any city that adopts a new form of government as provided in this Article shall continue in full force and effect notwithstanding adoption of a new form of government, except to the extent modified by an ordinance adopted under the authority conferred and pursuant to the procedures prescribed by this Article.

History

(1969, c. 629, s. 2; 1971, c. 698, s. 1.)

§ 160A-111. Filing certified true copies of charter amendments.

The city clerk shall file a certified true copy of any charter amendment adopted under this Part with the Secretary of State, and the Legislative Library.

History

(1985 (Reg. Sess., 1986), c. 935, s. 2; 1989, c. 191, s. 2.)

CASE NOTES

Cited in Jackson v. Charlotte Mecklenburg Hosp. Auth., 238 N.C. App. 351, 768 S.E.2d 23 (2014).


§§ 160A-112 through 160A-115: Reserved for future codification purposes.

ARTICLE 6. Elections.

§§ 160A-116 through 160A-127: Repealed by Session Laws 1971, c. 1076, s. 2.

Cross References. - As to municipal elections, see Article 23 of Chapter 163, G.S. 163-279 et seq.


§§ 160A-128 through 160A-145: Reserved for future codification purposes.

ARTICLE 7. Administrative Offices.

Part 1. Organization and Reorganization of City Government.

Sec.

Part 2. Administration of Council-Manager Cities.

Part 3. Administration of Mayor-Council Cities.

Part 4. Personnel.

Part 5. City Clerk.

Part 6. City Attorney.

PART 1. ORGANIZATION AND REORGANIZATION OF CITY GOVERNMENT.

§ 160A-146. Council to organize city government.

The council may create, change, abolish, and consolidate offices, positions, departments, boards, commissions, and agencies of the city government and generally organize and reorganize the city government in order to promote orderly and efficient administration of city affairs, subject to the following limitations:

  1. The council may not abolish any office, position, department, board, commission, or agency established and required by law;
  2. The council may not combine offices or confer certain duties on the same officer when such action is specifically forbidden by law;
  3. The council may not discontinue or assign elsewhere any functions or duties assigned by law to a particular office, position, department, or agency.

History

(1971, c. 698, s. 1.)

Local Modification. - City of Charlotte: 1973, c. 330.

CASE NOTES

Board of Adjustment. - If a board of adjustment is created, then it must consist of at least five appointees, each with three-year terms. Such terms may not be reduced by the city council as long as the board of adjustment is in existence. However, the prohibition against the reduction of the length of the terms of the members of an existing board of adjustment does not diminish the authority of the city council to abolish the board. Board of Adjustment v. Town of Swansboro, 108 N.C. App. 198, 423 S.E.2d 498 (1992), aff'd, 334 N.C. 421, 432 S.E.2d 310, reh'g denied, 335 N.C. 182, 436 S.E.2d 369 (1993).

A town's board of commissioners authority to organize city government pursuant to this section includes the power to abolish a board of adjustment, appointed and created pursuant to G.S. 160A-388, and to thereafter create a new board of adjustment and make appointments thereto. Board of Adjustment v. Town of Swansboro, 334 N.C. 421, 432 S.E.2d 310, rehearing denied, 335 N.C. 182, 436 S.E.2d 369 (1993).

Cited in Town of Scotland Neck v. Western Sur. Co., 301 N.C. 331, 271 S.E.2d 501 (1980); Frank v. Savage, 205 N.C. App. 183, 695 S.E.2d 509 (2010).


PART 2. ADMINISTRATION OF COUNCIL-MANAGER CITIES.

§ 160A-147. Appointment of city manager; dual office holding.

  1. In cities whose charters provide for the council-manager form of government, the council shall appoint a city manager to serve at its pleasure. The manager shall be appointed solely on the basis of the manager's executive and administrative qualifications. The manager need not be a resident of the city or State at the time of appointment. The office of city manager is hereby declared to be an office that may be held concurrently with other appointive (but not elective) offices pursuant to Article VI, Sec. 9, of the Constitution.
  2. Notwithstanding the provisions of subsection (a), a city manager may serve on a county board of education that is elected on a non-partisan basis if the following criteria are met:
    1. The population of the city by which the city manager is employed does not exceed 10,000;
    2. The city is located in two counties; and
    3. The population of the county in which the city manager resides does not exceed 40,000.
  3. Notwithstanding the provisions of subsection (a) of this section, a city manager may serve on a county board of education that is elected on a nonpartisan basis if the population of the city by which the city manager is employed does not exceed 3,000.
  4. Notwithstanding the provisions of subsection (a), a city manager may hold elective office if the following criteria are met:
    1. The population of the city by which the city manager is employed does not exceed 3,000.
    2. The city manager is an elected official of a city other than the city by which the city manager is employed.
  5. For the purposes of this section, population figures shall be according to the latest United States decennial figures issued at the time the second office is assumed. If census figures issued after the second office is assumed increase the city or county population beyond the limits of this section, the city manager may complete the term of elected office that the city manager is then serving.

History

(1969, c. 629, s. 2; 1971, c. 698, s. 1; 1989, c. 49; 1997-25, s. 1; 2009-321, s. 1.)

Local Modification. - Town of Elon College: 1985, c. 109; (As to Part 2) town of Kernersville: 1989, c. 381, s. 12.

Editor's Note. - Session Laws 1989, c. 49, which amended this section, in s. 2 provided: "Whenever a city manager has served on a county board of education consistent with the requirements set forth in G.S. 160A-147(b) as enacted by Section 1 of this act, provided that such dual office holding commenced no earlier than January 1, 1984, that person may continue to serve in such dual capacity and shall not be deemed to have given up the first office upon assumption of the second office. Actions of neither the county board of education nor the city shall be invalid because of the dual office holding permitted or validated by this act."

Effect of Amendments. - Session Laws 2009-321, s. 1, effective July 17, 2009, added subsection (b1).

CASE NOTES

Severance Pay Not at Odds with "At Will" Employment. - An agreement providing severance pay to a town manager does not prohibit, although it may deter, a town from terminating the town manager "at will" in violation of this section. Myers v. Town of Plymouth, 135 N.C. App. 707, 522 S.E.2d 122 (1999).


§ 160A-148. Powers and duties of manager.

The manager shall be the chief administrator of the city. He shall be responsible to the council for administering all municipal affairs placed in his charge by them, and shall have the following powers and duties:

  1. He shall appoint and suspend or remove all city officers and employees not elected by the people, and whose appointment or removal is not otherwise provided for by law, except the city attorney, in accordance with such general personnel rules, regulations, policies, or ordinances as the council may adopt.
  2. He shall direct and supervise the administration of all departments, offices, and agencies of the city, subject to the general direction and control of the council, except as otherwise provided by law.
  3. He shall attend all meetings of the council and recommend any measures that he deems expedient.
  4. He shall see that all laws of the State, the city charter, and the ordinances, resolutions, and regulations of the council are faithfully executed within the city.
  5. He shall prepare and submit the annual budget and capital program to the council.
  6. He shall annually submit to the council and make available to the public a complete report on the finances and administrative activities of the city as of the end of the fiscal year.
  7. He shall make any other reports that the council may require concerning the operations of city departments, offices, and agencies subject to his direction and control.
  8. He shall perform any other duties that may be required or authorized by the council.

History

(1969, c. 629, s. 2; 1971, c. 698, s. 1; 1973, c. 426, s. 22.)

Local Modification. - Town of Tryon: 2013-261, s. 4 (as to subdivision (1)).

Legal Periodicals. - For article, "Putting Amotion in Motion: Removal of an Elected Official by a Municipal Governing Body for Just Cause," see 32 Campbell L. Rev. 75 (2009).

CASE NOTES

Role of Manager Under Subdivision (1). - Subdivision (1) of this section prohibits the city manager from unilateral adoption of a policy establishing funding for stand-by and on-call duty for any city department. The manager's role is limited to recommending position classification and pay plans to the city council for their ultimate approval. Newber v. City of Wilmington, 83 N.C. App. 327, 350 S.E.2d 125 (1986), cert. denied and appeal dismissed, 319 N.C. 225, 353 S.E.2d 402 (1987).

Liability of City for Malicious Prosecution of Employee by City Manager. - Action of the city manager in instigating the arrest and prosecution of a municipal employee for embezzlement was done in the performance of a governmental function imposed upon the city manager, and therefore the city could not be held liable in tort by such employee in an action for malicious prosecution. McDonald v. Carper, 252 N.C. 29, 112 S.E.2d 741 (1960), decided under former § 160-349.

Sufficiency of Complaint. - Plaintiff's complaint did not sufficiently alleged facts that would support a conclusion that defendant city manager acted in a manner that was contrary to his duty and which he intended to be prejudicial or injurious to another, or acted with a wrongful design to acquire some pecuniary profit or other advantage. Because the appellate court presumed that defendant discharged his duties in good faith and exercised his power in accordance with the spirit and purpose of the law, and plaintiff did not allege facts to the contrary, plaintiff's complaint failed to support a legal conclusion that defendant acted with malice or corruption. Green v. Howell, - N.C. App. - , - S.E.2d - (Nov. 3, 2020).

Cited in Disher v. Weaver, 308 F. Supp. 2d 614 (M.D.N.C. 2004).

§ 160A-149. Acting city manager.

By letter filed with the city clerk, the manager may designate, subject to the approval of the council, a qualified person to exercise the powers and perform the duties of manager during his temporary absence or disability. During this absence or disability, the council may revoke that designation at any time and appoint another to serve until the manager returns or his disability ceases.

History

(1971, c. 698, s. 1.)

§ 160A-150. Interim city manager.

When the position of city manager is vacant, the council shall designate a qualified person to exercise the powers and perform the duties of manager until the vacancy is filled.

History

(1971, c. 698, s. 1.)

§ 160A-151. Mayor and councilmen ineligible to serve or act as manager.

Neither the mayor nor any member of the council shall be eligible for appointment as manager or acting or interim manager.

History

(1971, c. 698, s. 1.)

§ 160A-152. Applicability of Part.

This Part shall apply only to those cities having the council-manager form of government. If the powers and duties of a city manager set out in any city charter shall differ materially from those set out in G.S. 160A-148, the council may by ordinance confer or impose on the manager any of the powers or duties set out in G.S. 160A-148 but not contained in the charter.

History

(1971, c. 698, s. 1.)

§§ 160A-153, 160A-154: Reserved for future codification purposes.

PART 3. ADMINISTRATION OF MAYOR-COUNCIL CITIES.

§ 160A-155. Council to provide for administration in mayor-council cities.

The council shall appoint, suspend, and remove the heads of all city departments, and all other city employees; provided, the council may delegate to any administrative official or department head the power to appoint, suspend, and remove city employees assigned to his department. The head of each department shall see that all laws of the State, the city charter, and the ordinances, resolutions, and regulations of the council concerning his department are faithfully executed within the city. Otherwise, the administration of the city shall be performed as provided by law or direction of the council.

History

(1971, c. 698, s. 1; 1979, 2nd Sess., c. 1247, s. 16.)

§ 160A-156. Acting department heads.

By letter filed with the city clerk, the head of any department may designate, subject to the approval of the council, a qualified person to exercise the powers and perform the duties of head of that department during his temporary absence or disability. During his absence or disability, the council may revoke that designation at any time and appoint another officer to serve until the department head returns or his disability ceases.

History

(1971, c. 698, s. 1.)

§ 160A-157. Interim department heads.

When the position of head of any department is vacant, the council may designate a qualified person to exercise the powers and perform the duties of head of the department until the vacancy is filled.

History

(1971, c. 698, s. 1.)

§ 160A-158. Mayor and councilmen ineligible to serve or act as heads of departments.

Neither the mayor nor any member of the council shall be eligible for appointment as head of any city department or as acting or interim head of a department; provided, that in cities having a population of less than 5,000 according to the most recent official federal census, the mayor and any member of the council shall be eligible for appointment by the council as department head or other employee, and may receive reasonable compensation for such employment, notwithstanding any other provision of law.

History

(1971, c. 698, s. 1; 1979, 2nd Sess., c. 1247, s. 17.)

§ 160A-159. Applicability of Part.

This Part shall apply only to those cities having the mayor-council form of government.

History

(1971, c. 698, s. 1.)

§§ 160A-160, 160A-161: Reserved for future codification purposes.

PART 4. PERSONNEL.

§ 160A-162. Compensation.

  1. The council shall fix or approve the schedule of pay, expense allowances, and other compensation of all city employees, and may adopt position classification plans; any compensation or pay plan may include provisions for payments to employees on account of sickness or disability. In cities with the council-manager form of government, the manager shall be responsible for preparing position classification and pay plans for submission to the council and, after any such plans have been adopted by the council, shall administer them. In cities with the mayor-council form of government, the council shall appoint a personnel officer (or confer the duties of personnel officer on some city administrative officer); the personnel officer shall then be responsible for administering the pay plan and any position classification plan in accordance with general policies and directives adopted by the council.
  2. The council may purchase life, health, and any other forms of insurance for the benefit of all or any class of city employees and their dependents, and may provide other fringe benefits for city employees. In providing health insurance to city employees, the council shall not provide abortion coverage greater than that provided by the State Health Plan for Teachers and State Employees under Article 3B of Chapter 135 of the General Statutes.

History

(1923, c. 20; 1949, c. 103; 1969, c. 845; 1971, c. 698, s. 1; 1979, 2nd Sess., c. 1247, ss. 18, 19; 2013-366, s. 2(c).)

Effect of Amendments. - Session Laws 2013-366, s. 2(c), effective July 29, 2013, added the second sentence in subsection (b). For applicability, see Editor's note.

CASE NOTES

Policy as to Payment of Employees Must Have Council Approval. - This section makes ineffective any policy as to payment of city employees in the City of Wilmington, a city with the council-manager form of government, without the approval of the Wilmington City Council. Newber v. City of Wilmington, 83 N.C. App. 327, 350 S.E.2d 125 (1986), cert. denied and appeal dismissed, 319 N.C. 225, 353 S.E.2d 402 (1987).

As the evidence before the trial court on a motion for summary judgment filed by a police department did not raise a genuine issue of material fact as to whether numerous current police officers were entitled to a pay increase, because the city council had not approved any pay raise for existing employees of the police department with post-secondary degrees, the trial court properly granted summary judgment in favor of the department and against the contesting officers. City of Asheville v. Bowman, 172 N.C. App. 586, 616 S.E.2d 669 (2005).

Stand-By and On-Call Duty Policy. - Administrative policy issued by city manager's office, which indicated in its initial sentence its purposes "to establish conditions for authorizing stand-by and on-call duty, to define them and to set rates for compensation," fell within the purview of this section and its mandate as to "schedule of pay." Newber v. City of Wilmington, 83 N.C. App. 327, 350 S.E.2d 125 (1986), cert. denied and appeal dismissed, 319 N.C. 225, 353 S.E.2d 402 (1987).

Compensation When No Salary Specified. - Where a municipal corporation engaged a commissioner of its sinking fund under the provisions of its charter, by which the incumbent was employed for a term of years continuously, his employment was that of a public officer, which precluded compensation based upon a quantum meruit, and he could not recover for his services in the absence of express statutory provision. Borden v. City of Goldsboro, 173 N.C. 661, 92 S.E. 694 (1917), decided under former law.

Contract with Town Manager Not Ultra Vires. - The execution of an employment contract providing severance pay to an at-will town manager was not ultra vires. Myers v. Town of Plymouth, 135 N.C. App. 707, 522 S.E.2d 122 (1999).


§ 160A-163. Retirement benefits.

  1. The council may provide for enrolling city employees in the Local Governmental Employees' Retirement System, the Law-Enforcement Officers' Benefit and Relief Fund, the Firemen's Pension Fund, or a retirement plan certified to be actuarially sound by a qualified actuary as defined in subsection (d) of this section, and may make payments into any such retirement system or plan on behalf of its employees. The city may also supplement from local funds benefits provided by the Local Governmental Employees' Retirement System, the Law-Enforcement Officers' Benefit and Relief Fund, or the Firemen's Pension Fund.
  2. The council may create and administer a special fund for the relief of members of the police and fire departments who have been retired for age, or for disability or injury incurred in the line of duty, but any such funds established on or after January 1, 1972, shall be subject to the provisions of subsection (c) of this section. The council may receive donations and devises in aid of any such fund, shall provide for its permanence and increase, and shall prescribe and regulate the conditions under which benefits may be paid.
  3. No city shall make payments into any retirement system or plan established or authorized by local act of the General Assembly unless the plan is certified to be actuarially sound by a qualified actuary as defined in subsection (d) of this section.
  4. A qualified actuary means an individual certified as qualified by the Commissioner of Insurance, or any member of the American Academy of Actuaries.
  5. A city which is providing health insurance under G.S. 160A-162(b) may provide health insurance for all or any class of former employees of the city who are receiving benefits under subsection (a) of this section or who are 65 years of age or older. Such health insurance may be paid entirely by the city, partly by the city and former employee, or entirely by the former employee, at the option of the city.
  6. The council may provide a deferred compensation plan.  Where the council provides a deferred compensation plan, the investment of funds for the plan shall be exempt from the provisions of G.S 159-30 and G.S. 159-31.  Cities may invest deferred compensation plan funds in life insurance, fixed or variable annuities and retirement income contracts, regulated investment trusts, or other forms of investments approved by the Board of Trustees of the North Carolina Public Employee Deferred Compensation Plan.
  7. Should the council provide for a retirement plan, a plan which supplements a State-administered plan, or a special fund, any benefits payable from such plan or fund on account of the disability of city employees may be restricted with regard to the amount which may be earned by the disabled former employee in any other employment, but only to the extent that the earnings of disability beneficiaries in the Local Governmental Employees' Retirement System are restricted in accordance with G.S. 128-27(e)(1).

History

(1917, c. 136, subch. 5, s. 1; 1919, cc. 136, 237; C.S., s. 2787; 1965, c. 931; 1971, c. 698, s. 1; 1981, c. 347, s. 2; 1991, c. 277, s. 2; 1995, c. 259, s. 3; 2011-284, s. 111.)

Effect of Amendments. - Session Laws 2011-284, s. 111, effective June 24, 2011, substituted "devises" for "bequests" in the last sentence of subsection (b).

§ 160A-164. Personnel rules.

The council may adopt or provide for rules and regulations or ordinances concerning but not limited to annual leave, sick leave, special leave with full pay or with partial pay supplementing workers' compensation payments for employees injured in accidents arising out of and in the course of employment, hours of employment, holidays, working conditions, service award and incentive award programs, other personnel policies, and any other measures that promote the hiring and retention of capable, diligent, and honest career employees.

History

(1917, c. 136, subch. 5, s. 1; 1919, cc. 136, 237; C.S., s. 2787; 1965, c. 931; 1971, c. 698, s. 1; 1979, c. 714, s. 2.)

CASE NOTES

Role of City Manager. - Section 160A-148(1) prohibits the city manager from the unilateral adoption of a policy establishing the funding for stand-by and on-call duty for any city department. The manager's role is limited to recommending position classification and pay plans to the city council for their ultimate approval. Newber v. City of Wilmington, 83 N.C. App. 327, 350 S.E.2d 125 (1986), cert. denied and appeal dismissed, 319 N.C. 225, 353 S.E.2d 402 (1987).


§ 160A-164.1. Smallpox vaccination policy (see editor's note on condition precedent).

All municipalities that employ firefighters, police officers, paramedics, or other first responders shall, not later than 90 days after this section becomes law, enact a policy regarding sick leave and salary continuation for those employees for absence from work due to an adverse medical reaction resulting from the employee receiving in employment vaccination against smallpox incident to the Administration of Smallpox Countermeasures by Health Professionals, section 304 of the Homeland Security Act, Pub. L. No. 107-296 (Nov. 25, 2002) (to be codified at 42 U.S.C. § 233(p)).

History

(2003-169, s. 5.)

Cross References. - As to tort claims arising from certain smallpox vaccinations of State employees, see G.S. 143-300.1A.

Condition precedent to recovery. - Session Laws 2003-169, s. 7, provides: "In the event that federal regulatory or statutory provisions providing compensation and benefits to persons for infection with smallpox, infection with vaccinia, or any adverse medical reaction incident to the Administration of Smallpox Countermeasures by Health Professionals, section 304 of the Homeland Security Act, Pub. L. No. 107-296 (Nov. 25, 2002) (to be codified at 42 U.S.C. § 233(p)) are adopted, a condition precedent to recovery under this act shall be that the person claiming compensation and benefits under this act shall first seek compensation and benefits under the federal provisions, with those provisions constituting primary coverage and the person then being entitled to compensation and benefits under this act not exceeding a total recovery under the federal provisions and this act equal to the amount available under the applicable provisions of this act."

The Smallpox Emergency Personnel Protection Act of 2003, Public Law 108-20, 117, Sta. 638, authorizes the Secretary of Health and Human Services to establish a Smallpox Vaccine Injury Compensation Program, which covers individuals immunized through January 23, 2005 or vaccina contacts who show symptoms by February 22, 2005.

Editor's Note. - Session Laws 2003-169, s. 9, made this section effective June 12, 2003, and applicable to claims arising from infection or adverse medical reactions related to smallpox vaccinations incident to the Administration of Smallpox Countermeasures by Health Professionals, section 304 of the Homeland Security Act, Pub. L. No.107-296 (Nov. 25, 2002) (to be codified at 42 U.S.C. § 233(p)) whether the infection or adverse medical reactions occurred before, on, or after June 12, 2003.

Session Laws 2003-169, s. 8, is a severability clause.

§ 160A-164.2. Criminal history record check of employees permitted.

The council may adopt or provide for rules and regulations or ordinances concerning a requirement that any applicant for employment be subject to a criminal history record check of State and National Repositories of Criminal Histories conducted by the Department of Public Safety in accordance with G.S. 143B-945. The city may consider the results of these criminal history record checks in its hiring decisions.

History

(2003-214, s. 5; 2014-100, s. 17.1(nnn).)

Cross References. - As to criminal history record checks under the National Crime Prevention and Privacy Compact, see G.S. 143B-981.

Editor's Note. - This section was originally enacted as G.S. 160A-164.1 by Session Laws 2003-214, s. 5. It has been renumbered as G.S. 160A-164.2 at the direction of the Revisor of Statutes.

Session Laws 2014-100, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2014.'"

Session Laws 2014-100, s. 38.7, is a severability clause.

Effect of Amendments. - Session Laws 2014-100, s. 17.1(nnn), effective July 1, 2014, in the first sentence, substituted "Department of Public Safety" for "Department of Justice" and "G.S. 143B-945" for "G.S. 114-19.14."


§ 160A-165. Personnel board.

The council may establish a personnel board with authority to administer tests designed to determine the merit and fitness of candidates for appointment or promotion, to conduct hearings upon the appeal of employees who have been suspended, demoted, or discharged, and hear employee grievances.

History

(1917, c. 136, subch. 5, s. 1; 1919, cc. 136, 237; C.S., s. 2787; 1965, c. 931; 1971, c. 698, s. 1.)

§ 160A-166. Participation in Social Security Act.

The council may take any action necessary to allow city employees to participate fully in benefits provided by the federal Social Security Act.

History

(1949, c. 103; 1969, c. 845; 1971, c. 698, s. 1.)

§ 160A-167. Defense of employees and officers; payment of judgments.

  1. Upon request made by or in behalf of any member or former member of the governing body of any authority, or any city, county, or authority employee or officer, or former employee or officer, any soil and water conservation supervisor or any local soil and water conservation employee, whether the employee is a district or county employee, or any member of a volunteer fire department or rescue squad which receives public funds, any city, authority, county, soil and water conservation district, or county alcoholic beverage control board may provide for the defense of any civil or criminal action or proceeding brought against him either in his official or in his individual capacity, or both, on account of any act done or omission made, or any act allegedly done or omission allegedly made, in the scope and course of his employment or duty as an employee or officer of the city, authority, county or county alcoholic beverage control board. The defense may be provided by the city, authority, county or county alcoholic beverage control board by its own counsel, or by employing other counsel, or by purchasing insurance which requires that the insurer provide the defense. Providing for a defense pursuant to this section is hereby declared to be for a public purpose, and the expenditure of funds therefor is hereby declared to be a necessary expense. Nothing in this section shall be deemed to require any city, authority, county or county alcoholic beverage control board to provide for the defense of any action or proceeding of any nature.
  2. Any city council or board of county commissioners may appropriate funds for the purpose of paying all or part of a claim made or any civil judgment entered against any of its members or former members of the governing body of any authority, or any city, county, or authority employees or officers, or former employees or officers, or any soil and water conservation supervisor or any local soil and water conservation employee, whether the employee is a district or county employee, when such claim is made or such judgment is rendered as damages on account of any act done or omission made, or any act allegedly done or omission allegedly made, in the scope and course of his employment or duty as a member or former member of the governing body of any authority, or any city, county, district, or authority employee or officer of the city, authority, district, or county; provided, however, that nothing in this section shall authorize any city, authority, district, or county to appropriate funds for the purpose of paying any claim made or civil judgment entered against any of its members or former members of the governing body of any authority, or any city, county, district, or authority employees or officers or former employees or officers if the city council or board of county commissioners finds that such members or former members of the governing body of any authority, or any city, county, or authority employee or officer acted or failed to act because of actual fraud, corruption or actual malice on his part. Any city, authority, or county may purchase insurance coverage for payment of claims or judgments pursuant to this section. Nothing in this section shall be deemed to require any city, authority, or county to pay any claim or judgment referred to herein, and the purchase of insurance coverage for payment of any such claim or judgment shall not be deemed an assumption of any liability not covered by such insurance contract, and shall not be deemed an assumption of liability for payment of any claim or judgment in excess of the limits of coverage in such insurance contract.
  3. Subsection (b) shall not authorize any city, authority, or county to pay all or part of a claim made or civil judgment entered unless (1) notice of the claim or litigation is given to the city council, authority governing board, or board of county commissioners as the case may be prior to the time that the claim is settled or civil judgment is entered, and (2) the city council, authority governing board, or board of county commissioners as the case may be shall have adopted, and made available for public inspection, uniform standards under which claims made or civil judgments entered against members or former members of the governing body of any authority, or any city, county, or authority employees or officers, or former employees or officers, shall be paid.
  4. For the purposes of this section, "authority" means an authority organized under Article 1 of Chapter 162A of the General Statutes, the North Carolina Water and Sewer Authorities Act. "District" means a soil and water conservation district organized under Chapter 139 of the General Statutes.

History

(1967, c. 1093; 1971, c. 698, s. 1; 1973, c. 426, s. 23; c. 1450; 1977, c. 307, s. 2; c. 834, s. 1; 1983, c. 525, ss. 1-4; 2001-300, s. 2.)

Local Modification. - Mecklenburg: 1989, c. 151, s. 1; city of Charlotte: 1989 (Reg. Sess., 1990), c. 862.

Legal Periodicals. - For comment on the need for reform in North Carolina of local government sovereign immunity, see 18 Wake Forest L. Rev. 43 (1982).

For comment, "Waiving Local Government Immunity in North Carolina: Risk Management Programs Are Insurance," see 27 Wake Forest L. Rev. 709 (1992).

CASE NOTES

Action Under Section Does Not Waive Immunity. - G.S. 106A-485 provides that the only way a city may waive its governmental immunity is by the purchase of liability insurance. Action by the City under this section does not waive immunity. Blackwelder v. City of Winston-Salem, 332 N.C. 319, 420 S.E.2d 432 (1992).

When taxpayers sued county commissioners for entering into a contract that benefitted one of the commissioners, evidence of the amount spent by the county to defend the commissioners was admissible; the actions of one of the commissioners were unquestionably outside the scope of his office, due to his clear violation of the conflict of interest statute, G.S 14-234(a), so that he was not entitled to have his defense provided by the county, and, while the actions of the other commissioners did not rise to a violation of the conflict of interest law, their actions combined with their judgment and knowledge of the actions of the commissioner who was guilty of a conflict of interest raised questions as to whether their conduct was within the course and scope of their office. Gibbs v. Mayo, 162 N.C. App. 549, 591 S.E.2d 905, cert. denied, 358 N.C. 543, 599 S.E.2d 45 (2004).

Complaint Alleging Waiver of Governmental Immunity. - Dismissal of the complaint seeking reimbursement for costs incurred in defending lawsuits brought against the former chief of police during his tenure was not warranted because the former chief sufficiently pled waiver of governmental immunity by alleging the essence of a contract claim: that he had an employment relationship with the city that included an obligation on the part of the city to pay for his defense and that the city failed to do so. Wray v. City of Greensboro, 370 N.C. 41, 802 S.E.2d 894 (2017).

Applied in Gray v. Laws, 51 F.3d 426 (4th Cir. 1995).

§ 160A-168. Privacy of employee personnel records.

  1. Notwithstanding the provisions of G.S. 132-6 or any other general law or local act concerning access to public records, personnel files of employees, former employees, or applicants for employment maintained by a city are subject to inspection and may be disclosed only as provided by this section. For purposes of this section, an employee's personnel file consists of any information in any form gathered by the city with respect to that employee and, by way of illustration but not limitation, relating to his application, selection or nonselection, performance, promotions, demotions, transfers, suspension and other disciplinary actions, evaluation forms, leave, salary, and termination of employment. As used in this section, "employee" includes former employees of the city.
  2. The following information with respect to each city employee is a matter of public record:
    1. Name.
    2. Age.
    3. Date of original employment or appointment to the service.
    4. The terms of any contract by which the employee is employed whether written or oral, past and current, to the extent that the city has the written contract or a record of the oral contract in its possession.
    5. Current position.
    6. Title.
    7. Current salary.
    8. Date and amount of each increase or decrease in salary with that municipality.
    9. Date and type of  each promotion, demotion, transfer, suspension, separation, or other change in position classification with that municipality.
    10. Date and general description of the reasons for each promotion with that municipality.
    11. Date and type of each dismissal, suspension, or demotion for disciplinary reasons taken by the municipality. If the disciplinary action was a dismissal, a copy of the written notice of the final decision of the municipality setting forth the specific acts or omissions that are the basis of the dismissal.
    12. The office to which the employee is currently assigned.
  3. For the purposes of this subsection, the term "salary" includes pay, benefits, incentives, bonuses, and deferred and all other forms of compensation paid by the employing entity.
  4. The city council shall determine in what form and by whom this information will be maintained. Any person may have access to this information for the purpose of inspection, examination, and copying, during regular business hours, subject only to such rules and regulations for the safekeeping of public records as the city council may have adopted. Any person denied access to this information may apply to the appropriate division of the General Court of Justice for an order compelling disclosure, and the court shall have jurisdiction to issue such orders.
  5. All information contained in a city employee's personnel file, other than the information made public by subsection (b) of this section, is confidential and shall be open to inspection only in the following instances:
    1. The employee or his duly authorized agent may examine all portions of his personnel file except (i) letters of reference solicited prior to employment, and (ii) information concerning a medical disability, mental or physical, that a prudent physician would not divulge to his patient.
    2. A licensed physician designated in writing by the employee may examine the employee's medical record.
    3. A city employee having supervisory authority over the employee may examine all material in the employee's personnel file.
    4. By order of a court of competent jurisdiction, any person may examine such portion of an employee's personnel file as may be ordered by the court.
    5. An official of an agency of the State or federal government, or any political subdivision of the State, may inspect any portion of a personnel file when such inspection is deemed by the official having custody of such records to be inspected to be necessary and essential to the pursuance of a proper function of the inspecting agency, but no information shall be divulged for the purpose of assisting in a criminal prosecution (of the employee), or for the purpose of assisting in an investigation of (the employee's) tax liability. However, the official having custody of such records may release the name, address, and telephone number from a personnel file for the purpose of assisting in a criminal investigation.
    6. An employee may sign a written release, to be placed with his personnel file, that permits the person with custody of the file to provide, either in person, by telephone, or by mail, information specified in the release to prospective employers, educational institutions, or other persons specified in the release.
    7. The city manager, with concurrence of the council, or, in cities not having a manager, the council may inform any person of the employment or nonemployment, promotion, demotion, suspension or other disciplinary action, reinstatement, transfer, or termination of a city employee and the reasons for that personnel action. Before releasing the information, the manager or council shall determine in writing that the release is essential to maintaining public confidence in the administration of city services or to maintaining the level and quality of city services. This written determination shall be retained in the office of the manager or the city clerk, and is a record available for public inspection and shall become part of the employee's personnel file.
  6. Even if considered part of an employee's personnel file, the following information need not be disclosed to an employee nor to any other person:
    1. Testing or examination material used solely to determine individual qualifications for appointment, employment, or promotion in the city's service, when disclosure would compromise the objectivity or the fairness of the testing or examination process.
    2. Investigative reports or memoranda and other information concerning the investigation of possible criminal actions of an employee, until the investigation is completed and no criminal action taken, or until the criminal action is concluded.
    3. Information that might identify an undercover law enforcement officer or a law enforcement informer.
    4. Notes, preliminary drafts and internal communications concerning an employee. In the event such materials are used for any official personnel decision, then the employee or his duly authorized agent shall have a right to inspect such materials.
  7. The city council may permit access, subject to limitations they may impose, to selected personnel files by a professional representative of a training, research, or academic institution if that person certifies that he will not release information identifying the employees whose files are opened and that the information will be used solely for statistical, research, or teaching purposes. This certification shall be retained by the city as long as each personnel file examined is retained.
  8. Repealed by Session Laws 2016-108, s. 2(h), effective July 22, 2016.
  9. Even if considered part of an employee's personnel file, the following information regarding any sworn law enforcement officer shall not be disclosed to an employee or any other person, unless disclosed in accordance with G.S. 132-1.4, or in accordance with G.S. 132-1.10, or for the personal safety of that sworn law enforcement officer or any other person residing in the same residence:
    1. Information that might identify the residence of a sworn law enforcement officer.
    2. Emergency contact information.
    3. Any identifying information as defined in G.S. 14-113.20.
  10. The city council of a city that maintains personnel files containing information other than the information mentioned in subsection (b) of this section shall establish procedures whereby an employee who objects to material in his file on grounds that it is inaccurate or misleading may seek to have the material removed from the file or may place in the file a statement relating to the material.
  11. A public official or employee who knowingly, willfully, and with malice permits any person to have access to information contained in a personnel file, except as is permitted by this section, is guilty of a Class 3 misdemeanor and upon conviction shall only be fined an amount not more than five hundred dollars ($500.00).
  12. Any person, not specifically authorized by this section to have access to a personnel file designated as confidential, who shall knowingly and willfully examine in its official filing place, remove or copy any portion of a confidential personnel file shall be guilty of a Class 3 misdemeanor and upon conviction shall only be fined in the discretion of the court but not in excess of five hundred dollars ($500.00).

History

(1975, c. 701, s. 2; 1981, c. 926, ss. 1-4; 1993, c. 539, ss. 1084, 1085; 1994, Ex. Sess., c. 24, s. 14(c); 2007-508, s. 7; 2008-194, s. 11(e); 2010-169, s. 18(f); 2015-225, s. 2; 2016-108, s. 2(h).)

Local Modification. - City of Charlotte: 1997-305, s. 3; city of Durham: 1998-142, s. 1; city of Greensboro: 2001-20; 2018-105, s. 2(a); city of Wilmington: 2003-238, s. 1.

Effect of Amendments. - Session Laws 2007-508, s. 7, effective August 30, 2007, in subsection (b), inserted "the terms of any contract by which the employee is employed whether written or oral, past and current, to the extent that the city has the written contract or a record of the oral contract in its possession" in the first sentence and added the second sentence.

Session Laws 2008-194, s. 11(e), effective August 8, 2008, added subsection (c3).

Session Laws 2010-169, s. 18(f), effective October 1, 2010, subdivided subsection (b), adding the subdivision designations and making multiple stylistic changes; in subdivision (b)(8), substituted "each increase or decrease in salary with that municipality" for "most recent increase or decrease in salary"; in subdivision (b)(9), substituted "Date and type of each promotion" for "date of the most recent promotion," and added "with that municipality"; added subdivisions (b)(10) and (b)(11); and added the subsection (b1) and (b2) designations.

Session Laws 2015-225, s. 2, effective October 1, 2015, added subsection (c4).

Session Laws 2016-108, s. 2(h), effective July 22, 2016, repealed subsection (c3).

Legal Periodicals. - For comment, "You Can't Always Get What You Want: A Look at North Carolina's Public Records Law," see 72 N.C.L. Rev. 1527 (1994).

For article, "Fired by Liars: Due Process Implications in the Recent Changes to North Carolina's Public Disclosure Laws," see 89 N.C.L. Rev. 2228 (2011).

CASE NOTES

Subdivision (c)(4) of this section specifically authorizes disclosure by order of a court of competent jurisdiction. Hall v. Helms, 118 F.R.D. 51 (W.D.N.C. 1987).

The plain language of subdivision (c)(4) indicates that a superior court, being a court of competent jurisdiction, has the authority to allow inspection of the personnel files of police officers. In re Brooks, 143 N.C. App. 601, 548 S.E.2d 748 (2001).

This section does not create a civil cause of action. Houpe v. City of Statesville, 128 N.C. App. 334, 497 S.E.2d 82, cert. denied, 348 N.C. 72, 505 S.E.2d 871 (1998).

Trial Court Has No Authority to Disclose Confidential Personnel File to General Public. - Trial court erred in granting a city's petition for disclosure of transcripts contained in police officers' personnel files because the trial court was not granted authority under G.S. 160A-168(c)(4) to release portions of the officers' confidential personnel file to the general public; a court of competent jurisdiction does not have the authority under G.S. 160A-168(c)(4) to order the release of any portion of a city employee's confidential personnel file to the general public. Release of the Silk Plant Forest Citizen Review Committee's Report & Appendices v. Barker, 216 N.C. App. 268, 719 S.E.2d 54 (2011), review denied, 720 S.E.2d 670, 2012 N.C. LEXIS 58 (2012).

Plain language of G.S.160A-168(c)(4) allows, by order of the trial court, "examination" by "any person" the relevant "portion" of a city employee's personnel file, and the natural meaning of these terms indicate a clear intent to maintain the privacy of a city employee's personnel file except under limited circumstances where examination of only the relevant portion of the file is allowed; the use of the word "examine," as opposed to "copy" or another word pertaining to mass publication, indicates the legislature's intent to limit the exposure of personnel files. Release of the Silk Plant Forest Citizen Review Committee's Report & Appendices v. Barker, 216 N.C. App. 268, 719 S.E.2d 54 (2011), review denied, 720 S.E.2d 670, 2012 N.C. LEXIS 58 (2012).

Ex Parte Petitions for Disclosure Under Subdivision (c)(4). - An ex parte petition submitted pursuant to subdivision (c)(4) should be accompanied by sworn affidavits or similar evidence, including specific factual allegations detailing reasons justifying disclosure and stating the statutory grounds which allow disclosure, the court should docket petitions submitted and orders entered pursuant to subdivision (c)(4) per its rules for docketing special proceedings, and the Superior Court should make an independent determination that the interests of justice require disclosure of the confidential employment information. In re Brooks, 143 N.C. App. 601, 548 S.E.2d 748 (2001).

Ex parte orders releasing defendant's personnel and educational records were void ab initio because (1) the State presented insufficient evidence supporting a motion for the orders, and (2) no proceeding invoking a court's jurisdiction was initiated. State v. Santifort, 257 N.C. App. 211, 809 S.E.2d 213 (2017).

Official Personnel Decision. - "Official personnel decision" is an authorized or authoritative judgment or conclusion of or pertaining to employed persons; since "personnel" is a collective noun, the plain meaning of this phrase as it is used in G.S. 160A-168(c1)(4), more specifically refers to authorized or authoritative judgments or conclusions of or pertaining to the employed person about whom the judgment or conclusion is rendered. Wind v. City of Gastonia, 226 N.C. App. 180, 738 S.E.2d 780, aff'd, 367 N.C. 184, 751 S.E.2d 611, 2013 N.C. LEXIS 1364 (2013).

"Official personnel decision," as it is used in G.S. 160A-168(c1)(4) need not be limited only to those determinations that result in a change to an employee's position of employment as under G.S. 160A-168(a), the information included in a city employee's personnel file is not limited to information that concerns only changes in employment like promotions, demotions, or transfers, but also concerns non-selection, performance, evaluation forms, and other information in any form gathered by the city with respect to that employee. Wind v. City of Gastonia, 226 N.C. App. 180, 738 S.E.2d 780, aff'd, 367 N.C. 184, 751 S.E.2d 611, 2013 N.C. LEXIS 1364 (2013).

Notes, Preliminary Drafts and Internal Communications. - Based on the common definitions of notes, preliminary drafts and internal communications when G.S. 160A-168(c1)(4) was promulgated, the North Carolina general assembly intends to allow a disclosure exemption under G.S. 160A-168(c1)(4) for written materials that are informal or provisional in character as a dictionary defines a draft as a rough or preliminary sketch of a piece of writing, and defines a note as a brief statement of a fact, experience, etc. written down for review, as an aid to memory, or to inform someone else. Wind v. City of Gastonia, 226 N.C. App. 180, 738 S.E.2d 780, aff'd, 367 N.C. 184, 751 S.E.2d 611, 2013 N.C. LEXIS 1364 (2013).

Improper Disclosure. - Plaintiff police officers stated a claim against defendant city councilor for tortious interference with prospective economic advantage because they plausibly alleged interference without justification as to the improper disclosure of information with respect to each officer and relating to each officer's performance, promotions, disciplinary actions, evaluation forms, or other aspects of employment with the city pursuant to G.S. 160A-168(a). Alexander v. City of Greensboro, 762 F. Supp. 2d 764 (M.D.N.C. 2011).

Disclosure Required. - As a city field to make any specific argument as to why the information should not be produced and as plaintiff In a retaliation and gender discrimination action asserted that the information was relevant to an analysis of how her qualifications for employment compared to other applicants hired by the city, the city was directed to provide information regarding the years of driving experience for individual's named in response to another interrogatory. Barnette v. City of Charlotte, - F. Supp. 2d - (W.D.N.C. Aug. 31, 2012).

Assuming that the internal affairs files in plaintiff's personnel file regarding complaints about plaintiff's conduct as a police officer were notes, preliminary drafts and internal communications concerning an employee under G.S. 160A-168(c1)(4), defendant could not refuse plaintiff's request to inspect the materials, even though the police chief's decisions did not result in a change in plaintiff's employment, as the materials were used by the police chief to make official personnel decisions with respect to plaintiff. Wind v. City of Gastonia, 226 N.C. App. 180, 738 S.E.2d 780, aff'd, 367 N.C. 184, 751 S.E.2d 611, 2013 N.C. LEXIS 1364 (2013).

When an informal, provisional, or otherwise preliminary or internal communication, note, or draft concerning an employee is included in his or her personnel file, that communication, note, or draft is subject to the disclosure requirement of G.S. 160A-168(c)(1) and (c1)(4) when such materials are used to make an authorized or authoritative judgment or conclusion with respect to that employee. Wind v. City of Gastonia, 226 N.C. App. 180, 738 S.E.2d 780, aff'd, 367 N.C. 184, 751 S.E.2d 611, 2013 N.C. LEXIS 1364 (2013).

In an action against city employees alleging violations of civil rights, sealing documents identified as personnel records was not warranted since the governmental interest in the confidentiality of the personnel records was not sufficiently compelling to overcome the constitutional public right of access to the records, and the employees' actions in the course of employment formed the very basis of the lawsuit. Johnson v. City of Fayetteville, - F. Supp. 2d - (E.D.N.C. Dec. 11, 2014).

Applied in Spell v. McDaniel, 591 F. Supp. 1090 (E.D.N.C. 1984).

Cited in Rowell v. City of Hickory, - F. Supp. 2d - (W.D.N.C. Oct. 8, 2008).

Opinions of Attorney General

Attorney-Client Communications to City on Personnel Matters. - Written attorney-client communications to a city (including the city manager and city council) on specific personnel matters related to an employee that are more than three years old, and which are confidential under G.S. 160A-168(a), are not public records; by its specific terms, G.S. 160A-168(a) supersedes the requirement in G.S. 132-1.1 that privileged attorney-client communications must be disclosed three years after they are received. See opinion of Attorney General to Mr. Grady Joseph Wheeler, Jr., Esq., Attorney, 2001 N.C. AG LEXIS 15 (5/30/2001).


§ 160A-169. City employee political activity.

  1. Purpose. The purpose of this section is to ensure that city employees are not subjected to political or partisan coercion while performing their job duties, to ensure that employees are not restricted from political activities while off duty, and to ensure that public funds are not used for political or partisan activities.
  2. Definitions. For the purposes of this section:
    1. "City employee" or "employee" means any person employed by a city or any department or program thereof that is supported, in whole or in part, by city funds;
    2. "On duty" means that time period when an employee is engaged in the duties of his or her employment; and
    3. "Workplace" means any place where an employee engages in his or her job duties.
  3. No employee while on duty or in the workplace may:
    1. Use his or her official authority or influence for the purpose of interfering with or affecting the result of an election or nomination for political office; or
    2. Coerce, solicit, or compel contributions for political or partisan purposes by another employee.
  4. No employee may be required as a duty or condition of employment, promotion, or tenure of office to contribute funds for political or partisan purposes.
  5. No employee may use city funds, supplies, or equipment for partisan purposes, or for political purposes except where such political uses are otherwise permitted by law.
  6. To the extent that this section conflicts with the provisions of any local act, city charter, local ordinance, resolution, or policy, this section prevails to the extent of the conflict.

It is not the purpose of this section to allow infringement upon the rights of employees to engage in free speech and free association. Every city employee has a civic responsibility to support good government by every available means and in every appropriate manner. Employees shall not be restricted from affiliating with civic organizations of a partisan or political nature, nor shall employees, while off duty, be restricted from attending political meetings, or advocating and supporting the principles or policies of civic or political organizations, or supporting partisan or nonpartisan candidates of their choice in accordance with the Constitution and laws of the State and the Constitution and laws of the United States of America.

History

(1991, c. 619, s. 2; 1993, c. 298, s. 2.)

Editor's Note. - The number of this section was assigned by the Revisor of Statutes. The number assigned by the enacting act, G.S. 160A-99, was apparently a typographical error.

Opinions of Attorney General

The provisions of this section and § 153A-99 are applicable to elected officials of counties and cities. See opinion of Attorney General to Mr. William R. Gilkeson, Staff Attorney, N.C. General Assembly, 1998 N.C.A.G. 1 (1/14/98).

§ 160A-169.1. Municipality verification of employee work authorization.

  1. Municipalities Must Use E-Verify. - Each municipality shall register and participate in E-Verify to verify the work authorization of new employees hired to work in the United States.
  2. E-Verify Defined. - As used in this section, the term "E-Verify" means the federal E-Verify program operated by the United States Department of Homeland Security and other federal agencies, or any successor or equivalent program used to verify the work authorization of newly hired employees pursuant to federal law.
  3. Nondiscrimination. - This section shall be enforced without regard to race, religion, gender, ethnicity, or national origin.

History

(2011-263, s. 5.)

§ 160A-170: Reserved for future codification purposes.

PART 5. CITY CLERK.

§ 160A-171. City clerk; duties.

There shall be a city clerk who shall give notice of meetings of the council, keep a journal of the proceedings of the council, be the custodian of all city records, and shall perform any other duties that may be required by law or the council.

History

(1917, c. 136, subch. 13, s. 1; C.S., s. 2826; 1941, c. 103; 1949, c. 14; 1971, c. 698, s. 1.)

CASE NOTES

Town Clerk. - Trial court did not err in denying the town's motion to dismiss the newspaper's amended complaint for lack of standing and for the alleged failure to join a necessary party, the town clerk, as the newspaper was a party to the action who sought the disclosure of the alleged public records at issue and, thus, the newspaper had standing to request the documents, and it was not necessary to join the town clerk to the action before all necessary parties to the action were before the trial court. Womack Newspapers, Inc. v. Town of Kitty Hawk, 181 N.C. App. 1, 639 S.E.2d 96 (2007).

Cited in Town of Scotland Neck v. Western Sur. Co., 46 N.C. App. 124, 264 S.E.2d 917 (1980); Town of Scotland Neck v. Western Sur. Co., 301 N.C. 331, 271 S.E.2d 501 (1980).


§ 160A-172. Deputy clerk.

The council may provide for a deputy city clerk who shall have full authority to exercise and perform any of the powers and duties of the city clerk that may be specified by the council.

History

(1917, c. 136, subch. 13, s. 1; C.S., s. 2826; 1941, c. 103; 1949, c. 14; 1971, c. 698, s. 1.)

PART 6. CITY ATTORNEY.

§ 160A-173. City attorney; appointment and duties.

The council shall appoint a city attorney to serve at its pleasure and to be its legal adviser.

History

(1971, c. 698, s. 1.)

ARTICLE 8. Delegation and Exercise of the General Police Power.

Sec.

§ 160A-174. General ordinance-making power.

  1. A city may by ordinance define, prohibit, regulate, or abate acts, omissions, or conditions, detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the city, and may define and abate nuisances.
  2. A city ordinance shall be consistent with the Constitution and laws of North Carolina and of the United States. An ordinance is not consistent with State or federal law when:
    1. The ordinance infringes a liberty guaranteed to the people by the State or federal Constitution;
    2. The ordinance makes unlawful an act, omission or condition which is expressly made lawful by State or federal law;
    3. The ordinance makes lawful an act, omission, or condition which is expressly made unlawful by State or federal law;
    4. The ordinance purports to regulate a subject that cities are expressly forbidden to regulate by State or federal law;
    5. The ordinance purports to regulate a field for which a State or federal statute clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation;
    6. The elements of an offense defined by a city ordinance are identical to the elements of an offense defined by State or federal law.

The fact that a State or federal law, standing alone, makes a given act, omission, or condition unlawful shall not preclude city ordinances requiring a higher standard of conduct or condition.

History

(1971, c. 698, s. 1.)

Cross References. - As to waiver of certain dentistry and dental hygiene requirements under Articles 2 and 16 of Chapter 90 during state of emergency declarations, see G.S. 90-28.5.

As to limitations on enactment of Sunday-closing ordinances, see G.S. 160A-191.

Editor's Note. - Session Laws 2014-120, s. 32(b)-(d), provides: "(b) No later than November 1, 2014, and November 1, 2015, the Department of Agriculture and Consumer Services shall report to the Environmental Review Commission on any local government ordinances that impinge on or interfere with any area subject to regulation by the Department.

"(c) No later than November 1, 2014, and November 1, 2015, the Department of Environment and Natural Resources [now Department of Environmental Quality] shall report to the Environmental Review Commission on any local government ordinances that impinge on or interfere with any area subject to regulation by the Department.

"(d) In developing the reports pursuant to Sections 32(b) and 32(c) of this act, the Department of Environment and Natural Resources [now Department of Environmental Quality] and the Department of Agriculture and Consumer Services shall solicit and receive input from the public regarding any local government ordinances that impinge on or interfere with any area subject to regulation by the respective Department."

Legal Periodicals. - For article, "Regulating Obscenity Through the Power to Define and Abate Nuisances," see 14 Wake Forest L. Rev. 1 (1978).

For comment, "Municipal Tort Liability for Negligent Failure to Provide Adequate Police Protection," see 20 Wake Forest L. Rev. 697 (1984).

For note, "Preemption Hogwash: North Carolina's Judicial Repeal of Local Authority to Regulate Hog Farms in Craig v. County of Chatham," see 80 N.C.L. Rev. 2121 (2002).

For note, "A First Step in the Wrong Direction: Slavin v. Town of Oak Island and the Taking of Littoral Rights of Direct Beach Access," see 82 N.C.L. Rev. 1510 (2004).

For article, "Toward a Comprehensive Program for Regulating Vacant or Abandoned Dwellings in North Carolina: The General Police Power, Minimum Housing Standards, and Vacant Property Registration," see 32 Campbell L. Rev. 1 (2009).

For article, "Searching for the Right Approach: Regulating Short-Term Rentals in North Carolina," see 96 N.C.L. Rev. 1821 (2018).

For article, "Searching Everywhere for a Section 24(1)(A) Standard: City of Asheville, Town of Boone, and the Unclear Future of Local-State Relations in North Carolina," see 96 N.C.L. Rev. 1882 (2018).

CASE NOTES

I. IN GENERAL.

Editor's Note. - Many of the cases cited below were decided under former similar provisions.

Through this section and G.S. 160A-186 the legislature has delegated to the municipalities a part of its police power, which may be exercised to protect or promote the health, morals, order, safety and general welfare of society. Town of Atlantic Beach v. Young, 307 N.C. 422, 298 S.E.2d 686, appeal dismissed, 462 U.S. 1101, 103 S. Ct. 2446, 77 L. Ed. 2d 1328 (1983).

Power to Enact Ordinances. - Established municipal authorities may enact such ordinances as are promotive of the peace and good order of the town, the limitation being that the regulations may not be unreasonable or unduly discriminative nor manifestly oppressive and in derogation of common right. State v. Burbage, 172 N.C. 876, 89 S.E. 795 (1916).

The necessary implication of subdivision (b)(3) is that the General Assembly intended to allow the issuance of a preliminary injunction upon a showing by plaintiffs of a likelihood of success on the merits of a tort claim and some type of irreparable harm, even where an ordinance has not been enforced by local authorities or where an ordinance might permit one to pursue a course of action that otherwise would constitute a potential tort claim under State law. Kaplan v. Prolife Action League, 111 N.C. App. 1, 431 S.E.2d 828, appeal dismissed and discretionary review denied, 335 N.C. 175, 436 S.E.2d 379 (1993), cert. denied, 512 U.S. 1253, 114 S. Ct. 2783, 129 L. Ed. 2d 894 (1994).

It is not necessary now to aver authority conferred by a general and public law to pass an ordinance, as it was when that authority was derived under a special act of incorporation. State v. Merritt, 83 N.C. 677 (1880).

A municipal ordinance is presumed to be valid, and the burden is upon the complaining party to show its invalidity or inapplicability. Currituck County v. Willey, 46 N.C. App. 835, 266 S.E.2d 52, cert. denied, 283 S.E.2d 131 (1980).

A municipal ordinance promulgated in the exercise of the police power will not be declared unconstitutional unless it is clearly so, and every intendment will be made to sustain it. Currituck County v. Willey, 46 N.C. App. 835, 266 S.E.2d 52, cert. denied, 283 S.E.2d 131 (1980).

Doubt as to whether an ordinance is invalid, as conflicting with individual rights, should be resolved against the city. Slaughter v. O'Berry, 126 N.C. 181, 35 S.E. 241, 48 L.R.A. 442 (1900).

The courts will not inquire into the motives which prompt a municipality's legislative body to enact an ordinance which is valid on its face. Clark's Greenville, Inc. v. West, 268 N.C. 527, 151 S.E.2d 5 (1966).

Courts Will Be Slow to Interfere. - By this section discretionary power is vested in the city authorities, and the courts will be slow to interfere when the ordinance is not contrary to the laws of the State and no fraud, dishonesty, or oppression is charged. State v. Austin, 114 N.C. 855, 19 S.E. 919 (1894).

Unless municipality's action is so clearly unreasonable as to amount to oppression and manifest abuse of discretion, courts will be slow to interfere, and then the power of the court will be exercised with great caution and only in a clear case. Jones v. Town of N. Wilkesboro, 150 N.C. 646, 64 S.E. 866 (1909).

Scope of Courts' Review. - Where town passed ordinance pursuant to its police power as provided under G.S. 160A-186 and expressly stated that its purpose was to protect the health, safety and welfare of the town, review of validity of such ordinance would be to determine if the police power had been exercised within the constitutional limitations imposed by both the state and federal Constitutions. Such review would not include an analysis of the motives which prompted the passage of the ordinance, because so long as an act is not forbidden, the wisdom of the enactment is exclusively a legislative decision. Town of Atlantic Beach v. Young, 307 N.C. 422, 298 S.E.2d 686, appeal dismissed, 462 U.S. 1101, 103 S. Ct. 2446, 77 L. Ed. 2d 1328 (1983).

As to stay of federal court action, see Brown v. Brannon, 399 F. Supp. 133 (M.D.N.C. 1975), aff'd, 535 F.2d 1249 (4th Cir. 1976).

Challenge to Constitutionality of Criminal Statute or Ordinance in Action to Enjoin Enforcement. - Notwithstanding the general rule that the constitutionality of a statute or ordinance purporting to create a criminal offense may not be challenged in an action to enjoin its enforcement, a well-established exception permits such action when injunctive relief is essential to the protection of property rights and the rights of persons against injuries otherwise irremediable. Raleigh Mobile Home Sales, Inc. v. Tomlinson, 7 N.C. App. 289, 172 S.E.2d 276, aff'd, 276 N.C. 661, 174 S.E.2d 542 (1970).

Succeeding boards of commissioners are deemed to act subject to the provisions of previous ordinances passed by their predecessors in authority, until they see fit to repeal them. Hutchins v. Town of Durham, 118 N.C. 457, 24 S.E. 723 (1896).

General Laws Prevail over Ordinances. - Municipal bylaws and ordinances must be in harmony with the general laws of the State, and whenever they come in conflict with the general laws, the bylaws and ordinances must give way. Washington v. Hammond, 76 N.C. 33 (1877); State v. Stevens, 114 N.C. 873, 19 S.E. 861 (1894); State v. Williams, 283 N.C. 550, 196 S.E.2d 756 (1973).

Although the majority of cases dealing with a conflict between a municipal ordinance and a state statute have arisen in criminal actions, the same principles apply in civil causes. Greene v. City of Winston-Salem, 287 N.C. 66, 213 S.E.2d 231 (1975).

In determining whether the General Assembly intended to provide statewide regulation of the land application of biosolids to the exclusion of local regulation, the court must ascertain if the General Assembly has shown a clear legislative intent to provide a complete and integrated regulatory scheme. Granville Farms, Inc. v. County of Granville, 170 N.C. App. 109, 612 S.E.2d 156 (2005).

Legislative Classifications to Bear Reasonable Relation to Purpose. - So long as classification made by ordinance bears some reasonable relationship to the public welfare which the ordinance seeks to promote, the ordinance will not be rendered unconstitutional merely because persons in one class derive some incidental competitive advantage over those in another. Raleigh Mobile Home Sales, Inc. v. Tomlinson, 7 N.C. App. 289, 172 S.E.2d 276, aff'd, 276 N.C. 661, 174 S.E.2d 542 (1970).

The equal protection clauses of the United States and North Carolina Constitutions impose upon law-making bodies the requirement that any legislative classification be based on differences that are reasonably related to the purposes of the act in which it is found. State v. Greenwood, 280 N.C. 651, 187 S.E.2d 8 (1972).

Authority to abate nuisances is liberally construed by the courts for the benefit of the citizens. State v. Beacham, 125 N.C. 652, 34 S.E. 447 (1899).

No Liability for Failure to Enact or Enforce Ordinances. - A municipal corporation is not civilly liable for failure to pass ordinances to preserve the public health or otherwise promote the public good, nor for any omission to enforce the ordinances enacted under the legislative powers granted in its charter or to see that they are properly observed by its citizens or by those who may be resident within the corporate limits. Bunch v. Edenton, 90 N.C. 431 (1886); Hull v. Town of Roxboro, 142 N.C. 453, 55 S.E. 351 (1906); Harrington v. Town of Greenville, 159 N.C. 632, 75 S.E. 849 (1912).

City is liable in damages for failure to abate a nuisance that amounts to an obstruction in a street in a reasonable time. Dillon v. City of Raleigh, 124 N.C. 184, 32 S.E. 548 (1899).

When Owner Is Entitled to Compensation for Abatement of Nuisance. - An owner of property is not entitled to compensation for property rightfully destroyed or damaged by a city in abating a nuisance; the reason for this is that the destruction or damage is for public safety or health and is not a taking of private property for public use without compensation or due process in the constitutional sense. Rhyne v. Town of Mount Holly, 251 N.C. 521, 112 S.E.2d 40 (1960).

A municipality is liable for impairing, removing or destroying property, ostensibly in the abatement of a nuisance, where the thing or condition in question is not a nuisance per se, under statute or in fact, or where the thing or condition has not been declared to be a nuisance. Rhyne v. Town of Mount Holly, 251 N.C. 521, 112 S.E.2d 40 (1960).

As to legislative authority of board of aldermen of Winston-Salem, see Southern Ry. v. City of Winston-Salem, 275 N.C. 465, 168 S.E.2d 396 (1969).

Conflict Between Regulation Adopted by State Agency and Municipal Ordinance - Provision of the Gastonia (North Carolina) City Code that governed outdoor billboards conflicted with a regulation that was adopted by the North Carolina Department of Transportation (DOT) to implement North Carolina's Outdoor Advertising Control Act, G.S. 136-126 et seq., and was preempted by the DOT's regulation. Morris Communs. Corp. v. Bd. of Adjustment, 159 N.C. App. 598, 583 S.E.2d 419, appeal dismissed sub nom., 357 N.C. 658, 590 S.E.2d 269 (2003).

Judgment affirming a zoning board's decision upholding a zoning administrator's determination that a billboard violated a local zoning ordinance was error because the North Carolina Department of Transportation's outdoor advertising regulations authorized relocation of a billboard within certain limitations, and pursuant to G.S. 160A-174(b)(2) those regulations preempted the local zoning ordinance. Lamar OCI South Corp. v. Stanly County Zoning Bd. of Adjustment, 186 N.C. App. 44, 650 S.E.2d 37 (2007), aff'd, in part, review improvidently allowed, in part, 362 N.C. 670, 669 S.E.2d 322 (2008).

Ordinance for State-Owned Beach. - Because the renourishment projects undertaken by the town to restore ocean turtle habitat were publicly financed sand placement projects, title to the newly-created beach was vested in the State, and despite the protests of ocean front property owners, the appellate court could find nothing in the State Lands Act, codified at G.S. 146-1 et seq., which limited the authority of a town or city to enact regulations in order to protect a public beach located within its municipal limits. Slavin v. Town of Oak Island, 160 N.C. App. 57, 584 S.E.2d 100, notice of appeal dismissed, cert. denied, 357 N.C. 659, 590 S.E.2d 271 (2003).

Applied in State v. Underwood, 283 N.C. 154, 195 S.E.2d 489 (1973); Smith v. Keator, 21 N.C. App. 102, 203 S.E.2d 411 (1974); Craig v. County of Chatham, 143 N.C. App. 30, 545 S.E.2d 455 (2001), aff'd in part and rev'd in part, 356 N.C. 40, 565 S.E.2d 172, 2002 N.C. LEXIS 539 (2002).

Cited in Smith v. Keator, 285 N.C. 530, 206 S.E.2d 203 (1974); U.T., Inc. v. Brown, 457 F. Supp. 163 (W.D.N.C. 1978); Batch v. Town of Chapel Hill, 92 N.C. App. 601, 376 S.E.2d 22 (1989); Board of Adjustment v. Town of Swansboro, 108 N.C. App. 198, 423 S.E.2d 498 (1992); Homebuilders Ass'n v. City of Charlotte, 336 N.C. 37, 442 S.E.2d 45 (1994); Moore v. City of Creedmoor, 120 N.C. App. 27, 460 S.E.2d 899 (1995); Lamar Outdoor Adver. v. City of Hendersonville Zoning Bd. of Adjustment, 155 N.C. App. 516, 573 S.E.2d 637 (2002); Williams v. Blue Cross Blue Shield, 357 N.C. 170, 581 S.E.2d 415 (2003); Barris v. Town of Long Beach, 208 N.C. App. 718, 704 S.E.2d 285 (2010); Town of Beech Mt. v. Genesis Wildlife Sanctuary, Inc., 247 N.C. App. 444, 786 S.E.2d 335 (2016); LMSP, LLC v. Town of Boone, 260 N.C. App. 388, 818 S.E.2d 314 (2018).

II. SUNDAY ORDINANCES.

Constitutionality Generally. - Ordinances prohibiting certain activities on Sunday, enacted pursuant to this section, are not in contravention of N.C. Const., Art. I, § 13. State v. McGee, 237 N.C. 633, 75 S.E.2d 783, appeal dismissed, 346 U.S. 802, 74 S. Ct. 50, 98 L. Ed. 334, rehearing denied, 346 U.S. 918, 74 S. Ct. 272, 98 L. Ed. 413 (1953).

Sunday observance ordinances, when they proscribe buying and selling, whether it be tangible merchandise or a ticket to an amusement or a sporting event, regulate trade under the broad definition of trade which has been adopted by the Supreme Court. Since, however, these city ordinances are passed under general laws, with reference to them there is no conflict between the exercise of the police power and N.C. Const., Art. II, § 24. State v. Smith, 265 N.C. 173, 143 S.E.2d 293 (1965).

The provisions of N.C. Const., Art. I, § 13 and 19, do not deprive the legislature of authority to prohibit by a statute, otherwise valid, the carrying on of and engaging in, on Sunday, any and all labor and the operation of industrial and commercial pursuits, except for works of necessity and acts which, themselves, are in exercise of the constitutional right to worship. The legislature may delegate this power to municipalities. Such legislation is within the police power of the State and, nothing else appearing, is not a violation of U.S. Const., Amends. I and XIV. Raleigh Mobile Home Sales, Inc. v. Tomlinson, 276 N.C. 661, 174 S.E.2d 542 (1970).

Enactment of Sunday regulations comes within the police power, and the General Assembly or a municipal governing board exercising delegated power may enact such regulations provided the classifications of those affected are based upon reasonable distinctions, affect all persons similarly situated, and have some reasonable relation to the public peace, welfare, and safety. Clark's Charlotte, Inc. v. Hunter, 261 N.C. 222, 134 S.E.2d 364 (1964).

Power to enact Sunday ordinances has been delegated to municipalities of the State. State v. Trantham, 230 N.C. 641, 55 S.E.2d 198 (1949).

Reasonable and Nondiscriminatory Ordinances Upheld. - When enacted by cities and towns under general laws, Sunday observance ordinances which are reasonable and do not discriminate within a class of competitors similarly situated have been upheld as a valid exercise of delegated police power. State v. Smith, 265 N.C. 173, 143 S.E.2d 293 (1965).

Ordinance regulating sale of merchandise on Sunday held valid. Clark's Greenville, Inc. v. West, 268 N.C. 527, 151 S.E.2d 5 (1966).

Sunday observance ordinances adopted in the exercise of the police power conferred by the General Assembly upon cities and towns have been upheld by the Supreme Court. Whitney Stores, Inc. v. Clark, 277 N.C. 322, 177 S.E.2d 418 (1970).

Validity of Ordinance Dependent on Reasonable Relation to Legitimate Objective. - The validity of a Sunday closing statute or ordinance depends upon its reasonable relation to the accomplishment of the State's legitimate objective, which, in this instance, is the promotion of the public health, safety, morals and welfare by the establishment of a day of rest and relaxation. Legislation for this purpose, like other legislation, may not discriminate arbitrarily either between persons, or groups of persons, or between activities which are prohibited and those which are permitted. State v. Greenwood, 280 N.C. 651, 187 S.E.2d 8 (1972).

The general rule is that the enactment of Sunday regulations is a legitimate exercise of the police power, and that the classification on which a Sunday law is based is within the discretion of the legislative branch of the government or within the discretion of the governing body of a municipality clothed with power to enact and enforce ordinances for the observance of Sunday, and will be upheld, provided the classification is founded upon reasonable distinctions, affects all persons similarly situated or engaged in the same business without discrimination, and has some reasonable relation to the public peace, welfare and safety. State v. Greenwood, 280 N.C. 651, 187 S.E.2d 8 (1972).

Difference in Treatment of Businesses Must Have Reasonable Basis. - The objective of a municipal ordinance being the establishment of Sunday as a day of general rest and relaxation, the difference in treatment by the ordinance of two types of business must be supported by a reasonable basis for the conclusion that one, substantially more than the other, will interfere with such use and enjoyment of the day. Raleigh Mobile Home Sales, Inc. v. Tomlinson, 276 N.C. 661, 174 S.E.2d 542 (1970).

Burden of Showing Absence of Reasonable Basis on Complainant. - The legislative body has wide discretion in determining which activities do and which activities do not interfere with the observance of Sunday as a day of general rest and relaxation sufficiently to justify the prohibition of those activities on that day. The burden rests upon the person complaining to establish the absence of a reasonable basis for such determination. Raleigh Mobile Home Sales, Inc. v. Tomlinson, 276 N.C. 661, 174 S.E.2d 542 (1970).

Prohibition of Ordinary Business Pursuits. - It is against the public policy of the State that one should pursue his ordinary business calling on Sunday, and it is very generally understood not only that ordinary business pursuits may be regulated, but altogether prohibited on Sunday. State v. Medlin, 170 N.C. 682, 86 S.E. 597 (1915); State v. Burbage, 172 N.C. 876, 89 S.E. 795 (1916).

Sunday closing ordinance which singled out and banned the operation of billiard halls on Sunday, but permitted other businesses which provided facilities for recreation, sports and amusements, which were potentially as equally disruptive, violated the equal protection clauses of the North Carolina and United States Constitutions. State v. Greenwood, 280 N.C. 651, 187 S.E.2d 8 (1972).

Opening of Drugstores Only. - An ordinance of a town may, under the provisions of this section, prohibit the opening of all places of business on Sunday, except drugstores, and it is not an unreasonable regulation, under the police power of the town, inasmuch as drugstores are open all day Sunday, for the governing authorities to further provide that they may sell articles of common use which are quasi-necessities to many, such as mineral waters, soft drinks, cigars and tobacco, only between certain hours of that day. State v. Medlin, 170 N.C. 682, 86 S.E. 597 (1915).

Failure to Except Department Stores Upheld. - A municipal ordinance prohibiting generally the operation of all businesses within a municipality on Sunday, but excepting certain businesses, including hotels, drugstores, magazine stands, etc., did not result in unlawful discrimination in regard to general department stores, even though such stores had departments selling the same types of goods as stores within the classifications excepted from the ordinance, since the classification of general department stores, as distinguished from drugstores, bakeries, etc., was based upon a reasonable distinction and the ordinance operated equally upon all within several classifications. Clark's Charlotte, Inc. v. Hunter, 261 N.C. 222, 134 S.E.2d 364 (1964).

Sunday observance ordinance classifying "sporting goods and toys" as prohibited items and live bait as permitted was not unreasonable, arbitrary or discriminatory. S.S. Kresge Co. v. Tomlinson, 275 N.C. 1, 165 S.E.2d 236 (1969).

Prohibition of Sales of Mobile But Not Conventional Homes. - A municipal ordinance which prohibited the sale on Sunday of mobile homes but which did not prohibit the sale on Sunday of conventional homes was valid, since a classification based on the differences between the two types of selling, i.e., presence or absence of traffic, congestion, and noise, bore a reasonable relation to the purpose of the ordinance in establishing Sunday as a day of rest and relaxation. Raleigh Mobile Home Sales, Inc. v. Tomlinson, 276 N.C. 661, 174 S.E.2d 542 (1970).

Sale of Coca-Cola. - Regulating the sale of merchandise, drinks, etc., on Sunday is a valid exercise of the police powers of an incorporated city or town. And while the service of meals within the municipality at restaurants, etc., was a necessity (permitting the sale of coffee, tea, etc.), the sale of Coca-Cola as a part of the meals could be prohibited by ordinance. State v. Weddington, 188 N.C. 643, 125 S.E. 257 (1924).

Differential Fines Upheld. - An ordinance of a town, authorized by statute, imposing a fine of $25.00 upon drugstores for selling cigars, etc., on Sunday, and a fine of $5.00 for the same offense upon restaurants, cafes, and lunch stands, declaring the same to be a misdemeanor, related to distinct and easily severable occupations, and in the absence of any finding that those engaged in them came in competition with each other, the ordinance would not be declared unconstitutional and invalid upon the ground that it was discretionary against the owners of drugstores. State v. Davis, 171 N.C. 809, 89 S.E. 40 (1916).

III. OTHER SPECIFIC ORDINANCES.

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Classification of Occupations. - The General Assembly or municipal corporation has the power to classify different occupations, provided the classification is not unreasonable and oppressive, and usually the extent to which the power will be exercised is for the General Assembly or the governing body of the municipality. State v. Davis, 171 N.C. 809, 89 S.E. 40 (1916). See also, State v. Davis, 157 N.C. 648, 73 S.E. 130 (1911); Smith v. Wilkins, 164 N.C. 135, 80 S.E. 168 (1913).

Power to Close Business at Certain Hours. - The right of a city to restrict hours of business is restricted to cases when it is for the protection and benefit of the public. It has no power to require a merchant to close his store at an early hour because other merchants so desire to close all stores at a regular early hour. State v. Ray, 131 N.C. 814, 42 S.E. 960 (1902).

Sitting in Place of Business After Closing Time. - A city has power to restrict the use of property insofar as it may injure others, but it has no power to provide against a person sitting in his place of business after a time prescribed for closing it. State v. Thomas, 118 N.C. 1221, 24 S.E. 535 (1896).

City May Proscribe Obscenity Not Forbidden by State Law. - Under subsection (b) of this section, notwithstanding the existence of a general statewide law relating to obscene displays and publications, a city may enact an ordinance prohibiting and punishing conduct not forbidden by such statewide law. State v. Tenore, 280 N.C. 238, 185 S.E.2d 644 (1972).

Nothing in G.S. 14-190.1 to 14-190.9, statewide laws relating to obscene literature and exhibitions and to indecent exposure, expresses or indicates an intent by the General Assembly to preclude cities and towns under this section and G.S. 160A-181 from enacting and enforcing ordinances requiring a higher standard of conduct or condition within their respective jurisdictions. State v. Tenore, 280 N.C. 238, 185 S.E.2d 644 (1972).

As to the regulation of massage parlors, see Cheek v. City of Charlotte, 273 N.C. 293, 160 S.E.2d 18 (1968).

Indecent Language or Cursing. - An ordinance which forbids the use of "abusive or indecent language, cursing, swearing or any loud or boisterous talking, hallooing or any other disorderly conduct" within the corporate limits of a town, and imposes a fine of $25.00 for a violation of it, may be enacted by proper authorities under the powers granted to them in the general law, and such an ordinance is reasonable. State v. Merritt, 83 N.C. 677 (1880); State v. McNinch, 87 N.C. 567 (1882); State v. Cainan, 94 N.C. 880 (1886); State v. Earnhardt, 107 N.C. 789, 12 S.E. 426 (1890).

Prohibition on Sex Offenders Entering Public Parks. - Woodfin, N.C. Ordinances § 130.03, which prohibited registered sex offenders from knowingly entering any public park owned and operated by a town, was rationally related to its intended purpose of protecting the health and safety of the citizens of the town; the town acted within its delegated police power to enact and enforce the ordinance for the purpose of promoting citizen safety, as permitted by G.S. 160A-174. Standley v. Town of Woodfin, 186 N.C. App. 134, 650 S.E.2d 618 (2007), aff'd, 362 N.C. 328, 661 S.E.2d 728 (2008).

Woodfin, N.C. Ordinance § 130.03 was constitutional under the Fourteenth Amendment of the United States Constitution and N.C. Const., Art. I, §§ 19 and 35 as: (1) a sex offender's alleged liberty interest to enter a park owned by a town to have barbecues and enjoy nature was not protected by the right to intrastate travel, (2) an asserted liberty interest to freely roam in parks was not a fundamental right, (3) a town had been delegated the authority to prohibit acts detrimental to its citizens' health, safety, or welfare by G.S. 160A-174, (4) G.S. 14-208.5 recognized that sex offenders posed a high risk of engaging in sex offenses, and (5) Woodfin, N.C. Ordinance § 130.03 was rationally related to a legitimate government interest in protecting children and other visitors to parks owned and operated by the town from sexual attacks. Standley v. Town of Woodfin, 362 N.C. 328, 661 S.E.2d 728 (2008).

Town commissioners have no authority to make it unlawful to insult an officer while in the discharge of his duty, nor to provide a fine for one convicted of such offense. State v. Clay, 118 N.C. 1234, 24 S.E. 492 (1896).

Conflict with State Building Code. - An interpretation of this section to allow a city ordinance requiring sprinkler systems, thus empowering a city to ignore explicit statewide legislative enactments, would, in effect, permit a city to amend the North Carolina Building Code by the simple expedient of codifying a contested ordinance as a part of its fire prevention code and thereby to evade the clear requirements of G.S. 143-138(e). Greene v. City of Winston-Salem, 287 N.C. 66, 213 S.E.2d 231 (1975).

Regulation of Gasoline Stations. - That the regulation of gasoline filling or gasoline storage stations comes within the police power of the State is freely conceded; and that such power is specifically conferred upon the plaintiff is likewise conceded. Town of Wake Forest v. Medlin, 199 N.C. 83, 154 S.E. 29 (1930).

It is not necessary to the validity of an ordinance regulating the establishment of gasoline filling stations in a municipality that it substantially comply with the provisions of the statutes as to zoning, since the regulation of filling stations comes within the State police power which has been conferred on municipalities by the general law. Shuford v. Town of Waynesville, 214 N.C. 135, 198 S.E. 585 (1938).

As to the storage of gasoline, see City of Fayetteville v. Spur Distrib. Co., 216 N.C. 596, 5 S.E.2d 838 (1939).

Fluoridation Ordinance. - A municipal ordinance for the fluoridation of the city water supply is enacted in the exercise of public policy, and the courts will not interfere therewith in the absence of a showing that the ordinance is so unreasonable, oppressive, and subversive as to amount to an abuse rather than a legitimate exercise of the legislative power. Stroupe v. Eller, 262 N.C. 573, 138 S.E.2d 240 (1964).

Mobile Home Is Not a Nuisance Per Se. - Subdivision (26) of former G.S. 160-200 conferred upon cities and towns the power to prevent and abate nuisances, but a mobile home is not a nuisance per se. Town of Conover v. Jolly, 277 N.C. 439, 177 S.E.2d 879 (1970).

Mobile Home May Not Be Prohibited Per Se. - A well-constructed and equipped mobile home connected with the public water, sewer and electric systems could not be deemed per se "detrimental to the health, morals, comfort, safety, convenience and welfare of the people" of a town within the purview of subdivision (6) of former G.S. 160-200; consequently, that subdivision did not confer upon a municipality the authority to enact an ordinance prohibiting the use anywhere within its limits of a single mobile home as a permanent residence. Town of Conover v. Jolly, 277 N.C. 439, 177 S.E.2d 879 (1970).

Zoning Requirements for Mobile Homes. - Mobile homes are sufficiently different from other types of housing so that there is a rational basis for placing different requirements upon them pursuant to a zoning ordinance. Currituck County v. Willey, 46 N.C. App. 835, 266 S.E.2d 52, cert. denied, 301 N.C. 234, 283 S.E.2d 131 (1980).

Zoning Ordinance Preempted by ABC Permit. - In case in which petitioner, without objection by respondent board, argued that the decision of the ABC Commission to grant him a permit preempted respondent's denial of his special exception use permit request, since the zoning ordinance, upon which respondent's denial was based, attempted to regulate the sale of alcoholic beverages, which is a violation of State law, the trial court did not err in concluding that petitioner, as the holder of a valid ABC permit issued by the State Alcoholic Beverage Control Commission, was entitled to be issued a city beer license, and in ordering the tax collector of the city to issue any city license. Melkonian v. Board of Adjustment, 85 N.C. App. 351, 355 S.E.2d 503, cert. denied and appeal dismissed, 320 N.C. 631, 360 S.E.2d 91 (1987).

Abatement of Encroachment on Street by Buildings. - Any permanent structure which materially encroaches upon a public street and impedes travel is a nuisance per se, and may be abated, notwithstanding space is left for the passage of the public; a failure on the part of the city to abate it in a reasonable time will make it liable as a joint tort-feasor. Graham v. City of Charlotte, 186 N.C. 649, 120 S.E. 466 (1923).

Forbidding Lumber Yards in Residential Sections. - It is within the valid discretionary exercise of the police powers of a municipality to pass an ordinance forbidding the erection of lumber yards within a long-established, exclusively residential portion, and when this discretionary power has not been abused the courts will not interfere. Turner v. City of New Bern, 187 N.C. 541, 122 S.E. 469 (1924); Angelo v. City of Winston-Salem, 193 N.C. 207, 136 S.E. 489, aff'd, 274 U.S. 725, 47 S. Ct. 763, 71 L. Ed. 1329 (1927).

Disinfection of Secondhand Clothing. - A city has power to require that a dealer in secondhand clothing turn them over to the city to be disinfected, and exercise of such power cannot be considered as a restriction of an owner over his property, but only the proper and lawful use of authority to protect the health of its citizens from diseases. Rosenbaum v. City of New Bern, 118 N.C. 83, 24 S.E. 1 (1896).

A municipal corporation has a legal right to destroy mosquitoes detrimental to the health and comfort of its residents. Moore v. Town of Plymouth, 249 N.C. 423, 106 S.E.2d 695 (1959).

Regulation of Perishable Food Markets. - A city, in the exercise of statutory authority, may enact a valid penal ordinance as affecting the health of its citizens, and under its police power, require that meats, fish, oysters, and perishable matter be sold at a sanitary market building containing refrigeration and other sanitary methods, under proper inspection, where adequate accommodation may be obtained at a reasonable rental, not for profit, and the city may exclude such business within a prescribed territory therefrom, the location of the markethouse being reasonably suitable to the business or trades specified. Angelo v. City of Winston-Salem, 193 N.C. 207, 136 S.E. 489, aff'd, 274 U.S. 725, 47 S. Ct. 763, 71 L. Ed. 1329 (1927).

Board of town commissioners could forbid the keeping of hog pens in the town to such an extent as they might deem necessary to prevent nuisances to the public, and, indeed, they could have done so without express authority. State v. Hord, 122 N.C. 1092, 29 S.E. 952 (1898).

Ordinance Against Running of Hogs at Large. - A town ordinance declaring that "all hogs, etc., found running at large within the town" shall be taken up or impounded, is valid, whether the owner resides within the corporate limits of such town or not. Rose v. Hardie, 98 N.C. 44, 4 S.E. 41 (1887).

Regulation of Swine Farms. - County's ordinances attempting to regulate swine farms were invalid because the state had established a comprehensive scheme of regulation that indicated the General Assembly's intention to regulate this area on a state-wide basis, leaving no room for local regulation. Craig v. County of Chatham, 356 N.C. 40, 565 S.E.2d 172 (2002).

Town ordinance dealing with dogs running at large was not inconsistent with former G.S. 106-381, which statute was designed to provide minimum protection against vicious dogs in all parts of the State (rural, urban, small villages and large cities). With more concentrated population, cities are justified in adopting stricter regulations for dogs and are authorized to require a higher standard of conduct or condition with respect to the keeping of dogs within its corporate limits than was required by former G.S. 106-381 for the State generally. Pharo v. Pearson, 28 N.C. App. 171, 220 S.E.2d 359 (1975).

Ordinance Limiting Number of Dogs. - Nashville, N.C. Ordinance § 4.3, which limits the number of dogs allowed on property, is not unconstitutional; the ordinance did not set an arbitrary, immutable limit on the number of pets, but, rather, the number of dogs allowed was based on the square footage of the lot, and there was no restriction on the number of dogs less than five months old. The record revealed that the town enacted the ordinance for the purpose of reducing noise and odor problems within the city limits, which were clearly legitimate public purposes, and a limitation on the number of dogs per lot was directly connected to these objectives. State v. Maynard, 195 N.C. App. 757, 673 S.E.2d 877 (2009), review denied, stay denied, 363 N.C. 259, 677 S.E.2d 165 (2009).

Paved Parking Lots. - Provision of city ordinance requiring paved parking lots, challenged on due process and equal protection grounds, held valid. Grace Baptist Church v. City of Oxford, 320 N.C. 439, 358 S.E.2d 372 (1987).

Towing Ordinance. - In a case involving the scope of a municipality's power to regulate both the business of towing vehicles parked in private lots and the use of mobile telephones while driving, the Supreme Court held that the Town of Chapel Hill is generally permitted to regulate vehicle towing and that it acted within its authority by enacting signage, notice, and payment requirements for towing from private lots; however, Chapel Hill exceeded those powers by imposing a fee schedule and prohibiting towing companies from charging credit card fees. King v. Town of Chapel Hill, 367 N.C. 400, 758 S.E.2d 364 (2014).

City Ordinance on Mobile Phone Usage Prohibited. - Legislature's comprehensive scheme regulating mobile telephone usage on the state's streets and highways precludes municipalities from intruding into this sphere wholly occupied by the state. King v. Town of Chapel Hill, 367 N.C. 400, 758 S.E.2d 364 (2014).

Town had authority under its Development Ordinance as authorized by G.S. 160A-372 to require plaintiff to take future road plans into account in designing her subdivision and denial of plaintiff's permit for her failure to do so was neither ultra vires nor unconstitutionally vague. Batch v. Town of Chapel Hill, 326 N.C. 1, 387 S.E.2d 655, cert. denied, 496 U.S. 931, 110 S. Ct. 2631, 110 L. Ed. 2d 651 (1990).

Waste disposal is a recognized function of local government and a service consistent with governmental responsibility under the State's delegation of police power. Stillings v. City of Winston-Salem, 63 N.C. App. 618, 306 S.E.2d 489 (1983), rev'd on other grounds, 311 N.C. 689, 319 S.E.2d 233 (1984).

Regulatory Authority of State over Speed of Trains May Not Be Delegated to Cities and Towns. - Section 434 of the Federal Railway Safety Act of 1970, 45 U.S.C., says a state may adopt the law, rule, or regulation regulating the speed of trains within city limits. It does not say the state may delegate to the cities and towns in the state the power to do so. Even though the state may delegate powers to its state created municipalities through enabling statutes, there is no authority for the proposition that the state may delegate to its cities powers it is authorized by Congress to exercise. Johnson v. Southern Ry., 654 F. Supp. 121 (W.D.N.C. 1987).

Opinions of Attorney General

Local Ordinance Which Conflicts With State Law. - A town municipal ordinance prohibiting the location of gill nets where they are expressly permitted by State law violates subdivision (b)(2) of this section and is, therefore, invalid to the extent of the conflict with State law. See opinion of Attorney General to Preston P. Pate, Jr., Director, Division of Marine Fisheries, 1998 N.C.A.G. 31 (7/22/98).

§ 160A-175. Enforcement of ordinances.

  1. A city shall have power to impose fines and penalties for violation of its ordinances, and may secure injunctions and abatement orders to further insure compliance with its ordinances as provided by this section.
  2. Unless the Council shall otherwise provide, violation of a city ordinance is a misdemeanor or infraction as provided by G.S. 14-4. An ordinance may provide by express statement that the maximum fine, term of imprisonment, or infraction penalty to be imposed for a violation is some amount of money or number of days less than the maximum imposed by G.S. 14-4.
  3. An ordinance may provide that violation shall subject the offender to a civil penalty to be recovered by the city in a civil action in the nature of debt if the offender does not pay the penalty within a prescribed period of time after he has been cited for violation of the ordinance.
  4. An ordinance may provide for the recovery of a civil penalty by the city for violation of the fire prevention code of the State Building Code as authorized under G.S. 143-139.
  5. An ordinance may provide that it may be enforced by an appropriate equitable remedy issuing from a court of competent jurisdiction. In such case, the General Court of Justice shall have jurisdiction to issue such orders as may be appropriate, and it shall not be a defense to the application of the city for equitable relief that there is an adequate remedy at law.
  6. An ordinance that makes unlawful a condition existing upon or use made of real property may be enforced by injunction and order of abatement, and the General Court of Justice shall have jurisdiction to issue such orders. When a violation of such an ordinance occurs the city may apply to the appropriate division of the General Court of Justice for a mandatory or prohibitory injunction and order of abatement commanding the defendant to correct the unlawful condition upon or cease the unlawful use of the property. The action shall be governed in all respects by the laws and rules governing civil proceedings, including the Rules of Civil Procedure in general and Rule 65 in particular.
  7. Subject to the express terms of the ordinance, a city ordinance may be enforced by any one, all, or a combination of the remedies authorized and prescribed by this section.
  8. A city ordinance may provide, when appropriate, that each day's continuing violation shall be a separate and distinct offense.
  9. Notwithstanding any authority under this Article or any local act of the General Assembly, no ordinance regulating trees may be enforced on land owned or operated by a public airport authority.

In addition to an injunction, the court may enter an order of abatement as a part of the judgment in the cause. An order of abatement may direct that buildings or other structures on the property be closed, demolished, or removed; that fixtures, furniture, or other movable property be removed from buildings on the property; that grass and weeds be cut; that improvements or repairs be made; or that any other action be taken that is necessary to bring the property into compliance with the ordinance. If the defendant fails or refuses to comply with an injunction or with an order of abatement within the time allowed by the court, he may be cited for contempt, and the city may execute the order of abatement. The city shall have a lien on the property for the cost of executing an order of abatement in the nature of a mechanic's and materialman's lien. The defendant may secure cancellation of an order of abatement by paying all costs of the proceedings and posting a bond for compliance with the order. The bond shall be given with sureties approved by the clerk of superior court in an amount approved by the judge before whom the matter is heard and shall be conditioned on the defendant's full compliance with the terms of the order of abatement within a time fixed by the judge. Cancellation of an order of abatement shall not suspend or cancel an injunction issued in conjunction therewith.

History

(1971, c. 698, s. 1; 1985, c. 764, s. 35; 1993, c. 329, s. 4; 2013-331, s. 2.)

Local Modification. - City of Durham: 1987, c. 224; town of Pittsboro: 1987, c. 460, s. 28.

Editor's Note. - The Rules of Civil Procedure, referred to in this section, are found in G.S. 1A-1.

Effect of Amendments. - Session Laws 2013-331, s. 2, effective July 23, 2013, added subsection (h).

CASE NOTES

Procedure for abatement orders in subsection (e) of this section is constitutionally defective and may not be used in enforcing the substantive provisions of a city ordinance. U.T., Inc. v. Brown, 457 F. Supp. 163 (W.D.N.C. 1978).

Legislative Intent. - Subsection (f) of this section and G.S. 160A-365 demonstrate a general intent by the legislature to defer to the decisions of cities on which remedies and penalties shall be used to achieve enforcement of planning and zoning ordinances. Town of Pine Knoll Shores v. Evans, 104 N.C. App. 79, 407 S.E.2d 895 (1991).

This Section Limits City's Choice of Remedies and Penalties. - Under subsection (f) of this section and G.S. 160A-365, the choice of remedies and penalties for enforcement of planning and zoning ordinances remains with the city. The choice of remedies and penalties, however, is limited to those remedies and penalties available in this section. Town of Pine Knoll Shores v. Evans, 104 N.C. App. 79, 407 S.E.2d 895 (1991).

Certain Penalties Must Be Authorized to Be Imposed by Court. - Civil penalties and orders of abatement available under subsections (c) and (d) of this section must be authorized in a city's ordinance in order to be imposed by a court. That authorization may be either specific or general. Town of Pine Knoll Shores v. Evans, 104 N.C. App. 79, 407 S.E.2d 895 (1991).

Court May Issue Injunctions and Orders of Abatement Despite Absence of Ordinance Authorization. - The trial court may, in the absence of authorization in a city ordinance, and upon the request of the city, issue injunctions and orders of abatement for violation of ordinances that makes unlawful a condition existing upon or use made of a real property. Town of Pine Knoll Shores v. Evans, 104 N.C. App. 79, 407 S.E.2d 895 (1991).

Civil Penalty Not Allowed Where Not Authorized by Ordinance. - Judgment of the trial court permitting defendants to avoid, by payment of $2,000.00 to town, removing a deck which town contended defendants constructed in violation of town zoning ordinance was improper where a civil penalty was not authorized by town's ordinance and was not authorized by subsection (e); the fact that the civil penalty was to be paid at the option of defendants was immaterial, as where a party violating a city ordinance is given the option of paying a civil penalty, such optional penalty must nonetheless be authorized by the ordinance. Town of Pine Knoll Shores v. Evans, 104 N.C. App. 79, 407 S.E.2d 895 (1991).

Obscenity Ordinance Held Unconstitutional. - The procedural provisions of a city ordinance regulating commercial exploitation of obscenity, which provided civil penalties for violation and authorized the city manager to issue a citation to the violator describing the violation and assessing the penalty and to include in the citation notice that the city manager would instruct the city attorney to commence suit under subsection (c) of this section if the penalty was not paid in five days, was unconstitutional. U.T., Inc. v. Brown, 457 F. Supp. 163 (W.D.N.C. 1978).

Enforcement of Ordinances Through Injunctive Relief. - Although the General Assembly has given to municipalities the power to enforce ordinances through injunctive relief, a municipality must comply with the requirements of G.S. 1A-1, Rule 65, which requires a clear showing of specific facts of irreparable injury; the availability of injunctive relief as the appropriate ultimate remedy is not prima facie evidence establishing a municipality's right to injunctive relief prior to the resolution of a matter on its merits. Town of Knightdale v. Vaughn, 95 N.C. App. 649, 383 S.E.2d 460 (1989).

Parking Violations. - G.S. 1-54(2) did not bar a City's recovery against a driver for unpaid taxes and fines as it applied only to actions based on statutes that expressly provided for a penalty or forfeiture, the purpose of which was punitive, and the penalty at issue was civil in nature; G.S. 160A-175 granted the City the power to impose fines and penalties for the violation of its ordinances, and the penalties assessed against the driver were assessed pursuant to Greensboro, N.C. Code of Ordinances § 16-71, which was a municipal ordinance rather than a statute, for parking violations. City of Greensboro v. Morse, 197 N.C. App. 624, 677 S.E.2d 505 (2009).

Disposition of Proceeds of Civil Action to Recover Parking Penalties. - In any case in which a person is prosecuted and convicted and a fine is imposed for the violation of a parking ordinance, the fine so imposed must be paid, by directive of N.C. Const., Art. IX, § 7, to the county school fund. However, if a city chooses to maintain civil actions to recover the penalties imposed for parking violations, the proceeds of any judgment obtained would belong to the city, and the school fund would have no claim thereon. Cauble v. City of Asheville, 45 N.C. App. 152, 263 S.E.2d 8, aff'd in part and rev'd in part, 301 N.C. 340, 271 S.E.2d 258 (1980).

City had the authority to require confirmation of a sexually oriented business's zoning compliance in its business privilege license application and the authority to reject the business's privilege license application where zoning compliance was found wanting. Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 162 N.C. App. 603, 592 S.E.2d 205, cert. denied, 358 N.C. 543, 599 S.E.2d 43 (2004).

Public Trust Rights. - It was error to grant a town judgment notwithstanding a verdict in a condemnation case on a theory that the public trust doctrine made the taking noncompensable because (1) the theory was not raised on directed verdict, (2) the sua sponte order was entered months after final judgment, and (3) the town was estopped from asserting the town possessed rights taken as the town's complaint said the town did not, the town did not raise the issue at an "all other issues" hearing, at which the town disavowed the public trust doctrine, the town did not immediately appeal a vital ruling that the town condemned the property, and landowners introduced a scintilla of supporting evidence. Town of Nags Head v. Richardson, 260 N.C. App. 325, 817 S.E.2d 874 (2018), aff'd, 372 N.C. 349, 828 S.E.2d 154, 2019 N.C. LEXIS 523 (2019).

Applied in Cauble v. City of Asheville, 301 N.C. 340, 271 S.E.2d 258 (1980); Shavitz v. City of High Point, 177 N.C. App. 465, 630 S.E.2d 4 (2006), review denied, appeal dismissed, 361 N.C. 430, 648 S.E.2d 845 (2007).

Cited in Town of Nags Head v. Tillett, 314 N.C. 627, 336 S.E.2d 394 (1985); Town of Pine Knoll Shores v. Evans, 331 N.C. 361, 416 S.E.2d 4 (1992); Homebuilders Ass'n v. City of Charlotte, 336 N.C. 37, 442 S.E.2d 45 (1994); Blevins v. Denny, 114 N.C. App. 766, 443 S.E.2d 354 (1994).


§ 160A-176. Ordinances effective on city property outside limits.

Any city ordinance may be made effective on and to property and rights-of-way belonging to the city and located outside the corporate limits.

History

(1917, c. 136, subch. 5, s. 2; C.S., s. 2790; 1971, c. 698, s. 1; 1973, c. 426, s. 24.)

CASE NOTES

City's Code Not Applicable Outside of City Limits. - Trial court's order requiring a corporation to pay a city for water the corporation drew from its own well was reversed as, although under G.S. 160A-176, the city could have made its ordinances applicable on rights of way, Lumberton, N.C. Code of Ordinances § 23-22(a), (b), and (d) were only applicable to businesses within the city limits; the corporation's facility was outside of the city limits. City of Lumberton v. United States Cold Storage, Inc., 178 N.C. App. 305, 631 S.E.2d 165 (2006).


§ 160A-176.1. Ordinances effective in Atlantic Ocean.

  1. A city may adopt ordinances to regulate and control swimming, surfing and littering in the Atlantic Ocean adjacent to that portion of the city within its boundaries or within its extraterritorial jurisdiction; provided, however, nothing contained herein shall be construed to permit any city to prohibit altogether swimming and surfing or to make these activities unlawful.
  2. This section shall apply only to cities in the counties of Brunswick, Carteret, Currituck, Dare, Hyde, New Hanover, Onslow, and Pender.

History

(1973, c. 539, s. 1.)

Local Modification. - Wrightsville Beach: 1989, c. 611, s. 1, as amended by 2005-265, s. 1.

Editor's Note. - The section above has been codified at the direction of the Revisor of Statutes.

§ 160A-176.2. Ordinances effective in Atlantic Ocean.

  1. A city may adopt ordinances to regulate and control swimming, personal watercraft operation, surfing and littering in the Atlantic Ocean and other waterways adjacent to that portion of the city within its boundaries or within its extraterritorial jurisdiction; provided, however, nothing contained herein shall be construed to permit any city to prohibit altogether swimming or surfing or to make these activities unlawful.
  2. Subsection (a) of this section applies to the Towns of Atlantic Beach, Calabash, Cape Carteret, Carolina Beach, Caswell Beach, Duck, Emerald Isle, Holden Beach, Kill Devil Hills, Kitty Hawk, Manteo, Nags Head, Oak Island, Ocean Isle Beach, Southern Shores, Sunset Beach, Topsail Beach, and Wrightsville Beach, and the City of Southport only.

History

(1991, c. 494, ss. 1, 2; 1991 (Reg. Sess., 1992), c. 801; 1993, c. 67, s. 5; c. 125, s. 2; 1993 (Reg. Sess., 1994), c. 625, s. 1; 1997-48, s. 1; 2002-141, s. 1; 2004-203, s. 55.)

Editor's Note. - Session Laws 1991, c. 494, ss. 1 and 2, effective July 2, 1991, as amended by Session Laws 1991 (Reg. Sess., 1992), c. 801, effective June 29, 1992, has been codified as this section at the direction of the Revisor of Statutes.

Legal Periodicals. - For note, "A First Step in the Wrong Direction: Slavin v. Town of Oak Island and the Taking of Littoral Rights of Direct Beach Access," see 82 N.C.L. Rev. 1510 (2004).

Effect of Amendments. - Session Laws 2004-203, s. 55, effective August 17, 2004, inserted "Calabash" preceding "Cape Carteret" in subsection (b).

§ 160A-177. Enumeration not exclusive.

The enumeration in this Article or other portions of this Chapter of specific powers to regulate, restrict or prohibit acts, omissions, and conditions shall not be deemed to be exclusive or a limiting factor upon the general authority to adopt ordinances conferred on cities by G.S. 160A-174.

History

(1971, c. 698, s. 1.)

CASE NOTES

Cited in Homebuilders Ass'n v. City of Charlotte, 336 N.C. 37, 442 S.E.2d 45 (1994); King v. Town of Chapel Hill, 367 N.C. 400, 758 S.E.2d 364 (2014).


§ 160A-178. Regulation of solicitation campaigns, flea markets and itinerant merchants.

A city may by ordinance regulate, restrict or prohibit the solicitation of contributions from the public for any charitable or eleemosynary purpose, and also the business activities of itinerant merchants, salesmen, promoters, drummers, peddlers, flea market operators and flea market vendors or hawkers. These ordinances may include, but shall not be limited to, requirements that an application be made and a permit issued, that an investigation be made, that activities be reasonably limited as to time and place, that proper credentials and proof of financial stability be submitted, that not more than a stated percentage of contributions to solicitation campaigns be retained for administrative expenses, and that an adequate bond be posted to protect the public from fraud.

History

(1963, c. 789; 1971, c. 698, s. 1; 1987, c. 708, s. 8.)

CASE NOTES

As to unconstitutionality of solicitation ordinance containing 25% cost-of-solicitation limitation, as applied to unincorporated association formed for exerting political influence on state level, see Carolina Action v. Pickard, 465 F. Supp. 576 (W.D.N.C. 1979). See also, Carolina Action v. Pickard, 420 F. Supp. 310 (W.D.N.C. 1976).

Ordinance Requiring License to Beg or Solicit Contributions on Streets Upheld Under Former Law. - A city ordinance under former G.S. 160-200, requiring a license to be issued by the municipal authorities to beg upon the city streets or to solicit contributions for charitable or religious purposes, in accordance with whether the person or purpose was ascertained by such authorities as worthy or whether the moneys solicited would be properly applied, was a valid and undiscriminating exercise of a police power, and not unlawful as an interference with religious liberty of people or an obstruction to the lawful pursuit of business. State v. Hundley, 195 N.C. 377, 142 S.E. 330 (1928), decided under former § 160-200.

As to power to regulate peddling prior to 1963 amendment to former G.S. 160-200, authorizing municipalities to prohibit peddlers, etc., see State v. Byrd, 259 N.C. 141, 130 S.E.2d 55 (1963).


§ 160A-179. Regulation of begging.

A city may by ordinance prohibit or regulate begging or otherwise canvassing the public for contributions for the private benefit of the solicitor or any other person.

History

(1971, c. 698, s. 1.)

CASE NOTES

No Question as to Which Ordinance a County Sought to Enforce. - In a declaratory judgment action wherein an amended ordinance was the only ordinance codified in the county's code at the time the county filed its complaint to enforce the amended ordinance, which required sexually oriented businesses to become licensed among other requirements, the trial court did not err by denying the businesses' motion to dismiss the county's complaint for failing to plead in the complaint the section number and caption of the county ordinance sought to be enforced, as it was clear to the businesses what ordinance the county sought to enforce. Pitt County v. Deja Vue, Inc., 185 N.C. App. 545, 650 S.E.2d 12 (2007), review denied, 362 N.C. 361, 661 S.E.2d 737 (2008).


§ 160A-180. Regulation of aircraft overflights.

A city may by ordinance regulate the operation of aircraft over the city.

History

(1971, c. 698, s. 1.)

§ 160A-181. Regulation of places of amusement.

A city may by ordinance regulate places of amusement and entertainment, and may regulate, restrict or prohibit the operation of pool and billiard halls, dance halls, carnivals, circuses, or any itinerant show or exhibition of any kind. Places of amusement and entertainment shall include coffee houses, cocktail lounges, night clubs, beer halls, and similar establishments, but any regulations thereof shall be consistent with any permits or licenses issued by the North Carolina Alcoholic Beverage Control Commission.

History

(1917, c. 136, subch. 5, s. 1; 1919, cc. 136, 237; C.S., s. 2787; 1971, c. 698, s. 1; 1981, c. 412, ss. 4, 5.)

CASE NOTES

Sunday closing ordinance which singled out and banned the operation of billiard halls on Sunday, but permitted other businesses which provided facilities for recreation, sports and amusements, which were potentially as equally disruptive, violated the equal protection clauses of the North Carolina and United States Constitutions. State v. Greenwood, 280 N.C. 651, 187 S.E.2d 8 (1972).

Regulation of Dance Halls. - Under express provisions of former G.S. 160-200, cities had power, among other things, to license, prohibit, and regulate dance halls, and in the interest of public morals to provide for the revocation of such licenses, as a valid exercise of the State's inherent police power, made applicable to cities and towns generally. State v. Vanhook, 182 N.C. 831, 109 S.E. 65 (1921).

An ordinance requiring the consent of the board of directors of the city before keeping a dance hall therein was not objectionable as an arbitrary exercise of power, or as being at the pleasure of the board, but came within its limited legal discretion, which the courts would not permit it to abuse, but would not disturb in the absence of its abusive use. State v. Vanhook, 182 N.C. 831, 109 S.E. 65 (1921), decided under former § 160-200.

Regulation of Obscenity. - Nothing in G.S. 14-190.1 to 14-190.9, statewide laws relating to obscene literature and exhibitions and to indecent exposure, expresses or indicates an intent by the General Assembly to preclude cities and towns under G.S. 160A-174 and this section from enacting and enforcing ordinances requiring a higher standard of conduct or condition within their respective jurisdictions. State v. Tenore, 280 N.C. 238, 185 S.E.2d 644 (1972).

Applied in State v. Underwood, 283 N.C. 154, 195 S.E.2d 489 (1973).


§ 160A-181.1: Repealed by Session Laws 2019-111, s. 2.6(c), as amended by Session Laws 2020-3, s. 4.33(a), and Session Laws 2020-25, s. 51(a), (b), (d), effective June 19, 2020.

History

(1998-46, s. 1; repealed by 2019-111, s. 2.6(c), as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020.)

Editor's Note. - Former G.S. 160A-181.1 pertained to the regulation of sexually oriented businesses.

Session Laws 2019-111, s. 2.8, is a severability clause.

Session Laws 2019-111, s. 3.2 provided for the delayed repeal of this section, effective January 1, 2021, and applicable to local government development regulation decisions made on or after that date, and further provided that "Part II of this act clarifies and restates the intent of existing law and applies to ordinances adopted before, on, and after the effective date." Session Laws 2020-3, s. 4.33(a), extended the delayed repeal of this section, making it effective August 1, 2021, and applicable to local government development regulation decisions made on or after that date. Session Laws 2020-25, s. 51(a), (d), repealed Session Laws 2019-111, s. 3.2, and Session Laws 2020-3, s. 4.33, effective June 19, 2020.

Session Laws 2020-3, s. 5, is a severability clause.

Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:

"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or

"(2) July 1, 2021."

CASE NOTES

Constitutionality of City Zoning Ordinances. - City zoning requirements regarding sexually oriented businesses set forth by the city's zoning ordinances, pursuant to G.S. 160A-181.1, and imposed upon the city tax collector by a city ordinance, comported with the Constitutional requirements established by the United States Supreme Court; therefore, the city possessed the authority to allow the city tax collector to assess zoning compliance as part of the administration of the business privilege license tax and to deny a business privilege license to a sexually oriented business because the business sought to operate in violation of a zoning ordinance. Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 162 N.C. App. 603, 592 S.E.2d 205, cert. denied, 358 N.C. 543, 599 S.E.2d 43 (2004).

County ordinance requiring licensure and other conditions upon sexually oriented businesses was upheld as within the police powers of the county, pursuant to G.S. 153A-121, as no procedural or constitutional errors occurred by a trial court declaring the ordinance enforceable and requiring unlicensed businesses to cease operation. Pitt County v. Deja Vue, Inc., 185 N.C. App. 545, 650 S.E.2d 12 (2007), review denied, 362 N.C. 361, 661 S.E.2d 737 (2008).


§ 160A-182. Abuse of animals.

A city may by ordinance define and prohibit the abuse of animals.

History

(1917, c. 136, subch. 5, s. 1; 1919, cc. 136, 237; C.S., s. 2787; 1971, c. 698, s. 1.)

§ 160A-183. Regulation of explosive, corrosive, inflammable, or radioactive substances.

A city may by ordinance restrict, regulate or prohibit the sale, possession, storage, use, or conveyance of any explosive, corrosive, inflammable, or radioactive substances, or any weapons or instrumentalities of mass death and destruction within the city.

History

(1917, c. 136, subch. 5, s. 1; 1919, cc. 136, 237; C.S., s. 2787; 1971, c. 698, s. 1.)

§ 160A-184. Noise regulation.

A city may by ordinance regulate, restrict, or prohibit the production or emission of noises or amplified speech, music, or other sounds that tend to annoy, disturb, or frighten its citizens.

History

(1971, c. 698, s. 1; 1973, c. 426, s. 25.)

Local Modification. - Town of Kill Devil Hills: 1995, c. 84, s. 1; town of Kitty Hawk: 1995, c. 84, s. 1; town of Manteo: 1995, c. 196, s. 4; town of Nags Head: 1995, c. 84, s. 1; town of Southern Shores: 1995, c. 84, s. 1.

CASE NOTES

Prevention of Disturbing Noises. - The protection of the well-being and tranquility of a community by the reasonable prevention of disturbing noises is within the city's power to control nuisances. State v. Dorsett, 3 N.C. App. 331, 164 S.E.2d 607 (1968), decided prior to enactment of this section.

Applied in Jim Crockett Promotion, Inc. v. City of Charlotte, 706 F.2d 486 (4th Cir. 1983).

§ 160A-185. Emission of pollutants or contaminants.

A city may by ordinance regulate, restrict, or prohibit the emission or disposal of substances or effluents that tend to pollute or contaminate land, water, or air, rendering or tending to render it injurious to human health or welfare, to animal or plant life or to property, or interfering or tending to interfere with the enjoyment of life or property. A city may by ordinance regulate the illegal disposal of solid waste, including littering on public and private property, provide for enforcement by civil penalties as well as other remedies, and provide that such regulations may be enforced by city employees specially appointed as environmental enforcement officers. Any such ordinance shall be consistent with and supplementary to State and federal laws and regulations.

History

(1917, c. 136, subch. 5, s. 1; 1919, cc. 136, 237; C.S., s. 2787; 1949, c. 594, s. 2; 1971, c. 698, s. 1; 1973, c. 426, s. 26; 2001-512, s. 6.)

Editor's Note. - Session Laws 2001-512, s. 15, provides: "This act shall not be construed to obligate the General Assembly to appropriate any funds to implement the provisions of this act. Every agency to which this act applies shall implement the provisions of this act from funds otherwise appropriated or available to the agency."

CASE NOTES

Cited in Stanley v. Department of Conservation & Dev., 284 N.C. 15, 199 S.E.2d 641 (1973).


§ 160A-186. Regulation of domestic animals.

A city may by ordinance regulate, restrict, or prohibit the keeping, running, or going at large of any domestic animals, including dogs and cats. The ordinance may provide that animals allowed to run at large in violation of the ordinance may be seized and sold or destroyed after reasonable efforts to notify their owner.

History

(1917, c. 136, subch. 5, s. 1; 1919, cc. 136, 237; C.S., s. 2787; 1971, c. 698, s. 1.)

CASE NOTES

Through this section and G.S. 160A-174 the legislature has delegated to the municipalities a part of its police power which may be exercised to protect or promote the health, morals, order, safety and general welfare of society. Town of Atlantic Beach v. Young, 307 N.C. 422, 298 S.E.2d 686, appeal dismissed, 462 U.S. 1101, 103 S. Ct. 2446, 77 L. Ed. 2d 1328 (1983).

Scope of Review of Ordinance. - Where town passed ordinance pursuant to its police power as provided under this section and expressly stated that its purpose is to protect the health, safety and welfare of the town, review of validity of such ordinance will be to determine if the police power has been exercised within the constitutional limitations imposed by both the state and federal Constitutions. Such review will not include an analysis of the motives which prompted the passage of this ordinance, because so long as an act is not forbidden, the wisdom of the enactment is exclusively a legislative decision. Town of Atlantic Beach v. Young, 307 N.C. 422, 298 S.E.2d 686, appeal dismissed, 462 U.S. 1101, 103 S. Ct. 2446, 77 L. Ed. 2d 1328 (1983).

Ordinance forbidding the keeping of cows within a certain portion of the city is valid. State v. Stowe, 190 N.C. 79, 128 S.E. 481 (1925), decided under prior similar provisions.

Animal Control Ordinance Held Constitutional. - Nashville, N.C. Ordinance § 4.3, which limits the number of dogs allowed on property, is not unconstitutional; the ordinance did not set an arbitrary, immutable limit on the number of pets, but, rather, the number of dogs allowed was based on the square footage of the lot, and there was no restriction on the number of dogs less than five months old. The record revealed that the town enacted the ordinance for the purpose of reducing noise and odor problems within the city limits, which were clearly legitimate public purposes, and a limitation on the number of dogs per lot was directly connected to these objectives. State v. Maynard, 195 N.C. App. 757, 673 S.E.2d 877 (2009), review denied, stay denied, 363 N.C. 259, 677 S.E.2d 165 (2009).


§ 160A-187. Possession or harboring of dangerous animals.

A city may by ordinance regulate, restrict, or prohibit the possession or harboring within the city of animals which are dangerous to persons or property. No such ordinance shall have the effect of permitting any activity or condition with respect to a wild animal which is prohibited or more severely restricted by regulations of the Wildlife Resources Commission.

History

(1971, c. 698, s. 1; 1977, c. 407, s. 2.)

Cross References. - As to the power of counties to regulate, restrict, or prohibit the possession or harboring of dangerous animals, see G.S. 153A-131.


§ 160A-188. Bird sanctuaries.

A city may by ordinance create and establish a bird sanctuary within the city limits. The ordinance may not protect any birds classed as a pest under Article 22A of Chapter 113 of the General Statutes and the Structural Pest Control Act of North Carolina of 1955 or the North Carolina Pesticide Law of 1971. When a bird sanctuary has been established, it shall be unlawful for any person to hunt, kill, trap, or otherwise take any protected birds within the city limits except pursuant to a permit issued by the North Carolina Wildlife Resources Commission under G.S. 113-274(c) (1a) or under any other license or permit of the Wildlife Resources Commission specifically made valid for use in taking birds within city limits.

History

(1951, c. 411, ss. 1, 2; 1971, c. 698, s. 1; 1979, c. 830, s. 3.)

§ 160A-189. Firearms.

A city may by ordinance regulate, restrict, or prohibit the discharge of firearms at any time or place within the city except when used in defense of person or property or pursuant to lawful directions of law-enforcement officers, and may regulate the display of firearms on the streets, sidewalks, alleys, or other public property. Nothing in this section shall be construed to limit a city's authority to take action under Article 1A of Chapter 166A of the General Statutes.

History

(1971, c. 698, s. 1; 2012-12, s. 2(zz).)

Effect of Amendments. - Session Laws 2012-12, s. 2(zz), effective October 1, 2012, substituted "Article 1A of Chapter 166A of the General Statutes" for "Article 36A of Chapter 14 of the General Statutes."

CASE NOTES

Cited in State v. Tanner, 25 N.C. App. 251, 212 S.E.2d 695 (1975).


§ 160A-190. Pellet guns.

A city may by ordinance regulate, restrict, or prohibit the sale, possession or use within the city of pellet guns or any other mechanism or device designed or used to project a missile by compressed air or mechanical action with less than deadly force.

History

(1971, c. 698, s. 1.)

CASE NOTES

Cited in King v. Town of Chapel Hill, 367 N.C. 400, 758 S.E.2d 364 (2014).


§ 160A-191. Limitations on enactment of Sunday-closing ordinances.

No ordinance regulating or prohibiting business activity on Sundays shall be enacted unless the council shall hold a public hearing on the proposed ordinance. Notice of the hearing shall be published once each week for four successive weeks before the date of the hearing. The notice shall fix the date, hour and place of the public hearing, and shall contain a statement of the council's intent to consider a Sunday-closing ordinance, the purpose for such an ordinance, and one or more reasons for its enactment. No ordinance shall be held invalid for failure to observe the procedural requirements for enactment imposed by this section unless the issue is joined in an appropriate proceeding initiated within 90 days after the date of final enactment. This section shall not apply to ordinances enacted pursuant to G.S. 18B-1004(d).

History

(1967, c. 1156, s. 1; 1971, c. 698, s. 1; 1973, c. 426, s. 27; 1983, c. 768, s. 22.)

CASE NOTES

Applied in State v. Underwood, 283 N.C. 154, 195 S.E.2d 489 (1973).


§ 160A-192: Repealed by Session Laws 1991, c. 698, s. 1.

§ 160A-193. Abatement of public health nuisances.

  1. A city shall have authority to summarily remove, abate, or remedy everything in the city limits, or within one mile thereof, that is dangerous or prejudicial to the public health or public safety. Pursuant to this section, the governing board of a city may order the removal of a swimming pool and its appurtenances upon a finding that the swimming pool or its appurtenances is dangerous or prejudicial to public health or safety. The expense of the action shall be paid by the person in default. If the expense is not paid, it is a lien on the land or premises where the nuisance occurred. A lien established pursuant to this subsection shall have the same priority and be collected as unpaid ad valorem taxes.
  2. The expense of the action is also a lien on any other real property owned by the person in default within the city limits or within one mile of the city limits, except for the person's primary residence. A lien established pursuant to this subsection is inferior to all prior liens and shall be collected as a money judgment. This subsection shall not apply if the person in default can show that the nuisance was created solely by the actions of another.
  3. The authority granted by this section does not authorize the application of a city ordinance banning or otherwise limiting outdoor burning to persons living within one mile of the city, unless the city provides those persons with either (i) trash and yard waste collection services or (ii) access to solid waste dropoff sites on the same basis as city residents.

History

(1917, c. 136, subch. 7, s. 4; C.S., s. 2800; 1971, c. 698, s. 1; 1979, 2nd Sess., c. 1247, s. 20; 2001-448, s. 1; 2002-116, s. 3; 2014-120, s. 24(h).)

Effect of Amendments. - Session Laws 2014-120, s. 24(h), effective September 18, 2014, added subsection (c).

Legal Periodicals. - For article, "Searching Everywhere for a Section 24(1)(A) Standard: City of Asheville, Town of Boone, and the Unclear Future of Local-State Relations in North Carolina," see 96 N.C.L. Rev. 1882 (2018).

CASE NOTES

Contract May Extend Limits of Protection. - By use of a contract between a county and a city, rather than the provisions of this section, a city can extend its protection against accumulated garbage and refuse for more than one mile from its territorial limits. Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E.2d 897 (1972).

Adult Business Ordinance Held Vague. - Because a county's adult business ordinance was ambiguous as to whether it applied to businesses outside a city's business limits or only to businesses outside the city's extraterritorial jurisdiction, it was interpreted as applying only to the latter. State v. Baggett, 133 N.C. App. 47, 514 S.E.2d 536 (1999).

City's Demolition of a House Without Giving Notice. - Trial court erred in granting summary judgment to the city on the homeowner's claim for violation of her due process rights because, although the homeowner's house was in severe disrepair, the city violated her due process rights by demolishing the home without giving her notice, as the condition of the house did not pose an imminent threat to the public, warranting its immediate demolition; accordingly, the appellate court reversed the judgment and remanded the case for an entry summary judgment in favor of the homeowner and a trial on the issue of damages. Monroe v. City of New Bern, 158 N.C. App. 275, 580 S.E.2d 372, cert. denied, 357 N.C. 461, 586 S.E.2d 93 (2003).

Cited in Stanley v. Department of Conservation & Dev., 284 N.C. 15, 199 S.E.2d 641 (1973); River Birch Assocs. v. City of Raleigh, 326 N.C. 100, 388 S.E.2d 538 (1990).


§ 160A-193.1. Stream-clearing programs.

  1. A city shall have the authority to remove natural and man-made obstructions in stream channels and in the floodway of streams that may impede the passage of water during rain events.
  2. The actions of a city to clear obstructions from a stream shall not create or increase the responsibility of the city for the clearing or maintenance of the stream, or for flooding of the stream. In addition, actions by a city to clear obstructions from a stream shall not create in the city any ownership in the stream, obligation to control the stream, or affect any otherwise existing private property right, responsibility, or entitlement regarding the stream. These provisions shall not relieve a city for negligence that might be found under otherwise applicable law.
  3. Nothing in this section shall be construed to affect otherwise existing rights of the State to control or regulate streams or activities within streams. In implementing a stream-clearing program, the city shall comply with all requirements in State or federal statutes and rules.

History

(2005-441, s. 2.)

Editor's Note. - The preamble to Session Laws 2005-441, reads: "Whereas, the clearing of obstructions in streams, such as dead trees, fallen tree limbs, root balls, underbrush, and trash and debris furthers the health, safety, and welfare of the State's citizens by allowing such streams to function more efficiently to remove stormwater, thus reducing flooding; and

"Whereas, local governments are deterred from engaging in stream-clearing activities by the possibility that they will become legally responsible for regular stream clearing, or the possibility that they will become legally responsible for the impact on private properties of natural events such as flooding, which have never been the legal responsibility of local governments; and

"Whereas, many private landowners do not have the resources to clear obstructions from the streams that are located on their property, and it is in the public interest to facilitate the establishment of stream-clearing programs by local governments; Now, therefore,"

§ 160A-194. Regulating and licensing businesses, trades, etc.

  1. A city may by ordinance, subject to the general law of the State, regulate and license occupations, businesses, trades, professions, and forms of amusement or entertainment and prohibit those that may be inimical to the public health, welfare, safety, order, or convenience. In licensing trades, occupations, and professions, the city may, consistent with the general law of the State, require applicants for licenses to be examined and charge a reasonable fee therefor.
  2. Nothing in this section shall authorize a city to examine or license a person holding a license issued by an occupational licensing board of this State as to the profession or trade that he has been licensed to practice or pursue by the State.
  3. Nothing in this section shall authorize a city to regulate and license a TNC service regulated under Article 10A of Chapter 20 of the General Statutes.

History

(1971, c. 698, s. 1; 2013-413, s. 12.1(a); 2014-3, s. 12.3(c); 2014-115, s. 17; 2015-237, s. 5.)

Effect of Amendments. - Session Laws 2013-413, s. 12.1(a), designated the existing provisions as subsections (a) and (b); and added subsection (c). For effective date, see Editor's note.

Session Laws 2014-3, s. 12.3(c), deleted the former last sentence in subsection (a), which read: "Nothing in this section shall impair the city's power to levy privilege license taxes on occupations, businesses, trades, professions, and other activities pursuant to G.S. 160A-211." For effective date and applicability, see Editor's note.

Session Laws 2015-237, s. 5, effective October 1, 2015, in subsection (c) substituted "a TNC service regulated under Article 10A of Chapter 20 of the General Statutes" for "digital dispatching services for prearranged transportation services for hire."

CASE NOTES

Cited in Smith v. Keator, 285 N.C. 530, 206 S.E.2d 203 (1974); Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 162 N.C. App. 603, 592 S.E.2d 205, cert. denied, 358 N.C. 543, 599 S.E.2d 43 (2004); King v. Town of Chapel Hill, 367 N.C. 400, 758 S.E.2d 364 (2014).


§ 160A-195: Repealed by Session Laws 1998-128, s. 11, effective September 4, 1998.

§ 160A-196. Sewage tie-ons.

Cities that (in whole or in part) are adjacent to, adjoining, intersected by or bounded by the Atlantic Ocean and Roanoke, Albemarle, Currituck, or Pamlico Sound may by ordinance regulate the tie-ons to sewage systems within their corporate limits.

History

(1985, c. 525, s. 1; 1987, c. 303.)

§ 160A-197: Repealed by Session Laws 1995, c. 501, s. 4.

§ 160A-198. Curfews.

A city may by an appropriate ordinance impose a curfew on persons of any age less than 18.

History

(1997-189, s. 1.)

Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 417 (1997).

§ 160A-199: Repealed by Session Laws 2019-111, s. 2.6(e), as amended by Session Laws 2020-3, s. 4.33(a), and Session Laws 2020-25, s. 51(a), (b), (d) effective June 19, 2020.

History

(2004-152, s. 2; repealed by 2019-111, s. 2.6(e), as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020.)

Editor's Note. - Former G.S. 160A-199 pertained to the regulation of outdoor advertising.

Session Laws 2019-111, s. 2.8, is a severability clause.

Session Laws 2019-111, s. 3.2 provided for the delayed repeal of this section, effective January 1, 2021, and applicable to local government development regulation decisions made on or after that date, and further provided that "Part II of this act clarifies and restates the intent of existing law and applies to ordinances adopted before, on, and after the effective date." Session Laws 2020-3, s. 4.33(a), extended the delayed repeal of this section, making it effective August 1, 2021, and applicable to local government development regulation decisions made on or after that date. Session Laws 2020-25, s. 51(a), (d), repealed Session Laws 2019-111, s. 3.2, and Session Laws 2020-3, s. 4.33, effective June 19, 2020.

Session Laws 2020-3, s. 5, is a severability clause.

Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:

"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or

"(2) July 1, 2021."

§ 160A-200: Repealed by Session Laws 2015-246, s. 1(a), effective September 23, 2015.

History

(1999-58, s. 2; 2000-33, s. 1; 2000-38, s. 1; 2001-107, s. 1; 2003-77, s. 1; 2003-80, s. 1; 2005-81, s. 1; 2005-202, s. 1; 2007-31, s. 1; 2007-258, s. 1; 2008-6, s. 1; 2008-25, s. 1; 2009-3, s. 1; 2009-19, s. 1; 2009-570, s. 46; repealed by 2015-246, s. 1(a), effective September 23, 2015.)

Editor's Note. - Former G.S. 160A-200 pertained to an annual notice to chronic violators of overgrown vegetation ordinances. For annual notice to chronic violators of public nuisance or overgrown vegetation ordinance, see G.S. 160A-200.1.

The section was codified at the direction of the Revisor of Statutes.

Session Laws 2015-246, s. 20, is a severability clause.

§ 160A-200.1. Annual notice to chronic violators of public nuisance or overgrown vegetation ordinance.

  1. A city may notify a chronic violator of the city's public nuisance ordinance that, if the violator's property is found to be in violation of the ordinance, the city shall, without further notice in the calendar year in which notice is given, take action to remedy the violation, and the expense of the action shall become a lien upon the property and shall be collected as unpaid taxes.
  2. The notice shall be sent by registered or certified mail. When service is attempted by registered or certified mail, a copy of the notice may also be sent by regular mail. Service shall be deemed sufficient if the registered or certified mail is unclaimed or refused, but the regular mail is not returned by the post office within 10 days after the mailing. If service by regular mail is used, a copy of the notice shall be posted in a conspicuous place on the premises affected.
  3. A city may also give notice to a chronic violator of the city's overgrown vegetation ordinance in accordance with this section.
  4. For purposes of this section, a chronic violator is a person who owns property whereupon, in the previous calendar year, the city gave notice of violation at least three times under any provision of the public nuisance ordinance.

History

(2009-287, s. 1; 2013-151, s. 1; 2015-246, s. 1(b).)

Editor's Note. - Session Laws 2009-287, s. 4, made this section effective July 10, 2009. Section 4 further provides: "A municipality or county may adopt an ordinance under G.S. 160A-200.1 or G.S. 153A-140.2 when this act becomes law, but the ordinances may not become effective prior to October 1, 2009. The repeal in this act of any local act does not affect the rights or liabilities of a municipality or county that arose during the time the act was in effect, or under an ordinance adopted under such an act. If any municipality or county adopted an ordinance under any act repealed by this act, and the ordinance would be permitted under G.S. 160A-200.1 or G.S. 153A-140.2, as enacted by this act, that ordinance shall remain in effect until amended or repealed by that municipality or county."

Session Laws 2015-246, s. 20, is a severability clause.

Effect of Amendments. - Session Laws 2013-151, s. 1, effective June 19, 2013, inserted "registered or" in the second sentence, and added the third, fourth and fifth sentences.

Session Laws 2015-246, s. 1(b), effective September 23, 2015, inserted "or overgrown vegetation" in the section heading; added the subsection (a), (b), and (d) designations; inserted subsection (c); and added "For purposes of this section" in present subsection (d).

§ 160A-201: Repealed by Session Laws 2019-111, s. 2.6(g), as amended by Session Laws 2020-3, s. 4.33(a), and Session Laws 2020-25, s. 51(a), (b), (d), effective June 19, 2020.

History

(2007-279, s. 1; 2009-553, s. 1; repealed by 2019-111, s. 2.6(g), as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020.)

Local Modification. - Town of Carrboro: 1987, c. 476, as added by 2009-427, s. 1.

Editor's Note. - Former G.S. 160A-201 pertained to limitations on regulating solar collectors.

Session Laws 2019-111, s. 2.8, is a severability clause.

Session Laws 2019-111, s. 3.2 provided for the delayed repeal of this section, effective January 1, 2021, and applicable to local government development regulation decisions made on or after that date, and further provided that "Part II of this act clarifies and restates the intent of existing law and applies to ordinances adopted before, on, and after the effective date." Session Laws 2020-3, s. 4.33(a), extended the delayed repeal of this section, making it effective August 1, 2021, and applicable to local government development regulation decisions made on or after that date. Session Laws 2020-25, s. 51(a), (d), repealed Session Laws 2019-111, s. 3.2, and Session Laws 2020-3, s. 4.33, effective June 19, 2020.

Session Laws 2020-3, s. 5, is a severability clause.

Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:

"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or

"July 1, 2021."

Effect of Amendments. - Session Laws 2009-553, s. 1, effective December 1, 2009, substituted "residential property" for "detached single-family residence" twice in the first sentence of subsection (a) and at the end of subsection (b); and added the last sentence in subsection (a).

§ 160A-202. Limitations on regulating cisterns and rain barrels.

No city ordinance may prohibit or have the effect of prohibiting the installation and maintenance of cisterns and rain barrel collection systems used to collect water for irrigation purposes. A city may regulate the installation and maintenance of those cisterns and rain barrel collection systems for the purpose of protecting the public health and safety and for the purpose of preventing them from becoming a public nuisance.

History

(2011-394, s. 12(e).)

§ 160A-203. Limitations on regulating soft drink sizes.

No city ordinance may prohibit the sale of soft drinks above a particular size. This section does not prohibit any ordinance regulating the sanitation or other operational aspect of a device for the dispensing of soft drinks. For purposes of this section, "soft drink" shall have the meaning set forth in G.S. 105-164.3.

History

(2013-309, s. 2.)

Cross References. - As to the Commonsense Consumption Act, see G.S. 99E-40 et seq.


§ 160A-203.1. Limitations on standards of care for farm animals.

Notwithstanding any other provision of law, no city ordinance may regulate standards of care for farm animals. For purposes of this section, "standards of care for farm animals" includes the following: the construction, repair, or improvement of farm animal shelter or housing; restrictions on the types of feed or medicines that may be administered to farm animals; and exercise and social interaction requirements. For purposes of this section, the term "farm animals" includes the following domesticated animals: cattle, oxen, bison, sheep, swine, goats, horses, ponies, mules, donkeys, hinnies, llamas, alpacas, lagomorphs, ratites, and poultry flocks of greater than 20 birds.

History

(2015-192, s. 2.)

Editor's Note. - Session Laws 2015-192, s. 3, made this section effective August 5, 2015.

§ 160A-203.2. Limitations on regulation of catering by bona fide farms.

Notwithstanding any other provision of law, no city may require a business located on a property used for bona fide farm purposes, as provided in G.S. 160D-903(a), that provides on- and off-site catering services, to obtain a permit to provide catering services within the city. This section shall not be construed to exempt the business from any health and safety rules adopted by a local health department, the Department of Health and Human Services, or the Commission for Public Health.

History

(2020-18, s. 5(d); 2020-74, s. 21(b).)

Editor's Note. - Session Laws 2020-18, s. 5(e), made this section effective June 12, 2020.

Session Laws 2020-18, s. 16(a), is a severability clause.

Effect of Amendments. - Session Laws 2020-74, s. 21(b), effective July 1, 2020, substituted "G.S. 160D-903(a)" for "G.S. 153A-340(b)" in the first sentence.


§ 160A-204. Transportation impact mitigation ordinances prohibited.

No city may enact or enforce an ordinance, rule, or regulation that requires an employer to assume financial, legal, or other responsibility for the mitigation of the impact of his or her employees' commute or transportation to or from the employer's workplace, which may result in the employer being subject to a fine, fee, or other monetary, legal, or negative consequences.

History

(2013-413, s. 10.1(a); 2014-115, s. 17.)

§ 160A-205. Cities enforce ordinances within public trust areas.

  1. Notwithstanding the provisions of G.S. 113-131 or any other provision of law, a city may, by ordinance, define, prohibit, regulate, or abate acts, omissions, or conditions upon the State's ocean beaches and prevent or abate any unreasonable restriction of the public's rights to use the State's ocean beaches. In addition, a city may, in the interest of promoting the health, safety, and welfare of the public, regulate, restrict, or prohibit the placement, maintenance, location, or use of structures that are uninhabitable and without water and sewer services for more than 120 days, as determined by the city with notice provided to the owner of record of the determination by certified mail at the time of the determination, equipment, personal property, or debris upon the State's ocean beaches. A city may enforce any ordinance adopted pursuant to this section or any other provision of law upon the State's ocean beaches located within or adjacent to the city's jurisdictional boundaries to the same extent that a city may enforce ordinances within the city's jurisdictional boundaries. A city may enforce an ordinance adopted pursuant to this section by any remedy provided for in G.S. 160A-175. For purposes of this section, the term "ocean beaches" has the same meaning as in G.S. 77-20(e).
  2. Nothing in this section shall be construed to (i) limit the authority of the State or any State agency to regulate the State's ocean beaches as authorized by G.S. 113-131, or common law as interpreted and applied by the courts of this State; (ii) limit any other authority granted to cities by the State to regulate the State's ocean beaches; (iii) deny the existence of the authority recognized in this section prior to the date this section becomes effective; (iv) impair the right of the people of this State to the customary free use and enjoyment of the State's ocean beaches, which rights remain reserved to the people of this State as provided in G.S. 77-20(d); (v) change or modify the riparian, littoral, or other ownership rights of owners of property bounded by the Atlantic Ocean; or (vi) apply to the removal of permanent residential or commercial structures and appurtenances thereto from the State's ocean beaches, except as provided in subsection (a) of this section.

History

(2013-384, s. 4(a); 2015-246, s. 1.5.)

Editor's Note. - Session Laws 2013-384, s. 5, made this section effective August 23, 2013.

Session Laws 2013-384, s. 4(a), enacted this section as G.S. 160A-203; it was recodified as G.S. 160A-205 at the direction of the Revisor of Statutes.

Session Laws 2015-246, s. 20, is a severability clause.

Effect of Amendments. - Session Laws 2015-246, s. 1.5, effective September 23, 2015, inserted "structures that are uninhabitable and without water and sewer services for more than 120 days, as determined by the city with notice provided to the owner of record of the determination by certified mail at the time of the determination" in the second sentence of subsection (a); and added "except as provided in subsection (a) of this section" at the end of subsection (b).

CASE NOTES

Police Power. - Passage of ordinances constituted legitimate uses of the town's police power because the regulation of the use of certain beach equipment, on public trust areas of the ocean beaches within the town's jurisdiction, to facilitate the free movement of emergency and service vehicles, was within the scope of the police power. Nies v. Town of Emerald Isle, 244 N.C. App. 81, 780 S.E.2d 187 (2015), appeal dismissed, 793 S.E.2d 699, 2016 N.C. LEXIS 1014 (2016), cert. denied, mot. granted, 138 S. Ct. 75, 2017 U.S. LEXIS 4978, 199 L. Ed. 2d 184 (U.S. 2017).

Public Trust Rights. - It was error to grant a town judgment notwithstanding a verdict in a condemnation case on a theory that the public trust doctrine made the taking noncompensable because (1) the theory was not raised on directed verdict, (2) the sua sponte order was entered months after final judgment, and (3) the town was estopped from asserting the town possessed rights taken as the town's complaint said the town did not, the town did not raise the issue at an "all other issues" hearing, at which the town disavowed the public trust doctrine, the town did not immediately appeal a vital ruling that the town condemned the property, and landowners introduced a scintilla of supporting evidence. Town of Nags Head v. Richardson, 260 N.C. App. 325, 817 S.E.2d 874 (2018), aff'd, 372 N.C. 349, 828 S.E.2d 154, 2019 N.C. LEXIS 523 (2019).

Demolition of Building Properly Ordered. - Superior court did not err in upholding the decision of a town board of commissioners, which affirmed the demolition of an owner's motel. because the board acted within its statutory authority and after a de novo hearing; the respective orders of the town building inspector and the board made it clear that the structure was condemned because it was determined to be unsafe, and those orders were proper. Six at 109, LCC v. Town of Holden Beach, 238 N.C. App. 469, 767 S.E.2d 400 (2014).


§ 160A-205.1. Requiring compliance with voluntary State regulations and rules prohibited.

  1. If a State department or agency declares a regulation or rule to be voluntary or the General Assembly delays the effective date of a regulation or rule proposed or adopted by the Environmental Management Commission, or any other board or commission, a city shall not require or enforce compliance with the applicable regulation or rule, including any regulation or rule previously or hereafter incorporated as a condition or contractual obligation imposed by, agreed upon, or accepted by the city in any zoning, land use, subdivision, or other developmental approval, including, without limitation, a development permit issuance, development agreement, site-specific development plan, or phased development plan.
  2. This section shall apply to the following regulations and rules:
    1. Those currently in effect.
    2. Those repealed or otherwise expired.
    3. Those temporarily or permanently held in abeyance.
    4. Those adopted but not yet effective.
  3. This section shall not apply to any water usage restrictions during either extreme or exceptional drought conditions as determined by the Drought Management Advisory Council pursuant to G.S. 143-355.1.

History

(2015-246, s. 2(b).)

Editor's Note. - Session Laws 2015-246, s. 21, made this section effective September 23, 2015.

Session Laws 2015-246, s. 20, is a severability clause.

Session Laws 2016-94, s. 14.13(f), provides: "Impervious surface added in a city or county within the Jordan Lake watershed after July 26, 2013, and prior to December 31, 2020, shall, notwithstanding any other provision of law or associated regulations adopted by the Environmental Management Commission, not be counted as built-upon area for purposes of a city's or county's calculation of nutrient loading targets under a Development Stormwater Rule. Pursuant to G.S. 153A-145.6 and G.S. 160A-205.1, cities and counties shall not enforce Development Stormwater Rules through any ordinance, code, standard, committed element, condition, or contractual obligation imposed by, agreed upon, or accepted by a county or city. For purposes of this subdivision, 'Development Stormwater Rule' shall mean 15A NCAC 2B.0265 (Stormwater Management for New Development) and 15A NCAC 2B.0266 (Stormwater Management for Existing Development), or equivalent or more stringent ordinance, code, standard, or committed element related to nutrient-loading targets in the Jordan Lake watershed."

Session Laws 2016-94, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2016.'"

Session Laws 2016-94, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2016-2017 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2016-2017 fiscal year."

Session Laws 2016-94, s. 39.7, is a severability clause.

§ 160A-205.2. Adoption of sanctuary ordinances prohibited.

  1. No city may have in effect any policy, ordinance, or procedure that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law.
  2. No city shall do any of the following related to information regarding the citizenship or immigration status, lawful or unlawful, of any individual:
    1. Prohibit law enforcement officials or agencies from gathering such information.
    2. Direct law enforcement officials or agencies not to gather such information.
    3. Prohibit the communication of such information to federal law enforcement agencies.

History

(2015-294, s. 15(b).)

Editor's Note. - Session Laws 2015-294, s. 15(b), enacted this section as G.S. 160A-499.4. As the intent of the General Assembly was to codify this section in Article 8 of Chapter 160A, it has been redesignated as this section at the direction of the Revisor of Statutes.

Session Laws 2015-294, s. 17, made this section effective October 29, 2015.

§ 160A-205.3. Hours of certain alcohol sales.

In accordance with G.S. 18B-1004(c), a city may adopt an ordinance allowing for the sale of malt beverages, unfortified wine, fortified wine, and mixed beverages beginning at 10:00 A.M. on Sunday pursuant to the licensed premises' permit issued under G.S. 18B-1001.

History

(2017-87, s. 4(c).)

Editor's Note. - Session Laws 2017-87, s. 21, made this section effective June 30, 2017.

Session Laws 2017-87, s. 19(a), (b), provides: "(a) Except as otherwise provided, the Alcoholic Beverage Control (ABC) Commission shall adopt temporary rules to implement the provisions of this act. Temporary rules adopted in accordance with this section shall remain in effect until permanent rules that replace the temporary rules become effective.

"(b) Any rule or policy adopted by the ABC Commission that does not comply with the provisions of this act shall be null, void, and without effect."

ARTICLE 9. Taxation.

Sec.

§ 160A-206. General power to impose taxes.

  1. Authority. - A city shall have power to impose taxes only as specifically authorized by act of the General Assembly. Except when the statute authorizing a tax provides for penalties and interest, the power to impose a tax shall include the power to impose reasonable penalties for failure to declare tax liability, if required, or to impose penalties or interest for failure to pay taxes lawfully due within the time prescribed by law or ordinance. In determining the liability of any taxpayer for a tax, a city may not employ an agent who is compensated in whole or in part by the city for services rendered on a contingent basis or any other basis related to the amount of tax, interest, or penalty assessed against or collected from the taxpayer. The power to impose a tax shall also include the power to provide for its administration in a manner not inconsistent with the statute authorizing the tax.
  2. Prohibition. - A city may not impose a license, franchise, or privilege tax on a person engaged in any of the businesses listed in this subsection. These businesses are subject to sales tax at the combined general rate for which the city receives a share of the tax revenue or they are subject to the local sales tax:
    1. Supplying piped natural gas.
    2. Providing telecommunications service taxed under G.S. 105-164.4(a)(4c).
    3. Providing video programming taxed under G.S. 105-164.4(a)(6).
    4. Providing electricity.

History

(1971, c. 698, s. 1; 2012-152, s. 5; 2012-194, s. 61.5(b); 2015-6, s. 2.18(a); 2015-109, s. 1.)

Editor's Note. - Session Laws 2012-152, s. 6, as amended by Session Laws 2012-194, s. 61.5(b), and as amended by Session Laws 2015-109, s. 1, provides in part: "Sections 2, 4, and 5 of this act become effective July 1, 2013. After July 1, 2013, cities and counties shall not renew any contingency fee-based contracts for these services. After July 1, 2013, cities and counties shall not assign further audits on a contingency fee basis to an auditing firm under a contract that meets all the following conditions: (i) the contract would have been prohibited under this act had the contract been entered into after July 1, 2013, and (ii) the contract allows the assignment of audits on a discretionary basis."

Session Laws 2012-189, ss. 1 and 2, provide: "SECTION 1. The Revenue Laws Study Committee may study whether municipalities should be granted the authority to levy a local option sales tax for the purpose of providing dedicated funding for beach nourishment and other natural resources preservation and report its findings, together with any recommended legislation, to the 2013 Regular Session of the General Assembly upon its convening.

"SECTION 2. The Revenue Laws Study Committee may study the taxation and valuation of leasehold interests in exempt real property and report its findings, together with any recommended legislation, to the 2013 Regular Session of the General Assembly upon its convening."

Session Laws 2016-103, s. 9(c), provides: "A city may not impose a fee or charge on businesses listed in G.S. 160A-206(b) for activities conducted in the city's right-of-way, except fees or charges not exceeding those in effect as of June 1, 2016, or payments under agreements subject to G.S. 62-350."

Session Laws 2016-103, s. 9(d), provides: "Subsection (c) of this section is effective when it becomes law [July 22, 2016] and is repealed effective July 1, 2017."

Effect of Amendments. - Session Laws 2012-152, s. 5, added the third sentence. For effective date and applicability, see editor's note.

Session Laws 2015-6, s. 2.18(a), effective April 9, 2015, designated the existing language as subsection (a); added the subsection (a) heading; and added subsection (b).

Legal Periodicals. - For article, "Searching Everywhere for a Section 24(1)(A) Standard: City of Asheville, Town of Boone, and the Unclear Future of Local-State Relations in North Carolina," see 96 N.C.L. Rev. 1882 (2018).

CASE NOTES

Editor's Note. - Some of the cases cited below were decided under former statutory provisions.

City having power to levy a heavy tax on "gift enterprises" must restrict this tax to enterprises that are of a lottery nature. A dealer in trading stamps cannot be taxed, for the tax cannot be applied to a business merely because of its peculiarity. City of Winston v. Beeson, 135 N.C. 271, 47 S.E. 457 (1904).

Recovery of Excess License Tax. - In order to recover money paid a municipality as a license tax in excess of the amount the town was lawfully authorized to collect, and in the absence of statutory regulations, or under the common law, it is necessary that the one so paying should have done so under protest at the time or under circumstances of duress or such as would endanger his person or property, and where the payment has been voluntarily made, the action may not be successfully maintained. Blackwell v. City of Gastonia, 181 N.C. 378, 107 S.E. 218 (1921).

Power to Appoint Special Tax Collector. - Whenever the authorities of a town are commanded to levy and collect taxes, they may appoint a special tax collector to collect the same. But this power to appoint such a collector is additional, and does not abridge their right to require the collection to be made by the regular officer appointed for that purpose. Webb v. Town of Beaufort, 88 N.C. 496 (1883).

Authority to Require Compliance with Zoning Requirements. - City had the authority to require confirmation of a sexually oriented business's zoning compliance in its business privilege license application and the authority to reject the business's privilege license application where zoning compliance was found wanting. Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 162 N.C. App. 603, 592 S.E.2d 205, cert. denied, 358 N.C. 543, 599 S.E.2d 43 (2004).

Applied in Cooke v. Futrell, 37 N.C. App. 441, 246 S.E.2d 65 (1978).

Cited in Kennedy v. Polumbo, 209 N.C. App. 394, 704 S.E.2d 916 (2011).

Opinions of Attorney General

Town Located Within Two Counties. - Session Laws 2001-439 and 2002-94 pertaining to the levy of an occupancy tax by cities in Avery County did not specifically authorize the levying of the tax throughout the entire town of Seven Devils, which is located within both Avery and Watagua counties. See opinion of Attorney General to Rebecca Eggers-Gryder, Eggers, Eggers, Eggers, and Eggers, 2003 N.C.A.G. 1 (1/23/03).

§ 160A-207. Remedies for collecting taxes.

In addition to any other remedies provided by law, the remedies of levy, garnishment, and attachment shall be available for collecting any city tax under the rules and procedures prescribed by the Machinery Act for the enforcement of tax liability against personal property, except that:

  1. The remedies shall become available on the due date of the tax and not before that time;
  2. Rules dependent on the existence of a lien against real property for the same tax shall not apply; and
  3. The lien acquired by levy, garnishment, or attachment shall be inferior to any prior or simultaneous lien for property taxes acquired under the Machinery Act.

History

(1971, c. 698, s. 1; 1973, c. 426, s. 29.)

§ 160A-208. Continuing taxes.

Except for taxes levied on property under the Machinery Act, a city may impose an authorized tax by a permanent ordinance that shall stand from year to year until amended or repealed, and it shall not be necessary to reimpose the tax in each annual budget ordinance.

History

(1971, c. 698, s. 1; 1973, c. 426, s. 30.)

§ 160A-208.1. Disclosure of certain information prohibited.

  1. Disclosure Prohibited. - Notwithstanding Chapter 132 of the General Statutes or any other law regarding access to public records, local tax records that contain information about a taxpayer's income or receipts are not public records. A current or former officer, employee, or agent of a city who in the course of service to or employment by the city has access to information about the amount of a taxpayer's income or receipts may not disclose the information to any other person unless the disclosure is made for one of the following purposes:
    1. To comply with a court order or a law.
    2. Review by the Attorney General or a representative of the Attorney General.
    3. To sort, process, or deliver tax information on behalf of the city, as necessary to administer a tax.
    4. To include on a property tax receipt the amount of property taxes due and the amount of property taxes deferred on a residence classified under G.S. 105-277.1B, the property tax homestead circuit breaker.
    5. To disclose to the authorized finance officer of the county in which the municipality is located tax information in the possession of the municipality, as necessary to administer a tax.
  2. Punishment. - A person who violates this section is guilty of a Class 1 misdemeanor. If the person committing the violation is an officer or employee, that person shall be dismissed from public office or public employment and may not hold any public office or public employment in this State for five years after the violation.

History

(1993, c. 485, s. 34; 1994, Ex. Sess., c. 14, s. 67; 2008-35, s. 1.5; 2016-92, s. 3.1(b).)

Effect of Amendments. - Session Laws 2016-92, s. 3.1(b), effective July 11, 2016, added subdivision (a)(5).

§ 160A-209. Property taxes.

  1. Pursuant to Article V, Sec. 2(5) of the Constitution of North Carolina, the General Assembly confers upon each city in this State the power to levy, within the limitations set out in this section, taxes on property having a situs within the city under the rules and according to the procedures prescribed in the Machinery Act (Chapter 105, Subchapter II).
  2. Each city may levy property taxes without restriction as to rate or amount for the following purposes:
    1. Debt Service. - To pay the principal of and interest on all general obligation bonds and notes of the city.
    2. Deficits. - To supply an unforeseen deficiency in the revenue (other than revenues of any of the enterprises listed in G.S. 160A-311), when revenues actually collected or received fall below revenue estimates made in good faith in accordance with the Local Government Budget and Fiscal Control Act.
    3. Civil Disorders. - To meet the cost of additional law-enforcement personnel and equipment that may be required to suppress riots or other civil disorders involving an extraordinary breach of law and order within the jurisdiction of the city.
  3. Each city may levy property taxes for one or more of the following purposes subject to the rate limitation set out in subsection (d):
    1. Administration. - To provide for the general administration of the city through the city council, the office of the city manager, the office of the city budget officer, the office of the city finance officer, the office of the city tax collector, the city purchasing agent, the city attorney, and for all other general administrative costs not allocated to a particular board, commission, office, agency, or activity.
    2. Air Pollution. - To maintain and administer air pollution control programs.
    3. Airports. - To establish and maintain airports and related aeronautical facilities.
    4. Ambulance Service. - To provide ambulance services, rescue squads, and other emergency medical services.
    5. Animal Protection and Control. - To provide animal protection and control programs.
    6. Arts Programs and Museums. - To provide for arts programs and museums as authorized in G.S. 160A-488.
    7. Auditoriums, Coliseums, and Convention Centers. - To provide public auditoriums, coliseums, and convention centers.
    8. Beach Erosion and Natural Disasters. - To provide for shoreline protection, beach erosion control and flood and hurricane protection.
    9. Cemeteries. - To provide for cemeteries.
    10. Civil Defense. - To provide for civil defense programs.
    11. Community Development. - To provide for community development as authorized by G.S. 160A-456 and 160A-457.
    12. Debts and Judgments. - To pay and discharge any valid debt of the city or any judgment lodged against it, other than debts or judgments evidenced by or based on bonds or notes.
    13. Defense of Employees and Officers. - To provide for the defense of, and payment of civil judgments against, employees and officers or former employees and officers, as authorized by this Chapter.
    14. Economic Development. - To provide for economic development as authorized by G.S. 158-7.1.
    15. Drainage. - To provide for drainage projects or programs in accordance with Chapter 156 of the General Statutes or in accordance with this Chapter.
    16. Elections. - To provide for all city elections and referendums.
    17. Electric Power. - To provide electric power generation, transmission, and distribution services.
    18. Energy Financing. - To provide financing for renewable energy and energy efficiency in accordance with a program established under G.S. 160A-459.1.
    19. Fire Protection. - To provide fire protection services and fire prevention programs.
    20. Gas. - To provide natural gas transmission and distribution services.
    21. Historic Preservation. - To undertake historic preservation programs and projects.
    22. Housing. - To undertake housing projects as defined in G.S. 157-3, and urban homesteading programs under G.S. 160A-457.2.
    23. Human Relations. - To undertake human relations programs.
    24. Hospitals. - To establish, support and maintain public hospitals and clinics, and other related health programs and facilities, and to aid any private, nonprofit hospital, clinic, related facility, or other health program or facility.
    25. Industrial Development. - To provide for industrial development as authorized by G.S. 158-7.1.
    26. Jails. - To provide for the operation of a jail and other local confinement facilities.
    27. Joint Undertakings. - To cooperate with any other county, city, or political subdivision of the State in providing any of the functions, services, or activities listed in this subsection.
    28. Libraries. - To establish and maintain public libraries.
    29. Mosquito Control.
    30. Off-Street Parking. - To provide off-street lots and garages for the parking and storage of motor vehicles.
    31. Open Space. - To acquire open space land and easements in accordance with Article 19, Part 4, of this Chapter.
    32. Parks and Recreation. - To establish, support and maintain public parks and programs of supervised recreation.
    33. Planning. - To provide for a program of planning and regulation of development in accordance with Article 19 of this Chapter.
    34. Police. - To provide for law enforcement.
    35. Ports and Harbors. - To participate in programs with the North Carolina Ports Authority and to provide for harbor masters.
    36. Public Education. - To supplement funding for elementary and secondary public education.
    37. Public Transportation. - To provide public transportation by rail, motor vehicle, or another means of conveyance other than a ferry, including any facility or equipment needed to provide the public transportation.
    38. Railroad Corridor Preservation. - To acquire property for railroad corridor preservation.
    39. Senior Citizens Programs. - To undertake programs for the assistance and care of its senior citizens.
    40. Sewage. - To provide sewage collection and treatment services as defined in G.S. 160A-311(3).
    41. Solid Waste. - To provide solid waste collection and disposal services, and to acquire and operate landfills.
    42. Streets. - To provide for the public streets, sidewalks, and bridges of the city.
    43. Traffic Control and On-Street Parking. - To provide for the regulation of vehicular and pedestrian traffic within the city, and for the parking of motor vehicles on the public streets.
    44. Urban Redevelopment. - To provide for urban redevelopment.
    45. Water. - To provide water supply and distribution services.
    46. Water Resources. - To participate in federal water resources development projects.
    47. Watershed Improvement. - To undertake watershed improvement projects.
  4. Property taxes may be levied for one or more of the purposes listed in subsection (c) up to a combined rate of one dollar and fifty cents ($1.50) on the one hundred dollars' ($100.00) appraised value of property subject to taxation.
  5. With an approving vote of the people, any city may levy property taxes for any purpose for which the city is authorized by its charter or general law to appropriate money. Any property tax levy approved by a vote of the people shall not be counted for purposes of the rate limitation imposed in subsection (d).
    1. Shall the City/Town of ____________ be authorized to levy annually a property tax at a rate not in excess of ________ cents on the one hundred dollars ($100.00) value of property subject to taxation for the purpose of ____________?      (2) Shall the City/Town of ____________ be authorized to levy annually a property tax at a rate not in excess of that which will produce $ ____________ for the purpose of ____________?      (3) Shall the City/Town of ____________ be authorized to levy annually a property tax without restriction as to rate or amount for the purpose of ____________?     If a majority of those participating in the referendum approve the proposition, the city council may proceed to levy annually a property tax within the limitations (if any) described in the proposition.     The board of elections shall canvass the referendum and certify the results to the city council. The council shall then certify and declare the result of the referendum and shall publish a statement of the result once, with the following statement appended: "Any action or proceeding challenging the regularity or validity of this tax referendum must be begun within 30 days after (date of publication)." The statement of results shall be filed in the clerk's office and inserted in the minutes of the council.     Any action or proceeding in any court challenging the regularity or validity of a tax referendum must be begun within 30 days after the publication of the results of the referendum. After the expiration of this period of limitation, no right of action or defense based upon the invalidity of or any irregularity in the referendum shall be asserted, nor shall the validity of the referendum be open to question in any court upon any ground whatever, except in an action or proceeding begun within the period of limitation prescribed herein.     Except for tax referendums on functions not included in subsection (c) of this section, any referendum held before July 1, 1973, on the levy of property taxes is not valid for the purposes of this subsection. Cities in which such referendums have been held may support programs formerly supported by voted property taxes within the general rate limitations set out in subsection (d) at any appropriate level and are not subject to the former voted rate limitation.     (f)  With an approving vote of the people, any city may increase the property tax rate limitation imposed in subsection (c) and may call a referendum for that purpose. The referendum may be held at the same time as any other city referendum or election, but may not be otherwise held (i) on the day of any federal, State, district, or county election, or (ii) within the period of time beginning 30 days before and ending 30 days after the day of any other city referendum or city election. The election shall be conducted by the same board of elections that conducts regular city elections.     The proposition submitted to the voters shall be substantially in the following form: "Shall the property tax rate limitation applicable to the City/Town of ____________ be increased from ____________ on the one hundred dollars ($100.00) value of property subject to taxation to ________ on the one hundred dollars ($100.00) value of property subject to taxation?"     If a majority of those participating in the referendum approve the proposition, the rate limitation imposed in subsection (c) shall be increased for the city.     (g)  With respect to any of the categories listed in subsections (b) and (c) of this section, the city may provide the necessary personnel, land, buildings, equipment, supplies, and financial support from property tax revenues for the program, function, or service.     (h)  This section does not authorize any city to undertake any program, function, joint undertaking, or service not otherwise authorized by law. It is intended only to authorize the levy of property taxes within the limitations set out herein to finance programs, functions, or services authorized by other portions of the General Statutes or by city charters.

The city council may call a referendum on approval of a property tax levy. The referendum may be held at the same time as any other city referendum or city election, but may not be otherwise held (i) on the day of any federal, State, district, or county election already validly called or scheduled by law at the time the tax referendum is called, or (ii) within the period of time beginning 30 days before and ending 10 days after the day of any other city referendum or city election already validly called or scheduled by law at the time the tax referendum is called. The referendum shall be conducted by the same board of elections that conducts regular city elections. A notice of referendum shall be published in accordance with G.S. 163-297. The notice shall state the date of the referendum, the purpose for which it is being held, and a statement as to the last day for registration for the referendum under the election laws then in effect.

The proposition submitted to the voters shall be substantially in one of the following forms:

History

(1917, c. 138, s. 37; 1919, c. 178, s. 3(37); C.S., s. 2963; 1921, c. 8, s. 1; Ex. Sess. 1921, c. 106, s. 1; 1947, c. 506; 1959, c. 1250, s. 3; 1971, c. 698, s. 1; 1973, c. 426, s. 31; c. 803, s. 2; 1975, c. 664, s. 7; 1977, c. 187, s. 2; c. 834, s. 2; 1979, c. 619, s. 5; 1979, 2nd Sess., c. 1247, s. 21; 1981, c. 66, s. 1; 1983, c. 511, ss. 3, 4; c. 828; 1985, c. 665, ss. 4, 7; 1987, c. 464, s. 6; 1989, c. 600, s. 8; 1989 (Reg. Sess., 1990), c. 1005, ss. 6, 7; 1991 (Reg. Sess., 1992), c. 896, s. 2; 2002-159, s. 50(b); 2002-172, s. 2.4(b); 2003-416, s. 2; 2010-167, s. 4(d); 2017-6, s. 3; 2018-5, s. 38.8(a); 2018-146, ss. 3.1(a), (b), 6.1.)

Local Modification. - Town of Carrboro: 1987, c. 476, s. 1; town of Oak Ridge: 1998-113; town of Pleasant Garden: 1997-344, s. 1; town of Varnamtown: 1987 (Reg. Sess., 1988), c. 1003, s. 1; town of Walkertown: 1983 (Reg. Sess., 1984), c. 936, as amended by 2019-61, s. 1; village of Clemmons: 1985, c. 437, s. 7.

Re-recodification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled `Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification, in consultation with the State Ethics Commission, the State Board of Elections, the Secretary of State, and the new Bipartisan State Board of Elections and Ethics Enforcement. Pursuant to this authority, the Revisor of Statutes substituted "163A-1592" for "163-297" in the second paragraph of subsection (e).

Session Laws 2018-146, ss. 3.1(a), (b) and 6.1 repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the change to the reference in subsection (e).

Editor's Note. - Former subdivision (c)(27a) was renumbered as present (c)(27b) to facilitate alphabetization.

Subdivision (c)(10b) as added by Session Laws 2010-167, s. 4(d), was renumbered as subdivision (c)(12a) at the direction of the Revisor of Statutes.

Session Laws 2013-360, s. 15.28(f), provides: "The Revisor of Statutes may conform names and titles changed by this section and may correct statutory references as required by this section throughout the General Statutes. In making the changes authorized by this section, the Revisor may also adjust subject and verb agreement and the placement of conjunctions." Pursuant to this authority, a reference to G.S. 158-12 has been removed from subdivision (c)(10b) at the direction of the Revisor of Statutes.

Session Laws 2013-360, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2013.'"

Session Laws 2013-360, s. 38.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium."

Session Laws 2013-360, s. 38.5, is a severability clause.

Session Laws 2018-5, s. 38.8(i), made subdivision (c)(26b) of this section, as added by Session Laws 2018-5, s. 38.8(a), effective July 1, 2018, and applicable to revenues derived from taxes levied on or after that date.

Session Laws 2018-5, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2018.'"

Session Laws 2018-5, s. 39.7, is a severability clause.

Effect of Amendments. - Session Laws 2010-167, s. 4(d), effective August 2, 2010, added subdivision (c)(10b) (now (12a)).

Session Laws 2018-5, s. 38.8(a), added subdivision (c)(26b). For effective date and applicability, see editor's note.

Legal Periodicals. - For survey of 1981 administrative law, see 60 N.C.L. Rev. 1165 (1982).

CASE NOTES

The word "property" includes moneys, credits, investments, and other choses in action. Redmond v. Commissioners of Tarboro, 106 N.C. 122, 10 S.E. 845 (1890), decided under former statutory provisions.

Cited in Homebuilders Ass'n v. City of Charlotte, 336 N.C. 37, 442 S.E.2d 45 (1994); Haugh v. County of Durham, 208 N.C. App. 304, 702 S.E.2d 814 (2010), review dismissed, 365 N.C. 328, 717 S.E.2d 397, 2011 N.C. LEXIS 683 (N.C. 2011).


§ 160A-210: Repealed by Session Laws 1979, 2nd Session, c. 1247, s. 22.

§ 160A-211: Repealed by Session Laws 2014-3, s. 12.3(a), effective July 1, 2015.

History

(R.C., c. 111, s. 13; 1862, c. 51; Code, s. 3800; Rev., s. 2924; C.S., s. 2677; 1949, c. 933; 1971, c. 698, s. 1; 1996, 2nd Ex. Sess., c. 14, s. 23; 1998-22, s. 12; 2001-430, s. 17; 2006-151, s. 12; 2013-316, s. 4.4(a); 2013-414, s. 58(b), (d); 2014-3, ss. 12.1(a), 12.2(a); repealed by Session Laws 2014-3, s. 12.3(a), effective July 1, 2015.)

Editor's Note. - Former G.S. 160A-211 pertained to privilege license taxes.

CASE NOTES

Editor's Note. - Many of the cases cited below were decided under former similar statutory provisions.

Constitutionality. - Public Laws 1929, c. 345, s. 162, imposing a license tax of $50.00 for each store operated under the same ownership or management where there was more than one store so operated, was held constitutional and valid. Great Atl. & Pac. Tea Co. v. Maxwell, 199 N.C. 433, 154 S.E. 838 (1930).

That an ordinance imposing a privilege license tax on cyber-gambling businesses taxed each computer terminal within each business did not mean it unlawfully classified property for taxation. The city was not taxing individual computer terminals for the sake of taxing computers, but was taxing businesses for the privilege of carrying out cyber-gambling through the use of computer terminals, and such a tax was authorized by G.S. 160A-211. IMT, Inc. v. City of Lumberton, 219 N.C. App. 36, 724 S.E.2d 588 (2012).

Taxpayers' claim that a city's privilege license tax on cyber-gambling establishments violated N.C. Const. Art. V, § 2(1) by imposing an unjust and inequitable taxation scheme failed because they provided no evidence that the tax would completely deprive them of all profit associated with their businesses. IMT, Inc. v. City of Lumberton, 219 N.C. App. 36, 724 S.E.2d 588 (2012).

City's privilege license tax on cyber-gambling establishments was not invalid because it exempted state-endorsed lotteries from taxation, as the state-endorsed lotteries provided net revenues to the state Education Lottery Fund and thus reasonably constituted a separate classification from unendorsed gambling. IMT, Inc. v. City of Lumberton, 219 N.C. App. 36, 724 S.E.2d 588 (2012).

City's privilege license tax on cyber-gambling establishments did not violate N.C. Const. art. V, § 2(2) because the tax uniformly applied to all persons engaged in the cyber-gambling business. IMT, Inc. v. City of Lumberton, 219 N.C. App. 36, 724 S.E.2d 588 (2012).

Purpose. - Former statute imposed a license tax for the purpose of raising revenue, and not an ad valorem tax. Nor did the statute seek to regulate chain stores under the police power, and the tax was in accord with the fiscal policy of the State of raising revenue for State purposes by the imposition of taxes on trades, professions, franchises and incomes, and leaving to the counties and municipalities for their support ad valorem taxes on real and personal property. Great Atl. & Pac. Tea Co. v. Maxwell, 199 N.C. 433, 154 S.E. 838 (1930).

Prior Law Invalid. - Prior law which imposed a license tax of $50.00 each on stores operated in this State where there were six or more such stores under the same management, but which imposed no such tax on other mercantile establishments doing the same business when there were less than six stores under one management, was held an arbitrary classification and unconstitutional. Great Atl. & Pac. Tea Co. v. Doughton, 196 N.C. 145, 144 S.E. 701 (1928).

Privilege Tax on Cyber-Gambling Establishments Did Not Violate Federal Internet Tax Freedom Act. - City's privilege license tax on cyber-gambling establishments did not violate 47 U.S.C.S. § 151 of the Internet Tax Freedom Act, as it was not a tax on internet access and did not impose multiple discriminatory taxes on electronic commerce. IMT, Inc. v. City of Lumberton, 219 N.C. App. 36, 724 S.E.2d 588 (2012).

Corporation Operating Coal and Ice Yards Liable for Tax. - A corporation operating coal and ice yards at established places of business in several cities of the State, one or more yards being operated in each of the cities, and maintaining scales, bins, etc., and a staff composed of a yard foreman and other employees at each establishment, was held liable for the tax imposed by a similar statute, such coal and ice yards being "mercantile establishments " within the meaning of the statute. Atlantic Ice & Coal Co. v. Maxwell, 210 N.C. 723, 188 S.E. 381 (1936).

City's practice of referring all privilege license applicants to the zoning administrator does not convert a privilege license into a regulatory license; the city's zoning compliance process does not involve or permit any discretion on the part of the zoning administrator as to whether a particular use is allowed in a particular district, in contrast to the special conditional use scheme of this section. Mom N Pops, Inc. v. City of Charlotte, 979 F. Supp. 372 (W.D.N.C. 1997), aff'd, 162 F.3d 1155 (4th Cir. 1998).

Privilege taxes laid upon trades and professions have been laid expressly for revenue since the enactment of provisions similar to this section. State v. Irvin, 126 N.C. 989, 35 S.E. 430 (1900).

Power to levy a tax on all trades includes any employment or business embarked into for gain or profit. Lenoir Drug Co. v. Town of Lenoir, 160 N.C. 571, 76 S.E. 480 (1912).

Unless Inconsistent with Special Law or Charter. - Unless inconsistent with a special law or charter of a city, a tax may be levied on a person engaging in any trade within the city. Guano Co. v. Town of Tarboro, 126 N.C. 68, 35 S.E. 231 (1900).

Charter and General Statute Construed Together. - The charter of a city giving it certain powers in respect to the levying of franchise taxes on trades and professions, etc., and the general statute will be construed together in determining the legislative grant of power to the municipality to levy taxes of this class. Hilton v. Harris, 207 N.C. 465, 177 S.E. 411 (1934).

Classification of Trades and Professions for Taxation to be Based on Reasonable Distinctions. - A municipal corporation is empowered to tax trades or professions carried on or enjoyed within the city, unless otherwise provided by law, but its classification of trades and professions for taxation must be based upon reasonable distinctions, and all persons similarly situated must be treated alike. Kenny Co. v. Brevard, 217 N.C. 269, 7 S.E.2d 542 (1940).

Classification Upheld. - The law of uniformity did not prohibit the classification by the municipality of dealers in a particular kind of merchandise separately from those whose business it was to sell other articles falling within the same generic term. Rosenbaum v. City of New Bern, 118 N.C. 83, 24 S.E. 1 (1896).

Classification Held Void. - An ordinance requiring a license of livery men, and providing that it should include any persons making contract for hire in town or "any person carrying any person with a vehicle out of town for hire " was void as being unreasonable. Town of Plymouth v. Cooper, 135 N.C. 1, 47 S.E. 129 (1904).

Tax on Firm Delivering Products in City Upheld. - Construing the charter of a city in pari materia with the general statute, the city was given power to tax a firm outside the city which delivered products inside the city to customers procured by its salesman and collected for its goods upon delivery, such trade being "carried on or enjoyed within the city." Hilton v. Harris, 207 N.C. 465, 177 S.E. 411 (1934).

Privilege License Tax on "Electronic Gaming Operations" Presumed Valid. - City's privilege license tax on electronic gaming operations was presumed valid because, (1) under the current state of the law, the activity was legal, and (2) the city had the authority to enact an ordinance imposing the tax, pursuant to G.S. 160A-211 and G.S. 105-109(e). Smith v. City of Fayetteville, 220 N.C. App. 249, 725 S.E.2d 405 (2012).

Summary Judgment Properly Upheld Privilege License Tax on "Electronic Gaming Operations." - When businesses contested a city's imposition of a privilege license tax, it was not error to grant the city summary judgment as to some businesses because (1) the tax was presumed valid, since the activity taxed was legal and the city had the authority to enact an ordinance taxing the activity, and (2) the businesses did not present sufficient evidence to rebut that presumption, as the businesses presented no evidence besides non-specific, widespread assertions that the tax would prohibit the businesses' business, did not present specific evidence on how the tax affected those particular businesses' revenues. Smith v. City of Fayetteville, 220 N.C. App. 249, 725 S.E.2d 405 (2012).

Summary Judgment Improperly Upheld Privilege License Tax on "Electronic Gaming Operations." - When businesses contested a city's imposition of a privilege license tax, it was error to grant the city summary judgment as to some businesses because (1) the businesses rebutted a presumption that the tax was valid by submitting affidavits detailing the businesses' gross revenues and net profits and asserting the tax would require the businesses to close, being joined by over 15 similar businesses, and showing the tax was over 9,000 percent greater than a previously imposed tax, and (2) the city presented evidence that the tax was not unreasonable or prohibitory, creating a genuine issue of material fact. Smith v. City of Fayetteville, 220 N.C. App. 249, 725 S.E.2d 405 (2012).

City's license privilege tax adopted pursuant to G.S. 105-109(e) and G.S. 160A-211, which represented a 59,900 percent increase in taxation for cyber-gambling businesses, was unconstitutional under the Just and Equitable Tax Clause, N.C. Const. art. V, § 2, and as a result, the lower courts erred in granting the city summary judgment. IMT, Inc. v. City of Lumberton, 366 N.C. 456, 738 S.E.2d 156 (2013).

A manufacturer of fertilizers maintaining its sales department in another state from which sales were exclusively made for fertilizer stored for distribution only in a city in this State was liable under an ordinance of the city levying a tax upon callings and professions, naming among others "fertilizer manufacturers' agents or dealers," the tax being for the protection afforded by the city in the exercise of such occupation, and the profits derived therefrom. Guano Co. v. City of New Bern, 158 N.C. 354, 74 S.E. 2 (1912).

Limitation on License Tax on Use of Motor Vehicle. - In light of G.S. 20-97, which expressly prohibited municipality from levying a license or privilege tax in excess of $1.00 upon the use of any motor vehicle licensed by the State, the provisions of a municipal ordinance imposing a license tax upon the operation of passenger vehicles for hire in addition to the $1.00 theretofore imposed by it upon motor vehicles generally was void, and could not be sustained upon the theory that it was a tax upon the business of operating a motor vehicle for hire rather than upon ownership of the vehicle, since the word "business " and the word "use," as used in the section, meant the same thing. Cox v. Brown, 218 N.C. 350, 11 S.E.2d 152 (1940).

City had the authority to allow the city tax collector to assess zoning compliance as part of the administration of the business privilege license tax and to deny a business privilege license to a sexually oriented business because the business sought to operate in violation of a zoning ordinance. Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 162 N.C. App. 603, 592 S.E.2d 205, cert. denied, 358 N.C. 543, 599 S.E.2d 43 (2004).

Comity Principles Prevented Federal Court from Granting Declaratory Relief. - In a 42 U.S.C.S. § 1983 action in which direct broadcast satellite providers sought a declaratory judgment that 2006 N.C. Sess. Laws 2006-151, which revoked the authority of local governments to charge franchise taxes to cable providers and vested the state with franchising authority, violated the Dormant Commerce Clause of U.S. Const., Art. I, § 8, cl. 3, comity principles prevented the court from granting the relief sought because (1) the franchise charges levied on cable providers by North Carolina's political subdivisions prior to 2006 N.C. Sess. Laws 2006-151 were taxes; (2) court-ordered redistribution of intrastate taxation authority would have been an inappropriate intrusion by the federal courts into North Carolina's tax laws, and (3) state courts provided a plain, adequate, and complete remedy for the alleged constitutional violations. DIRECTV, Inc. v. Tolson, 513 F.3d 119 (4th Cir. 2008).

Opinions of Attorney General

Editor's Note. - The opinions below were rendered under former similar statutory provisions.

Montgomery Ward Catalogue Sales Agency as "Chain Store " Subject to Privilege License Tax. - See opinion of Attorney General to Mr. Fred R. Harwell, Tax Collector, City of Washington, 41 N.C.A.G. 33 (1970).

Municipality May Levy Privilege License Tax on Court Reporters. - See opinion of Attorney General to Mr. William I. Thornton, Jr., Assistant Greensboro City Attorney, 41 N.C.A.G. 104 (1970), issued under former similar statutory provisions.

As to privilege license taxes on out-of-town beer wholesaler, see opinion of Attorney General to Mrs. Mary W. Moss, Clerk and Tax Collector, Town of Creedmoor, 40 N.C.A.G. 864 (1970), issued under former similar statutory provisions.

§ 160A-211.1: Repealed by Session Laws 2014-3, s. 12.3(b), effective July 1, 2015.

History

(1981, c. 704, s. 15; 1985, c. 462, s. 10; 1987, c. 850, s. 22; 1989, c. 168, s. 35; repealed by 2014-3, s. 12.3(b), effective July 1, 2015.)

Editor's Note. - Former G.S. 160A-211.1 pertained to the privilege license tax on low-level radioactive and hazardous waste facilities.

Session Laws 2014-3, s. 12.3(f), provides: "Except as otherwise provided, this section becomes effective July 1, 2015. This section does not affect the rights or liabilities of a county or city, a taxpayer, or other person arising under a statute amended or repealed by this section before its amendment or repeal, nor does it affect the right to any refund or credit of a tax that would otherwise have been available under the amended or repealed statute before its amendment or repeal."

§ 160A-212. Animal taxes.

A city shall have power to levy an annual license tax on the privilege of keeping any domestic animal, including dogs and cats, within the city. This section shall not limit the city's authority to enact ordinances under G.S. 160A-186.

History

(R.C., c. 111, s. 13; 1862, c. 51; Code, s. 3800; Rev., s. 2924; C.S., s. 2677; 1949, c. 933; 1971, c. 698, s. 1.)

CASE NOTES

Tax on Privilege of Keeping Dog. - Although a dog is property, a dog tax is not directly on the dog as property, but is upon the privilege of keeping a dog. Mowery v. Town of Salisbury, 82 N.C. 175 (1880), decided under former similar provisions.


§ 160A-213. Motor vehicle taxes.

  1. A city may impose an annual license tax on motor vehicles as permitted by G.S. 20-97.
  2. By ordinance a city may provide that the annual license tax imposed under subsection (a) above may be waived for individuals serving as firemen or as members of emergency medical teams. A city may also provide such individuals with tags or decals with distinctive coloring, or other means, to identify the individual as a fireman or a member of an emergency medical team.

History

(1971, c. 698, s. 1; 1979, c. 442.)

Cross References. - As to motor vehicle license or privilege taxes in counties or municipalities, see G.S. 20-97.


§ 160A-214: Repealed by Session Laws 2006-151, s. 13, effective January 1, 2007.

§ 160A-214.1. Uniform provisions for local meals taxes.

  1. Scope. - This section applies to every city authorized by the General Assembly to levy a meals tax. To the extent this section conflicts with any provision of a local act, this section supersedes that provision.
  2. Collection. - A retailer who is required to remit to the Department of Revenue the State and local sales and use tax is required to remit the local meals tax on prepared food and beverages to the taxing city on and after the effective date of the levy of the local meals tax.
  3. Penalties. - The civil and criminal penalties that apply to State sales and use taxes under Chapter 105 of the General Statutes apply to local meals taxes. The governing board of a taxing city has the same authority to waive the penalties for a meals tax that the Secretary of Revenue has to waive the penalties for State sales and use taxes.
  4. Definitions. - The following definitions apply in this section:
    1. City. - A municipality.
    2. Meals tax. - A tax on prepared food and beverages.
    3. Prepared food and beverages. - The term means both of the following:
      1. Prepared food, as defined in G.S. 105-164.3.
      2. An alcoholic beverage, as defined in G.S. 18B-101, that meets at least one of the conditions of prepared food under G.S. 105-164.3.

History

(2001-264, s. 2; 2020-58, s. 3.5(b).)

Editor's Note. - Session Laws 2001-264, s. 3, as amended by Session Laws 2002-72, s. 3, provides: "Any provision of a local act that conflicts with G.S. 153A-154.1 or G.S. 160A-214.1 is repealed. Any local meals tax penalty in addition to or greater than the corresponding penalty provided in G.S. 153A-154.1 or G.S. 160A-214.1 is repealed."

Session Laws 2020-58, s. 3.5(c), made the rewriting of this section by Session Laws 2020-58, s. 3.5(b), effective July 1, 2020, and applicable to sales occurring on or after that date.

Effect of Amendments. - Session Laws 2020-58, s. 3.5(b), rewrote the section. For effective date and applicability, see editor's note.

§ 160A-215. Uniform provisions for room occupancy taxes.

  1. Scope. - This section applies only to municipalities the General Assembly has authorized to levy room occupancy taxes. For the purpose of this section, the term "city" means a municipality.
  2. Levy. - A room occupancy tax may be levied only by resolution, after not less than 10 days' public notice and after a public hearing held pursuant thereto. A room occupancy tax shall become effective on the date specified in the resolution levying the tax. That date must be the first day of a calendar month, however, and may not be earlier than the first day of the second month after the date the resolution is adopted.
  3. Collection. - A retailer who is required to remit to the Department of Revenue the State sales tax imposed by G.S. 105-164.4(a)(3) on accommodations is required to remit a room occupancy tax to the taxing city on and after the effective date of the levy of the room occupancy tax. The room occupancy tax applies to the same gross receipts as the State sales tax on accommodations and is calculated in the same manner as that tax. An accommodation facilitator, as defined in G.S. 105-164.3, has the same responsibility and liability under the room occupancy tax as the accommodation facilitator has under the State sales tax on accommodations.
  4. Administration. - The taxing city shall administer a room occupancy tax it levies. A room occupancy tax is due and payable to the city finance officer in monthly installments on or before the 20th day of the month following the month in which the tax accrues. Every person, firm, corporation, or association liable for the tax shall, on or before the 20th day of each month, prepare and render a return on a form prescribed by the taxing city. The return shall state the total gross receipts derived in the preceding month from rentals upon which the tax is levied. A room occupancy tax return filed with the city finance officer is not a public record and may not be disclosed except in accordance with G.S. 153A-148.1 or G.S. 160A-208.1.
  5. Penalties. - A person, firm, corporation, or association who fails or refuses to file a room occupancy tax return or pay a room occupancy tax as required by law is subject to the civil and criminal penalties set by G.S. 105-236 for failure to pay or file a return for State sales and use taxes. The governing board of the taxing city has the same authority to waive the penalties for a room occupancy tax that the Secretary of Revenue has to waive the penalties for State sales and use taxes.
  6. Repeal or Reduction. - A room occupancy tax levied by a city may be repealed or reduced by a resolution adopted by the governing body of the city. Repeal or reduction of a room occupancy tax shall become effective on the first day of a month and may not become effective until the end of the fiscal year in which the resolution was adopted. Repeal or reduction of a room occupancy tax does not affect a liability for a tax that was attached before the effective date of the repeal or reduction, nor does it affect a right to a refund of a tax that accrued before the effective date of the repeal or reduction.
  7. Use. - The proceeds of a room occupancy tax shall not be used for development or construction of a hotel or another transient lodging facility.
  8. Applicability. - Subsection (c) of this section applies to all cities that levy an occupancy tax. To the extent subsection (c) conflicts with any provision of a local act, subsection (c) supersedes that provision. The remainder of this section applies only to Beech Mountain District W, to the Cities of Belmont, Conover, Eden, Elizabeth City, Gastonia, Goldsboro, Greensboro, Hickory, High Point, Jacksonville, Kings Mountain, Lake Santeetlah, Lenoir, Lexington, Lincolnton, Lowell, Lumberton, Monroe, Mount Airy, Mount Holly, Reidsville, Roanoke Rapids, Salisbury, Sanford, Shelby, Statesville, Washington, and Wilmington, to the Towns of Ahoskie, Beech Mountain, Benson, Bermuda Run, Blowing Rock, Boiling Springs, Boone, Burgaw, Carolina Beach, Carrboro, Cooleemee, Cramerton, Dallas, Dobson, Elkin, Fontana Dam, Franklin, Grover, Hillsborough, Jonesville, Kenly, Kure Beach, Leland, McAdenville, Mocksville, Mooresville, Murfreesboro, North Topsail Beach, Pembroke, Pilot Mountain, Ranlo, Robbinsville, Selma, Smithfield, St. Pauls, Swansboro, Troutman, Tryon, West Jefferson, Wilkesboro, Wrightsville Beach, Yadkinville, Yanceyville, to the municipalities in Avery and Brunswick Counties, and to Saluda District D.

If a taxable accommodation is furnished as part of a package, the bundled transaction provisions in G.S. 105-164.4D apply in determining the sales price of the taxable accommodation. If those provisions do not address the type of package offered, the person offering the package may determine an allocated price for each item in the package based on a reasonable allocation of revenue that is supported by the person's business records kept in the ordinary course of business and calculate tax on the allocated price of the taxable accommodation.

A retailer must separately state the room occupancy tax. Room occupancy taxes paid to a retailer are held in trust for and on account of the taxing city.

The taxing city shall design and furnish to all appropriate businesses and persons in the city the necessary forms for filing returns and instructions to ensure the full collection of the tax. An operator of a business who collects a room occupancy tax may deduct from the amount remitted to the taxing city a discount equal to the discount the State allows the retailer for State sales and use tax.

History

(1997-361, s. 4; 1997-364, s. 5; 1997-410, s. 3; 1997-447, s. 2; 1998-112, s. 4; 1999-258, s. 3; 1999-302, s. 2; 2000-103, s. 9; 2001-11, s. 2; 2001-365, s. 3; 2001-434, s. 9; 2001-439, s. 18.1; 2002-94, s. 4; 2002-95, s. 3; 2002-138, s. 2; 2002-139, s. 2; 2002-159, s. 62; 2003-281, s. 14; 2004-105, s. 3; 2004-170, ss. 36(b), 42(b); 2004-199, s. 60(b); 2005-16, s. 3; 2005-46, s. 2.3; 2005-49, s. 3; 2005-220, s. 5; 2005-233, s. 6.2; 2005-435, s. 45; 2006-118, s. 4; 2006-120, ss. 8.2, 10.2; 2006-148, s. 3; 2006-162, s. 20(b); 2006-164, s. 3; 2006-167, s. 3; 2006-264, ss. 19, 81(a); 2007-224, s. 6; 2007-317, s. 3; 2007-340, s. 10; 2007-484, s. 43; 2007-527, s. 42; 2008-64, s. 2; 2008-134, s. 12(c); 2009-169, s. 8; 2009-291, s. 2; 2009-428, s. 4; 2009-429, s. 8; 2010-31, s. 31.6(e), (f); 2010-78, s. 11; 2010-123, s. 10.2; 2011-69, s. 2; 2011-170, s. 6; 2012-107, s. 2; 2013-351, s. 1.3; 2015-102, s. 2; 2017-202, s. 9.1(a); 2018-5, s. 38.10(f); 2019-246, s. 4(f).)

Local Modification. - City of Belmont: 2005-220 (as to subsection (g)); 2017-48, s. 1 (as to subsection (g)); city of Greensboro: 1999, c. 302, ss. 1, 2.

Tourism Promotion and Development. - Session Laws 2001-162, 2001-305, 2001-321, 2001-365, 2001-381, as amended by 2005-120 and 2005-435, s. 52, as rewritten and recodified by 2007-112, s. 1, 2001-434, 2001-439, 2001-480, as amended by Session Laws 2002-36, 2001-484, 2002-94, 2002-95, as amended by Session Laws 2007-340, s. 1, 2002-138 and 2002-139, Session Laws 2003-281, ss. 12, 13, and Session Laws 2009-169, authorize the affected localities (the counties of Anson, Avery, Buncombe, Cabarrus, Carteret, Cumberland, Dare, Durham, Montgomery, Pender, Richmond, Rowan, Stanly, and Vance, the cities of Conover, Gastonia, Hickory, Kings Mountain, Lincolnton, Monroe, Mount Airy, North Topsail Beach, and Wilmington, the towns in Avery county and the towns of Banner Elk, Beech Mountain, Blowing Rock, Carolina Beach, Carrsboro, Jonesville, Kure Beach, Selma, Smithfield, Wilkesboro, and Wrightsville Beach, and the Township of Averasboro in Harnett County) to levy additional occupancy taxes for tourism promotion and development.

Session Laws 2011-69 authorizes the Town of Hillsborough to levy additional occupancy taxes for tourism promotion and development.

Editor's Note. - Session Laws 1997-361, s. 4 enacted this section and made it effective to the Cities of Lumberton and Shelby only. Session Laws 1997-364, s. 5 also enacted this section, making it effective to municipalities in Brunswick County. Session Laws 1997-410, s. 3 made this section applicable to the City of Mount Airy. Session Laws 1997-447, s. 2 made this section applicable to the Cities of Goldsboro, Lumberton, Mount Airy and Shelby and to the municipalities in Brunswick County. Session Laws 1998-112, s. 4 added the City of Statesville and the Town of St. Pauls to the list of localities to which this section applies. Session Laws 1999-258, s. 3 added the Town of Mooresville to this list, and Session Laws 1999-302, s. 2 added the City of Greensboro. The section has been codified at the direction of the Revisor of Statutes.

Session Laws 2002-94, s. 4 inserted "and Seven Devils District W" in subsection (g). Session Laws 2002-159, s. 62, repealed that amendment, and thus G.S. 160A-215(g) is set out without giving effect to Session Laws 2002-94, s. 4.

Session Laws 2006-120, s. 8.2, had inserted "Boiling Springs" in subsection (g); however, that insertion of "Boiling Springs" was repealed, pursuant to the terms of Session Laws 2006-120, s. 10.2, upon the passage of Session Laws 2006-148, s. 3, which also inserted "Boiling Springs" in subsection (g).

Session Laws 2018-5, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2018.'"

Session Laws 2019-246, s. 4(n), provides: "There is no obligation to collect the sales and use tax required by this section retroactively."

Session Laws 2019-246, s. 4(q), made the amendment to subsection (c) of this section by Session Laws 2019-246, s. 4(f), effective February 1, 2020, and applicable to sales occurring on or after that date.

Session Laws 2019-246, s. 4(o), is a severability clause.

Effect of Amendments. - Session Laws 2004-105, s. 3, effective July 16, 2004, inserted "Franklin" in the list in subsection (g).

Session Laws 2004-170, ss. 36.(b), effective October 1, 2004, substituted "20th day" for "fifteenth day" in the second sentence of subsection (d).

Session Laws 2005-16, s. 3, as amended by Session Laws 2006-264, s. 81(a), effective July 1, 2005, inserted "Elizabeth City" in subsection (g).

Session Laws 2005-46, s. 2.3, effective May 17, 2005, inserted "Roanoke Rapids" in subsection (g).

Session Laws 2005-49, s. 3, effective May 18, 2005, inserted "West Jefferson" in subsection (g).

Session Laws 2005-220, s. 5, effective July 26, 2005, in subsection (g), inserted "Belmont," and "Troutman."

Session Laws 2005-233, s. 6.2, effective July 28, 2005, inserted "Eden," and "Reidsville" in subsection (g).

Session Laws 2005-435, s. 45, effective September 27, 2005, in subsection (d), substituted "15th" for "20th" in the second sentence and "20th" for "fifteenth" in the third sentence.

Session Laws 2006-118, s. 4, effective July 13, 2006, in subsection (g), inserted "Dobson, Elkin" and inserted "Pilot Mountain".

Session Laws 2006-120, s. 8.2, effective July 17, 2006, in subsection (g), inserted "Benson" and "Kenly".

Session Laws 2006-148, s. 3, effective July 20, 2006, in subsection (g), inserted "Boiling Springs" and "Tryon".

Session Laws 2006-162, s. 20(b), effective July 24, 2006, substituted "20th day" for "15th day" in the second sentence in subsection (d).

Session Laws 2006-164, s. 3, effective July 26, 2006, inserted "Ahoskie" in subsection (g).

Session Laws 2006-167, s. 3, effective July 27, 2006, inserted "Burgaw" in subsection (g).

Session Laws 2006-264, s. 19, effective August 27, 2006, in subsection (g), inserted "Jonesville" and made minor punctuation changes.

Session Laws 2007-224, s. 6, as amended by Session Laws 2007-484, s. 43, and Session Laws 2007-527, s. 42, effective July 17, 2007, in subsection (g), deleted "and" preceding "Wrightsville Beach" and added "and Yanceyville."

Session Laws 2007-317, s. 3, effective July 30, 2007, added "Dallas" following "Carrboro" in subsection (g).

Session Laws 2007-340, s. 10, effective August 2, 2007, added "Yadkinville, and" in subsection (g).

Session Laws 2008-64, s. 2, effective July 8, 2008, inserted "Leland" in subsection (g).

Session Laws 2008-134, s. 12(c), effective July 28, 2008, in subsection (c), divided the subsection into the present three paragraphs, added the third and fourth sentences to the first paragraph, and made related changes.

Session Laws 2009-169, s. 8, effective June 25, 2009, inserted "Conovor" and "Hickory" in subsection (g).

Session Laws 2009-291, s. 2, effective July 13, 2009, inserted "Boone" in subsection (g).

Session Laws 2009-248, s. 4, effective August 6, 2009, inserted "Salisbury" and "Murfreesboro" in subsection (g).

Session Laws 2009-429, s. 8, effective August 6, 2009, inserted "Jacksonville," "Lenoir," "Lowell, " "Mount Holly," "Cramerton," "McAdenville," and "Ranlo" in subsection (g).

Session Laws 2010-78, s. 11, effective July 9, 2010, inserted "Bermuda Run," "Cooleemee," "Mocksville," and "Pembroke" in subsection (g).

Session Laws 2011-69, s. 2, effective May 11, 2011, inserted "Hillsborough" in subsection (g).

Session Laws 2011-170, s. 6, effective June 17, 2011, inserted "Grover" and "Swansboro" in subsection (g).

Session Laws 2012-107, s. 2, effective June 28, 2012, inserted "Fontana Dam" in subsection (g).

Session Laws 2013-351, s. 1.3, effective July 25, 2013, added "Robbinsville" in subsection (g).

Session Laws 2015-102, s. 2, effective June 22, 2015, inserted "Lake Santeetlah," after "Kings Mountain," in the third sentence of subsection (g).

Session Laws 2017-202, s. 9.1(a), effective August 3, 2017, in subsection (g), inserted "Sanford" and substituted "Yadkinville, Yanceyville, to the municipalities in Avery and Brunswick Counties, and to Saluda District D" for "Yadkinville, and Yanceyville, and to the municipalities in Avery and Brunswick Counties."

Session Laws 2018-5, s. 38.10(f), effective June 12, 2018, substituted "G.S. 105-164.4F" for "G.S. 105-164.4(a)(3)" in the third sentence of the first paragraph of subsection (c).

Session Laws 2019-246, s. 4(f), in subsection (c), substituted "A rental agent or a facilitator, as defined in G.S. 105-164.4F," for "An accommodation facilitator, as defined in G.S. 105-164.3,"; substituted "rental agent" for "accommodation." For effective date and applicability, see editor's note.


§ 160A-215.1. Gross receipts tax on short-term leases or rentals.

  1. As a substitute for and in replacement of the ad valorem tax, which is excluded by G.S. 105-275(42), a city may levy a gross receipts tax on the gross receipts from the short-term lease or rental of vehicles at retail to the general public. The tax rate shall not exceed one and one-half percent (1.5%) of the gross receipts from such short-term leases or rentals.
  2. If a city enacts the substitute and replacement gross receipts tax pursuant to this section, any entity required to collect the tax shall include a provision in each retail short-term lease or rental agreement noting that the percentage amount enacted by the city of the total lease or rental price, excluding highway use tax, is being charged as a tax on gross receipts. For purposes of this section, the transaction giving rise to the tax shall be deemed to have occurred at the location of the entity from which the customer takes delivery of the vehicle. The tax shall be collected at the time of lease or rental and placed in a segregated account until remitted to the city.
  3. The collection and use of taxes under this section are not subject to highway use tax and are not included in the gross receipts of the entity. The proceeds collected under this section belong to the city and are not subject to creditor liens against the entity.
  4. A tax levied under this section shall be collected by the city but otherwise administered in the same manner as the tax levied under G.S. 105-164.4(a)(2).
  5. The following definitions apply in this section:
    1. Short-term lease or rental. - Defined in G.S. 105-187.1.
    2. Vehicle. - Any of the following:
      1. A motor vehicle of the passenger type, including a passenger van, minivan, or sport utility vehicle.
      2. A motor vehicle of the cargo type, including cargo van, pickup truck, or truck with a gross vehicle weight rating of 26,000 pounds or less used predominantly in the transportation of property for other than commercial freight and that does not require the operator to posses a commercial drivers license.
      3. A trailer or semitrailer with a gross vehicle weight of 6,000 pounds or less.
  6. The penalties and remedies that apply to local sales and use taxes levied under Subchapter VIII of Chapter 105 of the General Statutes apply to a tax levied under this section. The governing body of the city may exercise any power the Secretary of Revenue may exercise in collecting local sales and use taxes.

History

(2000-2, s. 3; 2000-140, s. 75(c); 2001-414, s. 51; 2014-3, s. 12.3(d).)

Editor's Note. - The definitions in subsection (e) have been set out in alphabetical order at the direction of the Revisor of Statutes.

Session Laws 2014-3, s. 12.3(f), provides: "Except as otherwise provided, this section becomes effective July 1, 2015. This section does not affect the rights or liabilities of a county or city, a taxpayer, or other person arising under a statute amended or repealed by this section before its amendment or repeal, nor does it affect the right to any refund or credit of a tax that would otherwise have been available under the amended or repealed statute before its amendment or repeal."

Effect of Amendments. - Session Laws 2014-3, s. 12.3(d), deleted the former last sentence in subsection (a), which read: "This tax on gross receipts is in addition to the privilege taxes authorized by G.S. 160A-211." For effective date and applicability, see Editor's note.


§ 160A-215.2. Heavy equipment gross receipts tax in lieu of property tax.

  1. Definitions. - The following definitions apply in this section:
    1. Heavy equipment. - Defined in G.S. 153A-156.1.
    2. Short-term lease or rental. - Defined in G.S. 105-187.1.
  2. Tax Authorized. - A city may, by ordinance, impose a tax at the rate of eight tenths percent (0.8%) on the gross receipts from the short-term lease or rental of heavy equipment by a person whose principal business is the short-term lease or rental of heavy equipment at retail. The heavy equipment subject to this tax is exempt from property tax under G.S. 105-275, and this tax provides an alternative to a property tax on the equipment. A person is not considered to be in the short-term lease or rental business if the majority of the person's lease and rental gross receipts are derived from leases and rentals to a person who is a related person under G.S. 105-163.010.
  3. Payment. - A person whose principal business is the short-term lease or rental of heavy equipment is required to remit a tax imposed by this section to the city. The tax is payable quarterly and is due by the last day of the month following the end of the quarter. The tax is intended to be added to the amount charged for the short-term lease or rental of heavy equipment and paid to the heavy equipment business by the person to whom the heavy equipment is leased or rented.
  4. Enforcement. - The penalties and collection remedies that apply to the payment of sales and use taxes under Article 5 of Chapter 105 of the General Statutes apply to a tax imposed under this section. The city finance officer has the same authority as the Secretary of Revenue in imposing these penalties and remedies.
  5. Effective Date. - A tax imposed under this section becomes effective on the date set in the ordinance imposing the tax. The date must be the first day of a calendar quarter and may not be sooner than the first day of the calendar quarter that begins at least two months after the date the ordinance is adopted.
  6. Repeal. - A city may, by ordinance, repeal a tax imposed under this section. The repeal is effective on the date set in the ordinance. The date must be the first day of a calendar quarter and may not be sooner than the first day of the calendar quarter that begins at least two months after the date the ordinance is adopted.

The tax authorized by this section applies to gross receipts that are subject to tax under G.S. 105-164.4(a)(2). Gross receipts from the short-term lease or rental of heavy equipment are subject to a tax imposed by a city under this section if the place of business from which the heavy equipment is delivered is located in the city.

History

(2008-144, s. 3; 2009-445, s. 27(a).)

Editor's Note. - Section Laws 2008-144, s. 5, made this section effective August 2, 2008, and provided, in part, that a tax imposed under G. S. 153A-156.1 or G.S. 160A-215.2 may not become effective before January 1, 2009.

Session Laws 2009-445, s. 27(b), effective August 7, 2009, provides: "A heavy equipment gross receipts tax levied by a city ordinance or a city resolution on or before the effective date of this act is valid and remains in effect until amended or repealed."

Effect of Amendments. - Session Laws 2009-445, s. 27(a), effective August 7, 2009, substituted "ordinance" for "resolution" throughout the section; and in subsection (c), substituted "to the city" for "to the city finance officer."

ARTICLE 10. Special Assessments.

Sec.

§ 160A-216. Authority to make special assessments.

Any city is authorized to make special assessments against benefited property within its corporate limits for:

  1. Constructing, reconstructing, paving, widening, installing curbs and gutters, and otherwise building and improving streets;
  2. Constructing, reconstructing, paving, widening, and otherwise building or improving sidewalks in any public street;
  3. Constructing, reconstructing, extending, and otherwise building or improving water systems;
  4. Constructing, reconstructing, extending, or otherwise building or improving sewage collection and disposal systems of all types, including septic tank systems or other on-site collection or disposal facilities or systems;
  5. Constructing, reconstructing, extending, and otherwise building or improving storm sewer and drainage systems.

History

(1971, c. 698, s. 1; 1975, c. 664, s. 8; 1979, c. 619, s. 12.)

Local Modification. - (As to Article 10) city of Asheboro: 1989 (Reg. Sess., 1990), c. 921, s. 13; city of Belmont: (As to Article 10) 2005-111, s. 1; 2017-48, s. 1; (As to Article 10) city of Hendersonville: 1991, c. 438; city of High Point: 1989 (Reg. Sess., 1990), c. 919; (as to Article 10) city of Kinston: 1987, c. 169, s. 1; city of Mebane: 2017-82, s. 1; (As to Article 10) city of Monroe: 2000-35, s. 1; (As to Article 10) city of Oxford: 1993, c. 240, s. 2; (As to Article 10) city of Reidsville: 1989 (Reg. Sess., 1990), c. 957, s. 1; city of Roanoke Rapids: 2007-266, s. 2; city of Sanford: 1987, c. 403, s. 1(12): 160A-216; 2008-70, s. 1; city of Southport: 1983, c. 659; city of Statesville: 1991, c. 698; city of Washington: 1983 (Reg. Sess., 1984), c. 951; (As to Article 10) city of Whiteville: 1987 (Reg. Sess., 1988), c. 1018, s. 1; town of Ahoskie: 1987, c. 262, s. 1; town of Apex: 1985, c. 356; town of Benson: 1999-91, s. 1; town of Calabash: 1987, c. 468, s. 5; (As to Article 10) town of Carrboro: 2007-266, s. 1; town of Caswell Beach: 1991 (Reg. Sess., 1992), c. 825, s. 1; town of Clayton: 1987 (Reg. Sess., 1988), c. 983, s. 1; town of Elon College: 1985, c. 109; town of Holden Beach: Session Laws 1981, c. 334; 1987 (Reg. Sess., 1988), c. 951; c. 954; (As to Article 10) town of Long Beach: 1991, c. 464; town of Marietta: 1985, c. 111; town of Ocean Isle Beach: 1989, c. 380, s. 1; (as to Article 10) 2001-478, s. 2.2; town of Sunset Beach: 1987 (Reg. Sess., 1988), c. 954, s. 1; 1989 (Reg. Sess., 1990), c. 875; town of Wake Forest: 1989 (Reg. Sess., 1990), c. 873; town of Wendell: 1985, c. 107; town of Yaupon Beach: 1998-206, s. 1.

Cross References. - As to property taxes to provide for drainage projects or programs, see G.S. 160A-209.

Legal Periodicals. - For article, "Transferring North Carolina Real Estate, Part I: How the Present System Functions," see 49 N.C.L. Rev. 413 (1971).

CASE NOTES

Editor's Note. - Most of the cases cited below were decided under former G.S. 160-78 to 160-105 or prior similar provisions.

As to separate construction of general statutes and special or local laws, see City of Kinston v. Atlantic & N.C.R.R., 183 N.C. 14, 110 S.E. 645 (1922). See also, G.S. 160A-3.

In case a special or local law is invalid, the general statutes may be followed in making local improvements. But their provisions must be complied with. Cottrell v. Town of Lenoir, 173 N.C. 138, 91 S.E. 827 (1917).

Power to Impose Assessments Within Right of Taxation. - The power to impose assessments upon owners whose lands abut upon the streets of a city to be improved comes within the sovereign right of taxation, and no license, permit, or franchise from the legislature or a municipal board will be construed to establish an exemption from the proper exercise of this power, or in derogation of it, unless such bodies are acting clearly within their authority, and the grant itself is in terms so clear and explicit as to be free from substantial doubt. City of Durham v. Durham Pub. Serv. Co., 182 N.C. 333, 109 S.E. 40 (1921), aff'd, 261 U.S. 149, 43 S. Ct. 290, 67 L. Ed. 580 (1923).

Ownership of Street Prerequisite to Assessment for Improvement. - The ownership by the city of a street is a prerequisite to the power of the city to levy an assessment for street improvements against abutting owners thereon. Efird v. City of Winston-Salem, 199 N.C. 33, 153 S.E. 632 (1930).

Liability of Municipal Parks for Assessments. - Absent constitutional or statutory provisions to the contrary, the public property of a municipality, such as parks, etc., is subject to assessment for local improvements of its streets; hence, when there is no provision exempting same, a public park of a city was included within the intent and meaning of Laws 1915, Chapter 56, providing that lands abutting on a street to be paved or improved should be assessed for such improvements to the extent of the respective frontage of the lots thereon, in a certain proportionate part of the cost, by the "front foot" rule. Town of Tarboro v. Forbes, 185 N.C. 59, 116 S.E. 81 (1923).

School Property Held Subject to Assessment. - Lands owned by "The School Committee of Raleigh Township, Wake County" and used exclusively for public school purposes were liable for assessment for street improvements made by the City of Raleigh. City of Raleigh v. Raleigh City Admin. Unit, 223 N.C. 316, 26 S.E.2d 591 (1943).

Interference by Courts. - Where an act allows assessments to be made by a city on property abutting on a street for pavement or improvements thereon, the legislative declaration on the subject is conclusive as to the necessity and benefit of the proposed improvements, and in applying the principle and estimating the amount as against the owners, individual or corporate, the court may interfere only in case of palpable and gross abuse. Kinston v. Atlantic & N.C.R.R., 183 N.C. 14, 110 S.E. 645 (1922).

Applied in Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820 (1981); Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982); In re Dunn, 73 N.C. App. 243, 326 S.E.2d 309 (1985).

Cited in Cutting v. Foxfire Village, 75 N.C. App. 161, 330 S.E.2d 210 (1985); Ricks v. Town of Selma, 99 N.C. App. 82, 392 S.E.2d 437 (1990).


§ 160A-217. Petition for street or sidewalk improvements.

  1. A city shall have no power to levy special assessments for street or sidewalk improvements unless it receives a petition for the improvements signed by at least a majority in number of the owners of property to be assessed, who must represent at least a majority of all the lineal feet of frontage of the lands abutting on the street or portion thereof to be improved. Unless the petition specifies another percentage, not more than fifty percent (50%) of the cost of the improvement may be assessed (not including the cost of improvements made at street intersections).
  2. Property owned by the United States shall not be included in determining the lineal feet of frontage on the improvement, nor shall the United States be included in determining the number of owners of property abutting the improvement. Property owned by the State of North Carolina shall be included in determining frontage and the number of owners only if the State has consented to assessment in the manner provided in G.S. 160A-221. Property owned by railroad companies shall be included in determining frontage and the number of owners to the extent that the property is subject to assessment under G.S. 160A-222. Property owned by railroad companies that is not subject to assessment shall not be included in determining frontage and the number of owners. If it is necessary to exclude property owned by the United States, the State of North Carolina, or a railroad company in order to obtain a valid petition under subsection (a), not more than fifty percent (50%) of the cost (not including the cost of improvement at street intersections) may be assessed unless all of the owners subject to assessment agree to a higher percentage.
  3. No right of action or defense asserting the invalidity of street or sidewalk assessments on grounds that the city did not comply with this section in securing a valid petition shall be asserted except in an action or proceeding begun within 90 days after publication of the notice of adoption of the preliminary assessment resolution.

History

(1915, c. 56, ss. 4, 5; C.S., ss. 2706, 2707; 1955, c. 675; 1963, c. 1000, s. 1; 1971, c. 698, s. 1; 1973, c. 426, s. 33.)

Local Modification. - City of Beech Mountain: 1995, c. 133, s. 1; City of Laurinburg: 2000-13, s. 1; city of Oxford: 1993, c. 240, s. 1; town of Ahoskie: 1987, c. 261; 1987 (Reg. Sess., 1988), c. 962; town of Carrboro: 1987, c. 476, s. 1; town of Tabor City: 2002-13; town of Wake Forest: 1989, c. 347, s. 1.

City of Beech Mountain: 1995, c. 133, s. 1; City of Laurenburg: 2000-13, s. 1; city of Oxford: 1993, c. 240, s. 1; town of Ahoskie: 1987, c. 261; 1987 (Reg. Sess., 1988), c. 962; town of Carrboro: 1987, c. 476, s. 1; town of Tabor City: 2002-13, s. 1; town of Wake Forest: 1989, c. 347, s. 1.

CASE NOTES

Editor's Note. - Many of the cases cited below were decided under former similar statutory provisions.

Procedure Must Fulfill Essential Requirements. - While a slight informality of procedure or a failure to observe a provision which is merely directory will not generally affect the validity of an assessment, it is nevertheless true that any substantial and material departure from the essential requirements of the law under which the improvement is made will render an assessment therefor invalid. Town of Tarboro v. Forbes, 185 N.C. 59, 116 S.E. 81 (1923).

Invalidity of Assessment Absent Proper Petition. - An assessment for widening a street under contract with the Highway Commission (now Board of Transportation) without petition of a majority of the owners is invalid. Sechriest v. City of Thomasville, 202 N.C. 108, 162 S.E. 212 (1932).

Absence of Petition Cured by Legislation. - When improvements are made under an assessment, and there has been no petition as required by statute, the assessments are invalid. However, this defect may be cured by a validating act of the legislature although the act is retrospective. Holton v. Town of Mockville, 189 N.C. 144, 126 S.E. 326 (1925); Gallimore v. City of Thomasville, 191 N.C. 648, 132 S.E. 657 (1926).

Where levies are made without a petition, the assessments are invalid but not void, and the legislature has the power to validate the assessments by subsequent legislative act, since the legislature had the power to authorize the assessments in the first instance. Crutchfield v. City of Thomasville, 205 N.C. 709, 172 S.E. 366 (1934).

The General Assembly, which has the power to confer upon the authorities of a municipal corporation the power to improve its streets and sidewalks and to assess the owners of abutting property with a part of the cost of such improvements without a petition, as indicated by this section, also has the power to validate proceedings for the improvement of streets and sidewalks which were begun and which have been concluded without an initial petition. Crutchfield v. City of Thomasville, 205 N.C. 709, 172 S.E. 366 (1934).

When Governing Body's Determination as to Sufficiency of Petition Is Conclusive. - Where it appears upon the face of a petition, as a matter of law, that the signers of the petition do not represent a majority of the lineal feet of the total frontage on the street proposed to be improved, the determination of the governing body as to the sufficiency of the petition is not final or conclusive. Insofar as the sufficiency of the petition involves only questions of fact, the determination of the governing body, in the absence of fraud, and when acting in good faith, is final and conclusive. City of Tarboro v. Forbes, 185 N.C. 59, 116 S.E. 81 (1923); Gallimore v. City of Thomasville, 191 N.C. 648, 132 S.E. 657 (1926).

Where municipal authorities have approved the petition of owners of land abutting upon a street proposed to be improved in accordance with the statute, their approval and order for the improvements to be made is final, except where it appears from the face of the petition, as a matter of law, that the signers do not represent a majority of the owners or of the lineal feet required by statute. Jones v. City of Durham, 197 N.C. 127, 147 S.E. 824 (1929).

Complaint Alleging Invalidity of Petition Held Insufficient. - In an action to have an assessment levied against plaintiff's property declared invalid, a complaint alleging that only one of the signatures of abutting property owners to the petition for improvements was valid, without alleging that the assessment was based on the petition, what other signatures appeared on the petition, or facts supporting the conclusion that the other signatures were invalid, was insufficient to state a cause of action, and demurrer to the complaint was properly sustained. Broadway v. Town of Asheboro, 250 N.C. 232, 108 S.E.2d 441 (1959).

When City Owns Part of Abutting Land. - A town is subject to assessment on its abutting property, and the rule of a majority of lineal feet and number of owners will apply just the same when a city owns a part of the abutting land as any other time. And if the city fails to sign when its signature is necessary to have a majority of lineal feet, the assessment is a nullity. Town of Tarboro v. Forbes, 185 N.C. 59, 116 S.E. 81 (1923).

Improvement of Only One Side of Street. - An assessment levied for street improvements on abutting property owners is not void on the ground that the assessment was for improving only one side of a street. Town of Waxhaw v. Seaboard A.L. Ry., 195 N.C. 550, 142 S.E. 761 (1928).

Signatures as Evidence of Agency. - Where wife owned the locus in quo and petition for public improvements was signed by both husband and wife, the signature of the wife as the owner of the property along with the signature of the husband was sufficient evidence to be submitted to the jury on the issue of whether wife constituted her husband her agent to subsequently act for her in the premises, rendering the listing of the property in his name on the assessment roll and the special assessment book and the giving of the statutory notices to him sufficient, and thus rendering the lien against the property valid and enforceable as against her and as against her subsequent grantee. Town of Wadesboro v. Coxe, 218 N.C. 729, 12 S.E.2d 223 (1940).

Resolution as Evidence. - In an action by a municipality to enforce a lien for public improvements, objection that plaintiff failed to introduce in evidence the petition for improvements signed by the owners of a majority of the lineal feet frontage abutting the improvements was held untenable where the original resolution of the city, introduced in evidence, recited a proper petition and that it was duly certified by the clerk, since if such finding was erroneous, the remedy for correction was by appeal. Town of Asheboro v. Miller, 220 N.C. 298, 17 S.E.2d 105 (1941).


§ 160A-218. Basis for making assessments.

Assessments may be made on the basis of:

  1. The frontage abutting on the project, at an equal rate per foot of frontage, or
  2. The area of land served, or subject to being served, by the project, at an equal rate per unit of area, or
  3. The value added to the land served by the project, or subject to being served by it, being the difference between the appraised value of the land without improvements as shown on the tax records of the county, and the appraised value of the land with improvements according to the appraisal standards and rules adopted by the county at its last revaluation, at an equal rate per dollar of value added; or
  4. The number of lots served, or subject to being served, where the project involves extension of an existing system to a residential or commercial subdivision, at an equal rate per lot; or
  5. A combination of two or more of these bases.

Whenever the basis selected for assessment is either area or value added, the council may provide for the laying out of benefit zones according to the distance of benefited property from the project being undertaken, and may establish differing rates of assessment to apply uniformly throughout each benefit zone.

For each project, the council shall endeavor to establish an assessment method from among the bases set out in this section which will most accurately assess each lot or parcel of land according to the benefit conferred upon it by the project. The council's decision as to the method of assessment shall be final and conclusive and not subject to further review or challenge.

History

(1971, c. 698, s. 1.)

Local Modification. - Town of Benson: 1999-91, s. 1; town of Santeetlah: 1993, c. 546, s. 1; village of Bald Head Island: 1989 (Reg. Sess., 1990), c. 925, s. 2.

CASE NOTES

Assessments for constructing drains need not be the same, for costs will be different because of difference in location and slope of the several lots. Gallimore v. Town of Thomasville, 191 N.C. 648, 132 S.E. 657 (1926), decided under former statutory provisions.

Method used to determine amount of value added to individual lots served by water system construction, calculating the average value of the improvement to all unimproved lots and establishing a nominal percentage thereof as the increase in value to improved lots, was not a method sanctioned by subdivision (3). This subdivision clearly prescribes a before and after improvement appraisal of the property, with the assessment based on a set rate per value added to the land served, an amount which may necessarily vary due to the nature of the individual lots themselves. Cutting v. Foxfire Village, 75 N.C. App. 161, 330 S.E.2d 210, cert. denied, 314 N.C. 664, 335 S.E.2d 499 (1985).

Decisions as to Benefits to Property Are Final. - The decisions of the city council as to the method of assessment and the total cost of an improvement are final and conclusive and not subject to further review or challenge. This includes decisions as to whether and how much a property is benefitted by the improvements. In re Dunn, 73 N.C. App. 243, 326 S.E.2d 309, cert. denied, 313 N.C. 602, 332 S.E.2d 180 (1985).


§ 160A-219. Corner lot exemptions.

The council shall have authority to establish schedules of exemptions from assessments for corner lots when a project is undertaken along both sides of such lots. The schedules of exemptions shall be based on categories of land use (residential, commercial, industrial, or agricultural) and shall be uniform for each category. The schedule of exemptions may not provide exemption of more than seventy-five percent (75%) of the frontage of any side of a corner lot, or 150 feet, whichever is greater.

History

(1971, c. 698, s. 1.)

Local Modification. - Forsyth: 1999-89, s. 1; city of Winston-Salem: 1999-89, s. 1; town of Pittsboro: 1987, c. 460, s. 30.

§ 160A-220. Lands exempt from assessment.

No lands within a city, except as herein provided, shall be exempt from special assessments except lands belonging to the United States that are exempt under the provisions of federal statutes.

History

(1971, c. 698, s. 1.)

Opinions of Attorney General

Charitable Corporation Not Exempt from Special Assessments. - See opinion of Attorney General to Dr. H. G. Jones, Director, Department of Archives and History, 40 N.C.A.G. 454 (1970), issued under former statutory provisions.

§ 160A-221. Assessments against lands owned by the State.

When any city proposes to make local improvements that would benefit lands owned by the State of North Carolina or any board, agency, commission, or institution thereof, the council may request the Council of State to consent to special assessments against the property. The Council of State may authorize the Secretary of Administration to give consent for special assessments against State property, but the city may appeal to the Council of State if the Secretary of Administration refuses to give consent. When consent is given for special assessments against State lands, the Council of State may direct that the assessment be paid from the Contingency and Emergency Fund of the State of North Carolina or from any other available funds. If consent to the assessment is refused, the state-owned property shall be exempt from assessment.

History

(1971, c. 698, s. 1; 1975, c. 879, s. 46.)

§ 160A-222. Assessments against railroads.

Assessments shall not be made against land owned, leased or controlled by a railroad company, except that if there is a building on the land, the portion of railroad property subject to assessment shall be a lot whose frontage equals the actual front footage occupied by the building plus 25 feet on each side thereof, but not more than the amount of land owned, leased, or controlled by the railroad. If a building is placed on land that would have been subject to assessment but for the limitations imposed by this section after an improvement is made, then the railroad company shall be subject to an assessment without interest on the same basis as if the building had been on the property when the improvement was made.

It is the intent of this section to make uniform the law concerning assessments against railroads. To this end, all provisions of law, whether general or local, in conflict with this section are repealed; and no local act taking effect on or after January 1, 1972, shall be construed to modify, amend, or repeal any portion of this section unless it shall specifically so provide by reference hereto.

History

(1965, c. 839, s. 2; 1971, c. 698, s. 1.)

CASE NOTES

Editor's Note. - The cases cited below were decided under former G.S. 160-520 and 160-521.

Constitutionality. - Section exempting railroad right-of-way property from assessment for local improvements was not unconstitutional on grounds that it was not authorized by N.C. Const., Art. V, § 2, since those provisions deal with the power of taxation and not with assessments for local improvements. Southern Ry. v. City of Raleigh, 9 N.C. App. 305, 176 S.E.2d 21 (1970), aff'd, 277 N.C. 709, 178 S.E.2d 422 (1971).

Exemption Not Arbitrary. - The General Assembly did not act arbitrarily when, by enactment of former Article 42 of Chapter 160, it determined that railroad right-of-way property was not benefited by and should not be assessed for described local improvements. Southern Ry. v. City of Raleigh, 9 N.C. App. 305, 176 S.E.2d 21 (1970), aff'd, 277 N.C. 709, 178 S.E.2d 422 (1971).

Local Assessments Not "Taxes." - Local assessments may be a species of tax but they are not taxes within the meaning of the term as generally understood in constitutional restrictions and exemptions. These assessments proceed upon the theory that when a local improvement enhances the value of neighboring property, it is reasonable and competent for the legislature to provide that such property shall pay for the improvement. Southern Ry. v. City of Raleigh, 277 N.C. 709, 178 S.E.2d 422 (1971).

Purpose. - The only purpose of former similar section was to withdraw from municipalities the right to levy an assessment against vacant city lots over which railroads operate their trains. The language was plain, and did not require interpretation. Southern Ry. v. City of Raleigh, 277 N.C. 709, 178 S.E.2d 422 (1971).

General Application. - The language employed by the legislature in former similar section clearly manifested a legislative intent that it be of general application. Southern Ry. v. City of Raleigh, 9 N.C. App. 305, 176 S.E.2d 21 (1970), aff'd, 277 N.C. 709, 178 S.E.2d 422 (1971).

Legislature has power to determine by statute what property is benefited by local improvements, and the legislative declaration on the subject, in the absence of arbitrary action, is conclusive, notwithstanding provisions of municipal charter. Southern Ry. v. City of Raleigh, 9 N.C. App. 305, 176 S.E.2d 21 (1970), aff'd, 277 N.C. 709, 178 S.E.2d 422 (1971).

Legislature to Determine What Property Is Not Benefited. - The right of the legislature to determine what property is benefited by a street improvement includes the right to determine what property is not benefited thereby. The right to include involves the right to exclude, and the General Assembly, by providing that a municipality shall not assess railroad right-of-way property for local improvement "unless there is a building on such right-of-way," acted within its power. Southern Ry. v. City of Raleigh, 277 N.C. 709, 178 S.E.2d 422 (1971).

Street pavement would increase the value of a building by adding to its availability for profitable uses, and the municipality may assess the cost of paving frontage occupied by a building. Southern Ry. v. City of Raleigh, 277 N.C. 709, 178 S.E.2d 422 (1971).

But Not Railroad Right-of-Way. - A street pavement adjacent to a railroad right-of-way ordinarily would not increase the value of the right-of-way for railway purposes. Southern Ry. v. City of Raleigh, 277 N.C. 709, 178 S.E.2d 422 (1971).


§ 160A-223. Preliminary resolution; contents.

Whenever the council decides to finance a proposed project by special assessments, it shall first adopt a preliminary resolution that shall contain the following:

  1. A statement of intent to undertake the project;
  2. A general description of the nature and location of the project;
  3. A statement as to the proposed basis for making assessments, which shall include a general description of the boundaries of the area benefited if the basis of assessment is either area or value added;
  4. A statement as to the percentage of the cost of the work that is to be assessed;
  5. A statement as to which, if any, assessments shall be held in abeyance and for how long;
  6. A statement as to the proposed terms of payment of the assessment; and
  7. An order setting a time and place for a public hearing on all matters covered by the preliminary resolution which shall be not earlier than three weeks nor later than 10 weeks from the date of the adoption of the preliminary resolution.

History

(1971, c. 698, s. 1.)

§ 160A-224. Notice of preliminary resolution.

At least 10 days before the date set for the public hearing, the council shall publish a notice that a preliminary assessment resolution has been adopted and that a public hearing will be held on it at a specified time and place. The notice shall generally describe the nature and location of the improvement. In addition, at least 10 days prior to the hearing, the council shall cause a copy of the preliminary resolution to be mailed to the owners, as shown on the county tax records, of all property subject to assessment if the project should be undertaken. The person designated to mail these resolutions shall file with the council a certificate showing that they were mailed by first-class mail and on what date. The certificate shall be conclusive as to compliance with the mailing provisions of this section in the absence of fraud.

History

(1971, c. 698, s. 1.)

Local Modification. - Town of Calabash: 1987, c. 468, s. 1; Village of Pinehurst: 2014-85, s. 2(a).

§ 160A-225. Hearing on preliminary resolution; assessment resolution.

At the public hearing, the council shall hear all interested persons who appear with respect to any matter covered by the preliminary resolution. After the public hearing, the council may adopt a resolution directing that the project or portions thereof be undertaken. The assessment resolution shall describe the project in general terms (which may be by reference to projects described in the preliminary resolution) and shall set forth the following:

  1. The basis on which the special assessments shall be levied, together with a general description of the boundaries of the area benefited if the basis of assessment is either area or value added;
  2. The percentage of the cost to be specially assessed;
  3. The terms of payment, including the conditions under which assessments are to be held in abeyance, if any.

The percentage of cost to be assessed may not be different from the percentage proposed, and the projects authorized may not be greater in scope than the projects described in the preliminary resolution. If the council decides that a different percentage of the cost should be assessed than that proposed in the preliminary resolution, or that any project should be enlarged, it shall adopt and advertise a new preliminary resolution as herein provided.

History

(1915, c. 56, s. 6; C.S., s. 2708; 1971, c. 698, s. 1.)

§ 160A-226. Determination of costs.

When the project is complete, the council shall ascertain the total cost. In addition to construction costs, the cost of all necessary legal services, the amount of interest paid during construction, costs of rights-of-way, and the costs of publication of notices and resolutions may be included. The determination of the council as to the total cost of any project shall be conclusive.

History

(1915, c. 56, s. 9; C.S., s. 2711; 1971, c. 698, s. 1.)

Local Modification. - City of Durham: 1973, c. 413; city of Salisbury: 1973, c. 190.

CASE NOTES

Decisions as to Benefits to Property Are Final. - The decisions of the city council as to the method of assessment and the total cost of an improvement are final and conclusive and not subject to further review or challenge. This includes decisions as to whether and how much a property is benefitted by the improvements. In re Dunn, 73 N.C. App. 243, 326 S.E.2d 309, cert. denied, 313 N.C. 602, 332 S.E.2d 180 (1985).


§ 160A-226.1. Discounts authorized.

The council is authorized to establish a schedule of discounts to be applied to assessments paid before the expiration of 30 days from the date that notice is published of confirmation of the assessment roll pursuant to G.S. 160A-229. Such a schedule of discounts may be established even though it was not included among the terms of payment as specified in the preliminary assessment resolution or assessment resolution. The amount of any discount may not exceed thirty percent (30%).

History

(1983, c. 381, s. 4.)

CASE NOTES

Applied in In re Dunn, 73 N.C. App. 243, 326 S.E.2d 309 (1985).


§ 160A-227. Preliminary assessment roll; publication.

When the total cost of a project has been determined, the council shall have a preliminary assessment roll prepared. The preliminary roll shall contain a brief description of each lot, parcel, or tract of land assessed, the basis for the assessment, the amount assessed against each, the terms of payment, including the schedule of discounts, if such a schedule is to be established and the name of the owner of each parcel of land as far as this can be ascertained from the county tax records. A map of the project on which is shown each parcel assessed with the basis of its assessment, the amount assessed against it, and the name of the owner, as far as this can be ascertained from the county tax records, shall be a sufficient assessment roll.

After the preliminary assessment roll has been completed, it shall be filed in the city clerk's office where it shall be available for public inspection. A notice of the completion of the assessment roll, setting forth in general terms a description of the project, noting the availability of the assessment roll in the clerk's office for inspection, and stating the time and place for a hearing on the preliminary assessment roll, shall be published at least 10 days before the date set for the hearing on the preliminary assessment roll. The council shall also cause a notice of the hearing on the preliminary assessment roll to be mailed to the owners of property listed thereon at least 10 days before the hearing. The notice mailed to each property owner shall give notice of the time and place of the hearing, shall note the availability of the preliminary assessment roll for inspection in the city clerk's office and shall state the amount of the assessment against the property of the owner as shown on the preliminary assessment roll. The person designated to mail these notices shall file with the council a certificate showing they were mailed by first-class mail and on what date. Such a certificate shall be conclusive as to compliance with the mailing provisions of this section in the absence of fraud.

History

(1915, c. 56, s. 9; C.S., s. 2712; 1971, c. 698, s. 1; 1983, c. 381, s. 5.)

CASE NOTES

Editor's Note. - Most of the cases cited below were decided under prior similar statutory provisions.

Sufficiency of Description of Land. - Assessments made upon the lands of an owner adjoining a street improved by the authorities of a city or town would not be declared invalid on the grounds of the insufficiency of the description in the assessment roll at the suit of such property owners, when it was in substantial compliance with the statute. Vester v. Town of Nashville, 190 N.C. 265, 129 S.E. 593 (1925).

Map as Sufficient Description. - A map made by the city engineer and duly approved by the city commissioners was in sufficient compliance with the requirements of the statute. Holton v. Town of Mockville, 189 N.C. 144, 126 S.E. 326 (1925).

As to notice of filing under former statute, see Town of Wake Forest v. Holding, 206 N.C. 425, 174 S.E. 296 (1934).

Failure to Publish Notice of First Hearing Held Immaterial. - Where notice of hearing on the confirmation of an assessment roll was not published, but on the date set for the hearing the municipal board met and adopted the required resolution in amplified form and fixed the time and place for hearing of objections, and notice of the hearing on the second date set was duly published, on which date hearing was duly had, necessary corrections were made, and the assessment roll as corrected was duly approved and confirmed, the fact that notice of hearing on the first date set was not published as required was rendered immaterial. Town of Asheboro v. Miller, 220 N.C. 298, 17 S.E.2d 105 (1941).


§ 160A-228. Hearing on preliminary assessment roll; revision; confirmation; lien.

At the public hearing, which may be adjourned from time to time until all persons have had an opportunity to be heard, the council shall hear objections to the preliminary assessment roll from all interested persons who appear. Then or thereafter, the council shall annul, modify, or confirm the assessments, in whole or in part, either by confirming the preliminary assessments against any or all of the lots or parcels described in the preliminary assessment roll, or by canceling, increasing, or reducing them as may be proper in compliance with the basis of assessment. If any property is omitted from the preliminary assessment roll, the council may place it on the roll and levy the proper assessment. Whenever the council confirms assessments for any project, the city clerk shall enter in the minutes of the council the date, hour, and minute of confirmation. From and after the time of confirmation, the assessments shall be a lien on the property assessed of the same nature and to the same extent as the lien for county and city property taxes, according to the priorities set out in G.S. 160A-233(c). After the assessment roll is confirmed, a copy of it shall be delivered to the city tax collector for collection in the same manner as property taxes, except as herein provided.

History

(1915, c. 56, s. 9; C.S., s. 2713; 1971, c. 698, s. 1; 1973, c. 426, s. 34.)

CASE NOTES

Editor's Note. - The cases cited below were decided under prior similar statutory provisions.

Assessments as Liens on Property. - Assessments made upon property for street and sidewalk improvements by a town, in all respects under the authority conferred on the municipality by statute, to be paid in partial payments over a designated period of time, are to be regarded in the nature of a statutory mortgage when due and payable; they constitute liens on the property within the warranty clause against encumbrances contained in a deed, and are recoverable in grantee's action against grantor to the extent he has been required to pay them. Coble v. Dick, 194 N.C. 732, 140 S.E. 745 (1927).

Within Meaning of Warranty Against Encumbrances. - The lien for street assessments is an encumbrance within the meaning of the warranty clause against encumbrances contained in a deed. Coble v. Dick, 194 N.C. 732, 140 S.E. 745 (1927); City of Winston-Salem v. Powell Paving Co., 7 F. Supp. 424 (M.D.N.C. 1934).

Lien Amounts to Statutory Mortgage. - The lien given under former similar statute, when properly established, amounts to a statutory mortgage. City of Kinston v. Atlantic & N.C.R.R., 183 N.C. 14, 110 S.E. 645 (1922); Town of Saluda v. Polk County, 207 N.C. 180, 176 S.E. 298 (1934).

Lien Is Based on Theory of Special Benefit to Property. - The lien against property for street improvements is a lien in rem against the land itself, but is not strictly a tax lien and is based upon the theory of special benefit to the property itself. Town of Saluda v. Polk County, 207 N.C. 180, 176 S.E. 298 (1934).

Lien Not Enforceable Against Estate of Decedent. - An assessment made upon adjoining land for a street improvement by a town is a charge upon the land constituting a lien superior to all others, but is not enforceable against the personalty or other lands of the owner; and when the owner of land has been thus assessed, payable in installments, and he subsequently dies, such assessment is not a debt of the deceased payable by his personal representative, but a charge against the land itself. The provisions of G.S. 28A-19-6, as to the order of payment of debts of the deceased, have no application. Carawan v. Barnett, 197 N.C. 511, 149 S.E. 740 (1929). See also, City of Statesville v. Jenkins, 199 N.C. 159, 154 S.E. 15 (1930); City of High Point v. Brown, 206 N.C. 664, 175 S.E. 169 (1934); City of Winston-Salem v. Powell Paving Co., 7 F. Supp. 424 (M.D.N.C. 1934).

When Lien Attaches. - The lien for street assessments does not attach to land until confirmation of the assessments; thus, where such assessments are not confirmed by the governing body of the town until after the execution of a deed to the property, the subsequently attaching lien for the assessments does not violate the warranty and covenant in the deed, in the usual language, against encumbrances. Oliver v. Hecht, 207 N.C. 481, 177 S.E. 399 (1934).

Owner's Ratification as Sufficient Compliance with Statute. - Where property owner signs the petition and has notice that improvements are to be made and notice that the assessment roll giving the amount of the assessment against his property has been filed in the office of the city clerk, and he accepts the benefits and pays installments of the assessments without objection, he ratifies same and the statute is sufficiently complied with. Town of Wake Forest v. Holding, 206 N.C. 425, 174 S.E. 296 (1934).

Statute of Limitations. - Assessment against abutting lands for street improvements is made a lien on the land superior to all other liens and encumbrances, and the 10-year statute of limitation, not the three-year statute, is applicable thereto. City of High Point v. Clinard, 204 N.C. 149, 167 S.E. 690 (1933).

Cited in First Am. Fed. Sav. & Loan Ass'n v. Royall, 77 N.C. App. 131, 334 S.E.2d 792 (1985).


§ 160A-229. Publication of notice of confirmation of assessment roll.

After the expiration of 20 days from the confirmation of the assessment roll, the city tax collector shall publish once a notice that the assessment roll has been confirmed, and that assessments may be paid without interest at any time before the expiration of 30 days from the date that the notice is published, and that if they are not paid within this time, all installments thereof shall bear interest as provided in G.S. 160A-233. The notice shall also state the schedule of discounts, if one has been established, to be applied to assessments paid before the expiration date for payment of assessments without interest.

History

(1971, c. 698, s. 1; 1983, c. 381, s. 6.)

§ 160A-230. Appeal to General Court of Justice.

If the owner of, or any person interested in, any lot or parcel of land against which an assessment is made is dissatisfied with the amount of the assessment, he may, within 10 days after the confirmation of the assessment roll, file a notice of appeal to the appropriate division of the General Court of Justice. He shall then have 20 days after the confirmation of the assessment roll to serve on the council or the city clerk a statement of facts upon which the appeal is based. The appeal shall be tried like other actions at law.

History

(1915, c. 56, s. 9; C.S., s. 2714; 1971, c. 698, s. 1.)

CASE NOTES

Editor's Note. - Many of the cases cited below were decided under prior similar statutory provisions.

Right of Appeal Makes Statute Constitutional. - The right of appeal to the courts being provided in case of dissatisfaction by an owner of land abutting on a street assessed by the governing body of a municipality for street improvement, the objection that the owner's property is taken for a public use in contravention of the due process clause of the Constitution is untenable. Leak v. Town of Wadesboro, 186 N.C. 683, 121 S.E. 12 (1923).

Jurisdiction of Court is Derivative. - The jurisdiction of the court upon appeal from a levy of assessments for street improvements by the governing body of a town, as provided by statute, is entirely derivative, and where a town has no jurisdiction to condemn land the court on appeal likewise has no jurisdiction to do so. Atlantic Coast Line R.R. v. Town of Ahoskie, 207 N.C. 154, 176 S.E. 264 (1934).

Original jurisdiction to determine questions of fact involved in assessment proceedings is derived from the General Assembly and vested in the city council. Since a property owner's right of appeal from the city council to the courts is created and governed by statute, the jurisdiction acquired is derivative. On appeal to the courts, the owner of assessed property has no right to be heard there on the question of whether the lands are benefitted or not, but only on the validity of the assessment, its proper apportionment and other questions of law. In re Dunn, 73 N.C. App. 243, 326 S.E.2d 309, cert. denied, 313 N.C. 602, 332 S.E.2d 180 (1985).

Superior court may not determine de novo questions within the city council's original jurisdiction. In re Dunn, 73 N.C. App. 243, 326 S.E.2d 309, cert. denied, 313 N.C. 602, 332 S.E.2d 180 (1985).

While a petition is a prerequisite, it is not jurisdictional, and if the finding by the municipal board is erroneous, it should be corrected by appeal. Town of Asheboro v. Miller, 220 N.C. 298, 17 S.E.2d 105 (1941).

The language providing that appeals "shall be tried as other actions at law," serves merely to distinguish those actions from special proceedings for purposes of determining the applicable procedural rules. In re Dunn, 73 N.C. App. 243, 326 S.E.2d 309, cert. denied, 313 N.C. 602, 332 S.E.2d 180 (1985).

Appeal Not Limited to Amount of Assessment. - Former similar statute did not limit the property owner's appeal from an assessment for public improvements solely to the amount to be charged against his land. Smith v. City of Rockingham, 268 N.C. 697, 151 S.E.2d 568 (1966).

Existence of Street as Issue. - Under the provisions of former similar statute, it was necessary that there be an existing street in order for a valid assessment for improvements to be laid on the property of abutting owners, and this could be made an issue in an appeal, with the adjoining owner introducing his evidence to show to the contrary. Atlantic Coast Line R.R. v. Town of Ahoskie, 192 N.C. 258, 134 S.E. 653 (1926).

Collateral Attack in Action to Enforce Lien Precluded. - In an action to enforce a lien for public improvements, a defendant who had notice and ample opportunity to be heard and to appeal from the order confirming the assessment roll cannot impeach the validity of the ordinance or of the assessment for any alleged irregularities which are not jurisdictional. Town of Asheboro v. Miller, 220 N.C. 298, 17 S.E.2d 105 (1941).

Injunctive Relief Not Available After Failure to Appeal. - The remedy of abutting owners assessed for street improvements is given by the provisions for the right of appeal, and when no appeal has been taken and the work has been completed, injunctive relief against the collection of the assessments by the city will not lie. Jones v. City of Durham, 197 N.C. 127, 147 S.E. 824 (1929).

Remedy is to Object to Local Assessment. - The owner of land abutting on a street which the municipality proposes to improve has his remedy in objecting to the local assessment on his property because of the insufficiency of the petition, and he may not enjoin the issuance of bonds for this necessary expense on that ground when he has failed to pursue his statutory remedy. Brown v. Town of Hillsboro, 185 N.C. 368, 117 S.E. 41 (1923).

Untimely Application for Writ of Certiorari. - An abutting property owner who failed to appeal from a final order of the board of aldermen affirming the assessment roll was not entitled to a writ of certiorari where application for the writ was filed more than eight months after his time for appeal had expired. Sanford v. Southern Oil Co., 244 N.C. 388, 93 S.E.2d 560 (1956).

Estoppel to Assert Errors in Assessments. - Where the property owner failed to object and avail himself of the specific remedy for review and correction of the assessment, but made payments on the assessment, he is estopped to show error in the assessment. Town of Wake Forest v. Gulley, 213 N.C. 494, 196 S.E. 845 (1938).


§ 160A-231. Reassessment.

The council shall have the power, when in its judgment any irregularity, omission, error or lack of jurisdiction in any of the proceedings related thereto, has occurred, to set aside the whole of any special assessment made by it and thereupon to make a reassessment. In that case, all additional interest paid, or to be paid, as a result of the delay in confirming the assessment shall be included as a part of the project cost. The proceeding shall, as far as practicable, in all respects take place as it had with the original assessments, and the reassessment shall have the same force as if it had originally been properly made.

History

(1915, c. 56, s. 9; C.S., s. 2715; 1971, c. 698, s. 1.)

CASE NOTES

Editor's Note. - The cases cited below were decided under prior similar statutory provisions.

Reduction of Assessment Held Unavailable on Grounds Urged. - Where the board of aldermen granted a petition for street improvements requesting the assessment of a larger proportion of the costs of the improvements against the lots of land abutting directly thereon than was otherwise required by statute, after the confirmation of the assessment roll a subsequent board of aldermen was without power to grant a petition of the abutting landowners for a reduction of the assessment upon the ground alone that the amount of the assessments exceeded that which they had originally anticipated, and a suit by other taxpayers of the town to enjoin the granting of such petition was proper. McClester v. Town of China Grove, 196 N.C. 301, 145 S.E. 562 (1928).

Extension resolution providing a new series of installment payments did not invalidate lien of a municipality for an assessment for public improvements, where the sums of the new installments in the aggregate exceeded the amount actually due at the time of the extension. Differences could be adjusted. City of Salisbury v. Arey, 224 N.C. 260, 29 S.E.2d 894 (1944).


§ 160A-232. Payment of assessments in cash or by installments.

The owners of assessed property shall have the option, within 30 days after the publication of the notice that the assessment roll has been confirmed, of paying the assessment either in cash or in not more than 10 annual installments, as may have been determined by the council in the resolution directing the project giving rise to the assessment to be undertaken. With respect to payment by installment, the council may provide

  1. That the first installment with interest shall become due and payable on the date when property taxes are due and payable, and one subsequent installment and interest shall be due and payable on the same date in each successive year until the assessment is paid in full, or
  2. That the first installment with interest shall become due and payable 60 days after the date that the assessment roll is confirmed, and one subsequent installment and interest shall be due and payable on the same day of the month in each successive year until the assessment is paid in full.

History

(1915, c. 56, s. 10; C.S., s. 2716; 1971, c. 698, s. 1.)

Local Modification. - City of Fayetteville: 1995 (Reg. Sess., 1996), c. 718, s. 1; Village of Pinehurst: 2003-259, s. 2(a) (applicable only to assessments for repair and rehabilitation of a dam in the village).

§ 160A-233. Enforcement of assessments; interests; foreclosure; limitations.

  1. Any portion of an assessment that is not paid within 30 days after publication of the notice that the assessment roll has been confirmed shall bear interest until paid at a rate to be fixed in the assessment resolution but not more than eight percent (8%) per annum.
  2. If any installment of an assessment is not paid on or before the due date, all of the installments remaining unpaid shall immediately become due and payable, unless the council waives acceleration. The council may waive acceleration and permit the property owner to pay all installments in arrears together with interest due thereon and the cost to the city of attempting to obtain payment. If this is done, the remaining installments shall be reinstated so that they fall due as if there had been no default. Waiver of acceleration and reinstatement of future installments may be done at any time before foreclosure proceedings have been instituted.
  3. Assessment liens may be foreclosed under any procedure prescribed by law for the foreclosure of property tax liens, except that lien sales and lien sale certificates shall not be required, and foreclosure may be begun at any time after 30 days after the due date. The city shall not be entitled to a deficiency judgment in an action to foreclose an assessment lien. The lien of special assessments shall be inferior to all prior and subsequent liens for State, local, and federal taxes, and superior to all other liens.
  4. No city may maintain an action or proceeding to enforce any remedy for the foreclosure of special assessment liens unless the action or proceeding is begun within 10 years from the date that the assessment or the earliest installment thereof included in the action or proceeding became due. Acceleration of installments under subsection (b) shall not have the effect of shortening the time within which foreclosure may be begun, but in that event the statute of limitations shall continue to run as to each installment as if acceleration had not occurred.

History

(1915, c. 56, s. 11; C.S., s. 2717; 1923, c. 87; 1929, c. 331, s. 1; 1971, c. 698, s. 1.)

Local Modification. - Forsyth: 1977, c. 203; 1993, c. 380, s. 1; city of Winston-Salem: 1993, c. 380, s. 1; town of Carrboro: 2007-266, s. 1; town of Madison: 1985, c. 91.

Legal Periodicals. - For comment, "Offer to Purchase and Contract: Buyer Beware," see 8 Campbell L. Rev. 473 (1986).

CASE NOTES

Editor's Note. - Many of the cases cited below were decided under former similar statutory provisions.

Passing of Installment Option to Municipality. - Provisions giving property owner 30 days in which to pay assessments for local improvements in cash without interest or the election to pay the same in installments are for the benefit of the property owner, and when exercised, become mandatory upon the municipality; but when property owner remains silent and neither pays in cash nor elects to pay in installments, the option passes to the municipality to foreclose or to collect in installments. City of Salisbury v. Arey, 224 N.C. 260, 29 S.E.2d 894 (1944).

The interest rate on street assessments is fixed by statute, and the courts are without authority at law or in equity to prescribe a lesser interest rate. Zebulon v. Dawson, 216 N.C. 520, 5 S.E.2d 535 (1939).

Right to Accelerate. - Provision that upon failure to pay any installment when due all installments remaining unpaid should at once become due and payable gives the municipality the optional right to declare all installments due and payable upon default; absent its declaration to invoke the acceleration provision, the statute of limitations will not begin to run against unpaid installments not then due. Town of Farmville v. Paylor, 208 N.C. 106, 179 S.E. 459 (1935). See also, City of Salisbury v. Arey, 224 N.C. 260, 29 S.E.2d 894 (1944).

Judgment for Installments. - Where the owner of land abutting on the street has refused to pay the assessments lawfully made on him for street improvements, a judgment allowing him to pay by installments may be entered. City of Durham v. Durham Pub. Serv. Co., 182 N.C. 333, 109 S.E. 40 (1921), aff'd, 261 U.S. 149, 43 S. Ct. 290, 67 L. Ed. 580 (1923).

As to enforcement of lien by decree of sale, see City of Kinston v. Atlantic & N.C.R.R., 183 N.C. 14, 110 S.E. 645 (1922); Town of Saluda v. Polk County, 207 N.C. 180, 176 S.E. 298 (1934).

Attorneys' Fee. - Construed together, subsection (c) of this section and G.S. 105-374(i) provide for an award of one reasonable attorneys' fee, in the court's discretion, in a foreclosure of an assessment lien by action in the nature of an action to foreclose a mortgage. Guilford County v. Boyan, 42 N.C. App. 627, 257 S.E.2d 463 (1979), cert. denied, 303 N.C. 311, 278 S.E.2d 252 (1981).

Construction of Subsection (d) as to Limitations of Actions. - The inherent illogic of the literal meaning of the first sentence of subsection (d), the sentence's context, and the statute's history all show that the legislature did not intend to bar an action for installments of assessments falling due within the 10-year limitation period, even when installments which became due more than 10 years before the institution of the action were sought to be included in the action. Guilford County v. Boyan, 42 N.C. App. 627, 257 S.E.2d 463 (1979), cert. denied, 303 N.C. 311, 278 S.E.2d 252 (1981).

The second sentence of subsection (d) makes plain that the legislature intended the statute of limitations to run anew from the due date of each individual installment. Guilford County v. Boyan, 42 N.C. App. 627, 257 S.E.2d 463 (1979), cert. denied, 303 N.C. 311, 278 S.E.2d 252 (1981).

As to running of statute of limitations under former provisions, see City of Charlotte v. Kavanaugh, 221 N.C. 259, 20 S.E.2d 97 (1942); City of Raleigh v. Mechanics & Farmers Bank, 223 N.C. 286, 26 S.E.2d 573 (1943).

Applied in City of Greensboro v. Harris, 27 N.C. App. 585, 219 S.E.2d 537 (1975).

Cited in City of Durham v. Herndon, 61 N.C. App. 275, 300 S.E.2d 460 (1983); Da Da Mai v. Carolina Holdings, Inc., 205 N.C. App. 659, 696 S.E.2d 769 (2010), dismissed and review denied 705 S.E.2d 377, 2010 N.C. LEXIS 1055 (2010).


§ 160A-234. Assessments on property held by tenancy for life or years.

  1. Assessments upon real property in the possession or enjoyment of a tenant for life, or a tenant for a term of years, shall be paid by the holder of the remainder or reversion, as the case may be.
  2. Repealed by Session Laws 1979, c. 107, s. 12.

History

(1911, c. 7, ss. 1, 2, 3; C.S., ss. 2718, 2719, 2720; 1971, c. 698, s. 1; 1979, c. 107, s. 12; 2003-232, s. 6.)

Editor's Note. - Subsection (a), as amended by Session Laws 2003-232, s. 6, effective January 1, 2004, is applicable to every trust or decedent's estate existing on that date or coming into existence after that date, except as otherwise expressly provided in the will or terms of the trust or in the provisions of Chapter 37A of the General Statutes, as enacted in Session Laws 2003-232.

CASE NOTES

Assessments Not Preference Against Estate of Deceased Life Tenant. - Since street and sidewalk assessments constitute a lien against the property not collectible out of other properties belonging to the owner, and since a life tenant is not liable for the whole assessment, being entitled to have it proportioned, upon the death of a life tenant such assessments made prior to his death do not constitute a preference against his estate payable as a tax assessed on the estate prior to his death. Rigsbee v. Brogden, 209 N.C. 510, 184 S.E. 24 (1936), decided under former similar statutory provisions.


§ 160A-235. Lien in favor of a cotenant or joint owner paying special assessments.

Any one of several tenants in common, or joint tenants, or copartners shall have the right to pay the whole or any part of any special assessment levied against property held jointly or in common, and all sums by him so paid in excess of his share of the assessment, interests, costs, and amounts required for redemption, shall constitute a lien upon the shares of his cotenants or associates, which he may enforce in proceedings for partition, actual or by sale, or in any other appropriate judicial proceeding. The lien herein provided for shall not be effective against an innocent purchaser for value unless and until notice thereof is filed in the office of the clerk of superior court in the county in which the land lies and indexed and docketed in the same manner as other liens required by law to be filed in the clerk's office.

History

(1935, c. 174; 1971, c. 698, s. 1.)

§ 160A-236. Apportionment of assessments.

When special assessments are made against property which has been or is about to be subdivided, the council may, with the consent of the owner of the property, apportion the assessment among the lots or tracts within the subdivision, or release certain lots or tracts from the assessments if, in the opinion of the council, some of the lots or tracts in the subdivision are not benefited by the project. Upon an apportionment, each of the lots and tracts in the subdivision shall be released from the lien of the original assessment, and the portions of the original assessment assessed against each lot or tract shall have the same force and effect as the original assessment as to the particular lot or tract assessed. At the time of making an apportionment under this section, the council shall enter on its minutes a statement to the effect that the apportionment is made with the consent of the owners of the property affected, and this entry shall be conclusive in the absence of fraud. Reassessments made under this section may include past due installments of principal and interest as well as installments not then due, and any installments not then due shall fall due at the same dates as they would have under the original assessment. The council may delegate authority to make apportionment of assessments to the chief financial officer, but apportionments shall in all cases be reported to the council at its next regular meeting and entered in the minutes.

History

(1929, c. 331, s. 1; 1935, c. 125; 1971, c. 698, s. 1.)

§ 160A-237. Authority to hold water and sewer assessments in abeyance.

The assessment resolution may provide that assessments levied under this Article for water or sewer improvements be held in abeyance without interest until improvements on the assessed property are actually connected to the water or sewer system for which the assessment was levied, or a date certain not more than 10 years from the date of confirmation of the assessment roll, whichever event first occurs. Upon termination of the period of abeyance, the assessment shall be paid in accordance with the terms set out in the assessment resolution. If assessments are to be held in abeyance, the assessment resolution shall classify the property assessed according to general land use, location with respect to the water or sewer system, or other relevant factors, and shall provide that the period of abeyance shall be the same for all assessed property in the same class.

All statutes of limitations are suspended during the time that any assessment is held in abeyance without interest.

History

(1973, c. 426, s. 35.)

Local Modification. - City of Belmont: 1995, c. 341, s. 1; 2017-48, s. 1; Cities of Gastonia, and Mount Holly: 1995, c. 341, s. 1; town of Stanley: 1995, c. 341, s. 1.

CASE NOTES

Applied in Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820, cert. denied and appeal dismissed, 303 N.C. 710, 283 S.E.2d 136 (1981).


§ 160A-238. Authority to make assessments for beach erosion control and flood and hurricane protection works.

A city may make special assessments, according to the procedures of this Article, against benefited property within the city for all or part of the costs of acquiring, constructing, reconstructing, extending, or otherwise building or improving beach erosion control or flood and hurricane protection works. Assessments for these projects may be made on the basis of:

  1. The frontage abutting on the project, at an equal rate per foot of frontage; or
  2. The frontage abutting on a beach or shoreline protected or benefited by the project, at an equal rate per foot of frontage; or
  3. The area of land benefited by the project, at an equal rate per unit of area; or
  4. The valuation of land benefited by the project, being the value of the land without improvements as shown on the tax records of the county, at an equal rate per dollar of valuation; or
  5. A combination of two or more of these bases.

Whenever the basis selected for assessment is either area or valuation, the council shall provide for the laying out of one or more benefit zones according to the distance from the shoreline, the distance from the project, the elevation of the land, or other relevant factors. If more than one benefit zone is established, the council shall establish differing rates of assessment to apply uniformly throughout each benefit zone.

History

(1973, c. 822, s. 7.)

Local Modification. - Towns of Holden Beach: 1979, c. 440; 1981, c. 318; 1983, c. 490; Oak Island: 2008-115, s. 1; Ocean Isle Beach: 1979, c. 440; 1981, c. 318; Southern Shores: 1985, c. 725, as amended by 2011-108, s. 3; Sunset Beach: 1985, c. 725.

§ 160A-239: Reserved for future codification purposes.

ARTICLE 10A. Special Assessments for Critical Infrastructure Needs.

(See note for expiration of Article)

Sec.

§ 160A-239.1. (See note for expiration of Article) Purpose; sunset.

  1. Purpose. - This Article enables cities that face increased demands for infrastructure improvements as a result of rapid growth and development to impose special assessments as provided under this Article on benefited property and to use the resulting revenues as provided in this Article. This Article supplements the authority cities have in Article 10 of this Chapter. The provisions of Article 10 of this Chapter apply to this Article, to the extent they do not conflict with this Article.
  2. Sunset. - This Article expires July 1, 2025, for projects that have not been approved under a final assessment resolution. The expiration does not affect the validity of assessments imposed or to be imposed or bonds issued or authorized or to be issued or authorized under the provisions of this Article if a final assessment resolution has been adopted prior to the effective date of the expiration.

History

(2008-165, s. 3; 2013-371, ss. 2(a), 3; 2015-121, s. 2; 2017-40, s. 2; 2020-58, s. 7.2.)

Article has an Expiration Date. - For expiration of Article 10A, see G.S. 160A-239.1(b).

Editor's Note. - Session Laws 2008-165, s. 5, as originally enacted, provided: "This act is effective when it becomes law [August 3, 2008]. Sections 2 and 3 of this act expire July 1, 2013. The expiration does not affect the validity of assessments imposed or bonds issued or authorized under the provisions of this act prior to the effective date of the expiration." However, Session Laws 2013-371, s. 3 deleted "Sections 2 and 3 of this act expire July 1, 2013. The expiration does not affect the validity of assessments imposed or bonds issued or authorized under the provisions of this act prior to the effective date of the expiration," leaving the enactment effective when it became law.

Session Laws 2008-165, s. 4, is a severability clause.

Session Laws 2010-129, s. 7, as amended by Session Laws 2011-205, s. 1, provides: "A local government that imposed an assessment prior to 2012 to finance a capital project that has been assumed by another unit of local government may return unused assessments to the person that paid the assessment."

Session Laws 2015-121, s. 5, made the amendment to this section by Session Laws 2015-121, s. 2, applicable to assessments made on or after July 1, 2015.

Effect of Amendments. - Session Laws 2013-371, s. 2(a), effective June 30, 2013, added "sunset" in the section heading; designated the existing provisions as subsection (a) and added the subsection heading; and added subsection (b). For applicability, see Editor's note.

Session Laws 2015-121, s. 2, effective June 30, 2015, substituted "expires July 1, 2020" for "expires July 1, 2015" in the first sentence of subsection (b). For applicability, see editor's note.

Session Laws 2017-40, s. 2, effective June 21, 2017, in subsection (a), substituted "impose special assessments as provided" for "issue revenue bonds payable from special assessments imposed," and added "and to use the resulting revenues as provided in this Article" at the end of the first sentence; in subsection (b), added "for projects that have not been approved under a final assessment resolution" at the end of the first sentence, and rewrote the second sentence.

Session Laws 2020-58, s. 7.2, effective June 30, 2020, substituted "July 1, 2025" for "July 1, 2020" in the first sentence of subsection (b).

§ 160A-239.2. (See note for expiration of Article) Assessments.

  1. Projects. - The council of a city may make special assessments as provided in this Article against benefited property within the city for the purpose of assisting in arranging for payment of the capital costs of projects (i) for which project development financing debt instruments may be issued under G.S. 159-103 or (ii) for the purpose of the installation of distributed generation renewable energy sources or energy efficiency improvements that are permanently fixed to residential, commercial, industrial, or other real property.
  2. Costs. - The city council must determine a project's total estimated cost and the amount of costs to be paid from assessments. In addition to the costs allowed under G.S. 160A-226, the costs may include any expenses allowed under G.S. 159-84 and expenses for the administration of the assessments. A preliminary assessment roll may be prepared before the costs are incurred based on the estimated cost of the project.
  3. Method. - The city council must establish an assessment method that will, in the city council's judgment, accurately assess each lot or parcel of land subject to the assessments according to the benefits conferred upon it by the project for which the assessment is made. In addition to other bases upon which assessments may be made under G.S. 160A-218, the council may select any other method designed to allocate the costs in accordance with benefits conferred. In doing so, the council may provide that the benefits conferred are measured on the basis of use being made on the lot or parcel of land and provide for adjustments of assessments upon a change in use, provided that the total amount of all assessments is sufficient to pay the portion of the costs of the project to be funded from assessments after the adjustments have been made.

History

(2008-165, s. 3; 2008-187, s. 47.5(b); 2009-525, s. 2(a); 2013-371, ss. 2(b), 3; 2017-40, s. 2.)

Article has an Expiration Date. - For expiration of Article 10A, see G.S. 160A-239.1(b).

Editor's Note. - Session Laws 2008-165, s. 5, as originally enacted, provided: "This act is effective when it becomes law [August 3, 2008]. Sections 2 and 3 of this act expire July 1, 2013. The expiration does not affect the validity of assessments imposed or bonds issued or authorized under the provisions of this act prior to the effective date of the expiration." However, Session Laws 2013-371, s. 3 deleted "Sections 2 and 3 of this act expire July 1, 2013. The expiration does not affect the validity of assessments imposed or bonds issued or authorized under the provisions of this act prior to the effective date of the expiration," leaving the enactment effective when it became law.

Session Laws 2008-187, s. 47.5(b), amended G.S. 160A-239.2, as enacted by House Bill 1770 of the 2007 Regular Session of the General Assembly, contingent on that act becoming law. House Bill 1770 was enacted as Session Laws 2008-165.

Effect of Amendments. - Session Laws 2008-187, s. 47.5(b), effective August 7, 2008, inserted "as provided in this Article" in the introductory paragraph of subsection (a); rewrote the second sentence of subsection (b), which formerly read: "An assessment may be imposed before the costs are incurred, based on the estimated cost"; and substituted "G.S. 160A-218" for "G.S. 153A-186" in subsection (c).

Session Laws 2009-525, s. 2(a), effective August 26, 2009, rewrote subsection (a).

Session Laws 2013-371, s. 2(b), effective June 30, 2013, in subsection (c), added "subject to the assessments" in the first sentence, substituted "other" for "the" in the beginning of the second sentence, and added the third sentence. For applicability, see Editor's note.

Session Laws 2017-40, s. 2, effective June 21, 2017, in subsection (a), substituted "assisting in the arranging for payment of" for "financing," inserted clause (i) and (ii) designations, deleted "financing" preceding "the installation of distributed generation"; in subsection (b), added "and the amount of costs to be paid from assessments" at the end of the first sentence, in the second sentence, substituted "G.S. 160A-226" for "G.S. 153A-193," and added "and expenses for the administration of the assessments" at the end; in subsection (c), substituted "will, in the city council's judgement," for "will most" in the first sentence, and substituted "portion of the costs of the project to be funded from assessments" for "costs of the project" in the last sentence.


§ 160A-239.3. (See note for expiration of Article) Petition required.

  1. Petition. - The city council may not impose a special assessment under this Article unless it receives a petition for the project to be financed by the assessment signed by (i) at least a majority of the owners of real property to be assessed and (ii) owners who represent at least sixty-six percent (66%) of the assessed value of all real property to be assessed. For purposes of determining whether the petition has been signed by a majority of owners, an owner who holds title to a parcel of real property alone shall be treated as having one vote each, and an owner who shares title to a parcel of real property with one or more other owners shall have a vote equal to one vote multiplied by a fraction, the numerator of which is one, and the denominator of which is the total number of owners of the parcel. For purposes of determining whether the assessed value represented by those signing the petition constitutes at least sixty-six percent (66%) of the assessed value of all real property to be assessed, an owner who holds title to a parcel of real property alone shall have the full assessed value of the parcel included in the calculation, and an owner who shares title to a parcel of real property with one or more other owners shall have their proportionate share of the full assessed value of the parcel included in the calculation. The petition must include the following:
    1. A statement of the project proposed to be financed in whole or in part by the imposition of an assessment under this Article.
    2. An estimate of the cost of the project.
    3. An estimate of the portion of the cost of the project to be assessed.
  2. Preliminary Assessment Resolution. - Upon the receipt of a petition as provided for under subsection (a) of this section, the city council shall adopt a preliminary assessment resolution containing all of the following:
    1. A statement of intent to undertake the project.
    2. A general description of the nature and location of the project.
    3. An estimate of the total cost of the project.
    4. A statement as to the proposed terms of payment of the assessment.
    5. An order setting a time and place for a public hearing on all matters covered by the preliminary assessment resolution. The hearing shall be not earlier than three weeks and not later than 10 weeks from the day on which the preliminary resolution is adopted.
  3. Hearing on Preliminary Assessment Resolution; Assessment Resolution. - At the public hearing, the city council shall hear all interested persons who appear with respect to any matter covered by the preliminary assessment resolution. Not earlier than 10 days after the public hearing, the city council may adopt a final assessment resolution directing that the project or portions thereof be undertaken. The final assessment resolution shall include all of the information provided for in subdivisions (1) through (4) of subsection (a1) of this section.
  4. Petition Withdrawn. - The city council must wait at least 10 days after the public hearing on the preliminary assessment resolution before adopting a final assessment resolution. A petition submitted under subsection (a) of this section may be withdrawn if notice of petition withdrawal is given in writing to the council signed by at least a majority of the owners who signed the petition submitted under subsection (a) of this section representing at least fifty percent (50%) of the assessed value of all real property to be assessed. The council may not adopt a final assessment resolution if it receives a timely notice of petition withdrawal.
  5. Validity of Assessment. - No right of action or defense asserting the invalidity of an assessment on grounds that the city did not comply with this section may be asserted except in an action or proceeding begun within 90 days after publication of the notice of adoption of the preliminary assessment resolution.

History

(2008-165, s. 3; 2013-371, ss. 2(c), 3; 2017-40, s. 2.)

Article has an Expiration Date. - For expiration of Article 10A, see G.S. 160A-239.1(b).

Editor's Note. - Session Laws 2008-165, s. 5, as originally enacted, provided: "This act is effective when it becomes law [August 3, 2008]. Sections 2 and 3 of this act expire July 1, 2013. The expiration does not affect the validity of assessments imposed or bonds issued or authorized under the provisions of this act prior to the effective date of the expiration." However, Session Laws 2013-371, s. 3 deleted "Sections 2 and 3 of this act expire July 1, 2013. The expiration does not affect the validity of assessments imposed or bonds issued or authorized under the provisions of this act prior to the effective date of the expiration," leaving the enactment effective when it became law.

Effect of Amendments. - Session Laws 2013-371, s. 2(c), effective June 30, 2013, in subsection (a), in the first sentence, inserted "(i)", and inserted "and (ii) owners", and deleted "must" preceding "represent" in the first sentence, and added the second and third sentences. For applicability, see Editor's note.

Session Laws 2017-40, s. 2, effective June 21, 2017, added subsections (a1) and (a2).

§ 160A-239.4. (See note for expiration of Article) Funding a project for which an assessment is imposed.

  1. Funding Sources. - In addition to funding from sources otherwise authorized for use by a city in connection with a project, a city council may provide for the payment of all or a portion of the cost of a project for which an assessment may be imposed under this Article from one or more funding sources listed in this subsection. The assessment resolution must include the estimated cost of the project to be funded from assessments and the amount of the cost estimated to be derived from each respective funding source.
    1. Revenue bonds issued under G.S. 160A-239.6.
    2. Project development financing debt instruments issued under the North Carolina Project Development Financing Act, Article 6 of Chapter 159 of the General Statutes.
    3. General obligation bonds issued under the Local Government Bond Act, Article 4 of Chapter 159 of the General Statutes.
    4. General revenues.
    5. Funds from private parties.
  2. Assessments Pledged. - An assessment imposed under this Article may be pledged to secure revenue bonds under G.S. 160A-239.6 or as additional security for a project development financing debt instrument under G.S. 159-111. If an assessment imposed under this Article is pledged to secure financing, the city council must covenant to enforce the payment of the assessments.
  3. Reimbursement From Assessments. - If a city contracts with a private party to construct a project on behalf of the city as provided in G.S. 160A-239.7, the city council may agree to impose one or more assessments pursuant to this Article in order to reimburse the private party for actual costs incurred by the private party related to the project and documented to the city. The city council shall not be obligated to reimburse a private party any amount in excess of assessment revenues actually collected less the city's related administrative costs.
  4. Performance Bond. - A subdivision control ordinance adopted by a city under G.S. 160A-372 providing for a performance bond or guarantee to assure successful completion of required improvements will apply to a project funded in whole or in part by an assessment under this Article.

A reimbursement shall not include reimbursement to the private party for any interest costs, whether actual or imputed, of the funds invested by the private party in the project except in the event that an abeyance in the collection of assessments is permitted pursuant to G.S. 160A-239.5. If an abeyance in the collection of assessments is permitted, the amount to be reimbursed may include an inflationary factor applicable for the period of the abeyance.

History

(2008-165, s. 3; 2009-525, s. 2(b); 2010-95, s. 40; 2013-371, s. 3; 2017-40, s. 2.)

Article has an Expiration Date. - For expiration of Article 10A, see G.S. 160A-239.1(b).

Editor's Note. - Session Laws 2008-165, s. 5, as originally enacted, provided: "This act is effective when it becomes law [August 3, 2008]. Sections 2 and 3 of this act expire July 1, 2013. The expiration does not affect the validity of assessments imposed or bonds issued or authorized under the provisions of this act prior to the effective date of the expiration." However, Session Laws 2013-371, s. 3 deleted "Sections 2 and 3 of this act expire July 1, 2013. The expiration does not affect the validity of assessments imposed or bonds issued or authorized under the provisions of this act prior to the effective date of the expiration," leaving the enactment effective when it became law.

Session Laws 2008-187, s. 47.5(b), amended G.S. 160A-239.2, as enacted by House Bill 1770 of the 2007 Regular Session of the General Assembly, contingent on that act becoming law. House Bill 1770 was enacted as Session Laws 2008-165.

Effect of Amendments. - Session Laws 2009-525, s. 2(b), effective August 26, 2009, rewrote the section.

Session Laws 2010-95, s. 40, effective July 17, 2010, substituted "G.S. 160A-239.6" for "G.S. 153A-210.6" in subsection (b).

Session Laws 2017-40, s. 2, effective June 21, 2017, substituted "Funding" for "Financing" in the section heading; rewrote the introductory paragraph in subsection (a); and added subdivision (a)(5) and subsections (c) and (d).

§ 160A-239.5. (See note for expiration of Article) Payment of assessments by installments.

  1. An assessment imposed under this Article is payable in annual installments. The city council must set the number of annual installments, which may not be more than 25. The installments are due on the date that real property taxes are due.
  2. The city council may provide for the abeyance of assessments as authorized in Article 10 of this Chapter. The abeyance may apply to any assessed property. Annual installments shall be deferred until the period of abeyance ends. The assessment shall be payable on the first annual installment payment date after the period of abeyance ends.

History

(2008-165, s. 3; 2013-371, s. 3; 2015-121, s. 4; 2017-40, s. 2.)

Article has an Expiration Date. - For expiration of Article 10A, see G.S. 160A-239.1(b).

Editor's Note. - Session Laws 2008-165, s. 5, as originally enacted, provided: "This act is effective when it becomes law [August 3, 2008]. Sections 2 and 3 of this act expire July 1, 2013. The expiration does not affect the validity of assessments imposed or bonds issued or authorized under the provisions of this act prior to the effective date of the expiration." However, Session Laws 2013-371, s. 3 deleted "Sections 2 and 3 of this act expire July 1, 2013. The expiration does not affect the validity of assessments imposed or bonds issued or authorized under the provisions of this act prior to the effective date of the expiration," leaving the enactment effective when it became law.

Session Laws 2015-121, s. 5, made the amendment to this section by Session Laws 2015-121, s. 4, applicable to assessments made on or after July 1, 2015.

Effect of Amendments. - Session Laws 2015-121, s. 4, effective June 30, 2015, substituted "not be more than 25" for "not be more than 30" in the second sentence. For applicability, see editor's note.

Session Laws 2017-40, s. 2, effective June 21, 2017, redesignated the former introductory text as subsection (a) and added subsection (b).

§ 160A-239.6. (See note for expiration of Article) Revenue bonds.

  1. Authorization. - A city council that imposes an assessment under this Article may issue revenue bonds under Article 5 of Chapter 159 of the General Statutes to finance the project for which the assessment is imposed and use the proceeds of the assessment imposed as revenues pertaining to the project.
  2. Modifications. - This Article specifically modifies the authority of a city to issue revenue bonds under Article 5 of Chapter 159 of the General Statutes by extending the authority in that Article to include a project for which an assessment may be imposed under this Article. In applying the provisions of Article 5, the following definitions apply:
    1. Revenue bond project. - Defined in G.S. 159-81(3). The term includes projects for which an assessment is imposed under this Article.
    2. Revenues. - Defined in G.S. 159-81(4). The term includes assessments imposed under this Article to finance a project allowed under this Article.

History

(2008-165, s. 3; 2013-371, s. 3.)

Article has an Expiration Date. - For expiration of Article 10A, see G.S. 160A-239.1(b).

Editor's Note. - Session Laws 2008-165, s. 5, as originally enacted, provided: "This act is effective when it becomes law [August 3, 2008]. Sections 2 and 3 of this act expire July 1, 2013. The expiration does not affect the validity of assessments imposed or bonds issued or authorized under the provisions of this act prior to the effective date of the expiration." However, Session Laws 2013-371, s. 3 deleted "Sections 2 and 3 of this act expire July 1, 2013. The expiration does not affect the validity of assessments imposed or bonds issued or authorized under the provisions of this act prior to the effective date of the expiration," leaving the enactment effective when it became law.

§ 160A-239.7. (See note for expiration of Article) Project implementation.

A city may act directly, through one or more contracts with other public agencies, through one or more contracts with private agencies, or by any combination thereof to implement the project funded in whole or in part by the imposition of an assessment imposed under this Article. Initial funding for the project may be provided by the public or private agencies. If no more than twenty-five percent (25%) of the estimated cost of a project is to be funded from the proceeds of general obligation bonds or general revenue, excluding assessments imposed pursuant to this Article, a private agency that enters into a contract with a city for the implementation of all or part of the project is subject to the provisions of Article 8 of Chapter 143 of the General Statutes only to the extent specified in the contract. In the event any contract relating to construction a substantial portion of which is to be performed on publicly owned property is excluded from the provisions of Article 8 of Chapter 143, the city or any trustee or fiduciary responsible for disbursing funds shall obtain certification acceptable to the city in the amount due for work done or materials supplied for which payment will be paid from such disbursement. If the city or any trustee or fiduciary responsible for disbursing funds receives notice of a claim from any person who would be entitled to a mechanic's or materialman's lien but for the fact that the claim relates to work performed on or supplies provided to publicly owned property, then either no disbursement of funds may be made until the city, trustee, or fiduciary receives satisfactory proof of resolution of the claim or funds in the amount of the claim shall be set aside for payment thereof upon resolution of the claim.

History

(2009-525, s. 2(c); 2013-371, s. 3; 2017-40, s. 2.)

Article has an Expiration Date. - For expiration of Article 10A, see G.S. 160A-239.1(b).

Editor's Note. - Session Laws 2008-165, s. 5, as originally enacted, provided: "This act is effective when it becomes law [August 3, 2008]. Sections 2 and 3 of this act expire July 1, 2013. The expiration does not affect the validity of assessments imposed or bonds issued or authorized under the provisions of this act prior to the effective date of the expiration." However, Session Laws 2013-371, s. 3 deleted "Sections 2 and 3 of this act expire July 1, 2013. The expiration does not affect the validity of assessments imposed or bonds issued or authorized under the provisions of this act prior to the effective date of the expiration," leaving the enactment effective when it became law.

Effect of Amendments. - Session Laws 2017-40, s. 2, effective June 21, 2017, substituted "funded" for "financed" in the first sentence; inserted the second sentence; and inserted "excluding assessments imposed pursuant to this Article" in the third sentence.

ARTICLE 11. Eminent Domain.

Sec.

§ 160A-240: Repealed by Session Laws 1981, c. 919, s. 28.

Cross References. - For present provisions as to eminent domain, see Chapter 40A.


§ 160A-240.1. Power to acquire property.

A city may acquire, by gift, grant, devise, exchange, purchase, lease, or any other lawful method, the fee or any lesser interest in real or personal property for use by the city or any department, board, commission or agency of the city. In exercising the power of eminent domain a city shall use the procedures of Chapter 40A.

History

(1981, c. 919, s. 29; 1983, c. 768, s. 23; 2011-284, s. 112.)

Local Modification. - City of Monroe: 1985, c. 177; 2000-35, s. 1; city of Rocky Mount: 2003-327, s. 1; city of Wilson: 1989, c. 348, s. 1; town of Cary: 1993, c. 137, s. 1.

Cross References. - As to counties in which the consent of the board of commissioners is required before land may be condemned or acquired by a local governmental unit outside the county, see G.S. 153A-15.

Effect of Amendments. - Session Laws 2011-284, s. 112, effective June 24, 2011, deleted "bequest" following "devise" in the first sentence.

CASE NOTES

Power Not Restricted Where Land and City in Same County. - Summary judgment was properly entered in a declaratory action regarding the applicability of G.S. 153A-15(b) because a condemnation action by a city in order to facilitate the construction of a water supply and distribution facility did not require any approval since the city and the land were located in the same county; moreover, the evidence showed that the real and substantial benefits of the condemnation accrued to the city in question, and not other parties in the case that were located in different counties. Caswell County v. Town of Yanceyville, 170 N.C. App. 124, 611 S.E.2d 451 (2005).

City's Lawful Exercise of its Eminent Domain Power. - City lawfully exercised its eminent domain power because, consistent with the mandates of G.S. 160A-4 and G.S. 160A-312, the city could acquire property by condemnation to establish a gas transmission and distribution system, even in the absence of a concrete, immediate plan to furnish gas services to its citizens as the acquisition was for a public use by the city in compliance with G.S. 160A-240.1 and G.S. 40A-3(b). Town of Midland v. Morris, 209 N.C. App. 208, 704 S.E.2d 329, review denied, 365 N.C. 198, 710 S.E.2d 3, 2011 N.C. LEXIS 245, dismissed and review denied, 365 N.C. 198, 710 S.E.2d 1, 2011 N.C. LEXIS 265 (2011), review denied, 365 N.C. 192, 707 S.E.2d 237, 2011 N.C. LEXIS 228 (2011).

Proper Exercise of Police Power. - In condemnation proceeding brought pursuant to city's power of eminent domain under G.S. 160A-240.1, partial summary judgment was properly granted precluding property owners from recovering for diminution in value caused by the city's construction of a median restricting access to lanes in only one direction of travel; the separation of lanes of traffic was an exercise of police power, and the means used to accomplish the legitimate objective were reasonable in light of the fact that the owners still had free ingress and egress to their property, and injury to property caused by such an exercise of police power was not compensable. City of Concord v. Stafford, 173 N.C. App. 201, 618 S.E.2d 276, cert. dismissed, 360 N.C. 174, 625 S.E.2d 784, cert. denied, 360 N.C. 174, 625 S.E.2d 785 (2005).


§§ 160A-241 through 160A-261: Repealed by Session Laws 1981, c. 919, s. 28.

Cross References. - For present provisions as to eminent domain, see Chapter 40A.


§ 160A-262: Repealed by Session Laws 1973, c. 426, s. 42.

§ 160A-263: Repealed by Session Laws 1981, c. 919, s. 28.

Cross References. - For present provisions as to eminent domain, see Chapter 40A.


§ 160A-264: Reserved for future codification purposes.

ARTICLE 12. Sale and Disposition of Property.

Sec.

§ 160A-265. Use and disposal of property.

In the discretion of the council, a city may: (i) hold, use, change the use thereof to other uses, or (ii) sell or dispose of real and personal property, without regard to the method or purpose of its acquisition or to its intended or actual governmental or other prior use.

History

(1981 (Reg. Sess., 1982), c. 1236.)

Local Modification. - (As to Article 12) Bladen: 1993 (Reg. Sess., 1994), c. 721, ss. 1, 2; (As to Article 12) Burke: 1987 (Reg. Sess., 1988), c. 1002; Burlington: 1989, c. 6; Cherokee: 1983 (Reg. Sess., 1984), c. 939; Clay: 1983, c. 353; (As to Article 12) Cleveland: 1995, c. 201, s. 1; 2013-7, s. 1; Cumberland: 1983 (Reg. Sess., 1984), c. 1079; Craven: 1985, c. 13; Dare: 1987, c. 241; Duplin: 1989, c. 411, ss. 1.1, 1.2; 1989 (Reg. Sess., 1990), c. 1006, s. 1; Edgecombe: 1981, c. 971; Gaston: 1983, c. 405; Graham and Graham County Industrial Development Authority: 1985 (Reg. Sess., 1986), c. 824; Halifax: 1987, c. 238; Harnett: 1985, c. 16; Haywood and Jackson: 1981, c. 137; Johnston: 1989, c. 597, s. 1; Jones: 1983 (Reg. Sess., 1984), c. 960; Lee: 1987 (Reg. Sess., 1988), c. 933; (As to Article 12) 2002-81, s. 1; Lenoir: 1981, c. 176; 1987 (Reg. Sess., 1988), c. 1002; 2000-48, s. 2; Macon: 1979, c. 235; 1989 (Reg. Sess., 1990), c. 998; Madison: 1981, c. 174; McDowell: 1987 (Reg. Sess., 1988), c. 909; 1989 (Reg. Sess., 1990), c. 833, s. 2; Pamlico: 1985, c. 386; 1987, c. 214; (As to Article 12) Pasquotank: 1979, c. 129; 1991, c. 61; Pender: 1989, c. 503, s. 1; 1989 (Reg. Sess., 1990), c. 847, s. 1; 1993, c. 52, s. 1; Pitt: 1983 (Reg. Sess., 1984), c. 942; Rowan: 1987, c. 157; Sampson: 1985 (Reg. Sess., 1986), c. 894; c. 943, s. 2; (As to Article 12) Sanford: 1995, c. 154, s. 1; Scotland: 1987, c. 57; Swain: 1981, c. 137; Transylvania: 1989, c. 4; (As to Article 12) 2009-154, s. 1(a)-(e) (as to construction and provision of affordable housing for certain employees); (As to Article 12) Tyrrell: 1987, c. 9; 2001-32; Washington: 1979, 2nd Sess., c. 1120; 1985, c. 134; Wayne: 1987 (Reg. Sess., 1988), c. 1006, s. 7; (As to Article 12) 1997-170, s. 1; 2004-94; city of Asheboro: 1987, c. 593; city of Asheville: 1979, c. 317; 1981, c. 631; 1985, c. 721; (As to Article 12) 2007-239, s. 2; city of Bessemer City: 1995 (Reg. Sess., 1996), c. 563, s. 1; city of Brevard: 1985, c. 79; 1987 (Reg. Sess., 1988), c. 905; 1999-8, s. 1; (As to Article 12) 1995 (Reg. Sess., 1996), c. 671, s. 1; 2009-154, s. 1(a)-(e) (as to construction and provision of affordable housing for certain employees); city of Burlington: 1985 (Reg. Sess., 1986), c. 829; 1987, c. 121; 1989 (Reg. Sess., 1990), cc. 831, 832; (As to Article 12) 1991, c. 198; 1993, c. 276, s. 1; c. 277, s. 3; 1995 (Reg. Sess., 1996) c. 610, s. 1; 1997-445, s. 2; (As to Article 12) 2001-190, s. 4; city of Charlotte: (As to Article 12) 1981, c. 55; 1983, c. 92; 2000-26, s. 1, as amended by 2007-255, s. 1; city of Clinton: 1985 (Reg. Sess., 1986), c. 943, s. 2; city of Conover: (As to Article 12) 2006-165, s. 1; city of Durham: 1987, c. 756, s. 4; city of Elizabeth City: 1979, c. 129; (As to Article 12) city of Greenville: 2014-37, s. 1(a); (As to Article 12) city of Goldsboro: 2004-94; 2010-76, s. 1; (As to Article 12) city of High Point: 2018-63, s. 1; city of Kinston: 1981, c. 176; 1987 (Reg. Sess., 1988), c. 918; c. 1002; (As to Article 12) 1993, c. 265, s. 1; 2000-48, s. 2; city of Lenoir: 1985, c. 493; (As to Article 12) city of Lincolnton: 1995, c. 57, s. 1; city of Lumberton: 1983 (Reg. Sess., 1984), c. 996; city of Morganton: 1987, c. 265, s. 2; 1987 (Reg. Sess., 1988), c. 1002; city of Mount Airy: 1985, c. 282; 1998-82; 2003-281, s. 1 (as to Article 12); city of New Bern: 1998-29; 2016-41, s. 5; city of Oxford: 1989 (Reg. Sess., 1990), c. 833, s. 1; city of Raleigh: 1997-39, s. 1; 2015-84, s. 1.5 (as to Article 12); city of Roanoke Rapids: 1997-39, s. 1; (As to Article 12) 1991, c. 197; 2003-43, s. 1; city of Salisbury: 1987, c. 205, s. 1; city of Shelby: 1999-5, s. 1; city of Statesville: 1987, c. 265, s. 2; 1989, c. 241, s. 1; (As to Article 12) city of Thomasville: 2002-53, s. 1; city of Washington: 1983 (Reg. Sess., 1984), c. 941; (As to Article 12) 1993, c. 133, s. 1; city of Whiteville: 1987 (Reg. Sess., 1988), c. 1018, s. 1; city of Wilson: 1983, c. 748; town of Ayden: 1991, c. 58; town of Black Creek: 1985, c. 286; (As to Article 12) town of Butner: 2007-269, s. 3; town of Cerro Gordo: 1995 (Reg. Sess. 1996), c. 708; town of Carrboro: 1987, c. 476, s. 1; 1989, c. 97, s. 1; (as to Article 12) town of Cary: 2015-84, s. 1; town of Chadbourn: 1989 (Reg. Sess., 1990), c. 895, s. 11.1; town of Elkin: 1997-130; 1997-131; (As to Article 12) town of Fairmont: 2001-2; (As to Article 12) town of Faison: 1998-40, s. 3; (As to Article 12) town of Farmville: 2005-29, s. 1; (As to Article 12) town of Forest City: 2010-54, s. 1; town of Garner: 1989, c. 270, s. 1; town of Greenevers: 1985, c. 34; town of Kernersville: 1987 (Reg. Sess., 1988), c. 920; 1989 (Reg. Sess., 1990), c. 983; (As to Article 12) 2001-80; (As to Article 12) 2005-433, s. 7(a), (b); (As to Article 12) town of Lake Lure: 2012-115, s. 1; (As to Article 12) town of Matthews: 2010-52, s. 1(d); (As to Article 12) town of Maxton: 1995 (Reg. Sess., 1996), c. 576, s. 1; town of Pilot Mountain: 1985, c. 291, ss. 6, 8; (as to Article 12) town of Pinebluff: 2003-48, s. 1, as amended by 2004-53, s. 1; (as to Article 12) town of Red Springs: 1995, c. 203, s. 1; (As to Article 12) town of Rosman: 2009-154, s. 1(a)-(e) (as to construction and provision of affordable housing for certain employees); town of Tabor City: 1987 (Reg. Sess., 1988), c. 919; town of Tryon: 1987, c. 56; town of Wake Forest: 1985, c. 195; (As to Article 12) town of Wallace: 1998-40, s. 1; town of Waynesville: 1997-139, s. 1; village of Pinehurst: 1989, c. 375, ss. 1, 1.1; Alamance-Burlington Board of Education: 2017-82, s. 11(a)-(c); (As to Article 12) Asheville-Buncombe Technical Community College: 2000-99, s. 1; (As to Article 12) Asheville City Board of Education: 2007-239, s. 2; (As to Article 12) Bladen County Board of Education: 2003-122, ss. 1, 2; Burlington City Board of Education: 1993 (Reg. Sess., 1994), c. 639, s. 1; (As to Article 12) Clinton City Board of Education: 2004-69; Clinton-Sampson Agri-Civic Center Commission: 1985 (Reg. Sess., 1986), c. 943, s. 2; (As to Article 12) Edgecombe County Board of Education: 2009-161, ss. 1-4 (as to construction and provision of affordable housing for certain employees); Foothills Regional Airport Authority: 2000-9, s. 7; (as to Article 12) Greater Asheville Regional Airport Authority: 2012-121, s. 1.6(a); (As to Article 12) Guilford Technical Community College, Board of Trustees: 2011-153, s. 1, as amended by 2014-100, s. 10.9(a); (As to Article 12) Hertford County Board of Education: 2006-86, ss. 1-3 (as to construction, provision or maintenance of affordable rental housing on property owned or leased by Hertford County Board of Education and rent of housing units owned by the Board with priority for teachers); (As to Article 12) High Point Alcoholic Beverage Control Board: 2006-89, s. 1; (As to Article 12) Iredell-Statesville Schools: 2006, c. 45, ss. 1, 1.1; Mayland Community College: 2003-320, s. 1, as amended by 2004-203, s. 81, and as amended by 2006-5, s. 1; Moore County Board of Education: 1999-176, s. 1 (use of buses for tournament June 12, 1999-June 20, 1999); 2004-68; New Hanover County Board of Education: 1985 (Reg. Sess., 1986), c. 917; Pender County Board of Education: 1996, 2nd Ex. Sess., c. 16, s. 1; (As to Article 12) Surry Community College: 2013-67, s. 1; (As to Article 12) Transylvania County Board of Education: 2009-154, s. 1(a)-(e) (as to construction and provision of affordable housing for certain employees); (As to Article 12) Wilkes County Board of Education: 2001-58.

Cross References. - As to disposition of retired service animals, see G.S. 20-187.4.

Editor's Note. - Session Laws 1997-39 would have amended Session Laws 1993, c. 650, s. 2, to add the cities of Raleigh and Roanoke Rapids and the Town of Waynesville to that local modification; however, Session Laws 1993, c. 650, was repealed by Session Laws 1997-180, s. 2.

Session Laws 1999-386, s. 4, effective August 4, 1999, provides that, notwithstanding the requirements of G.S. 131E-8, G.S. 131E-13, G.S. 131E-14, G.S. 153A-176, and Article 12 of Chapter 160A of the General Statutes, and any past compliance or failure to comply with those requirements, the prior conveyance by a municipality as defined in G.S. 131E-6(5), or by a hospital authority as defined in G.S. 131E-16(14), of a hospital facility that currently serves as collateral in a transaction involving North Carolina Medical Care Commission bonds issued under Part 10 of Article 3 of Chapter 143B of the General Statutes is hereby validated. Section 5 of the act provides that Section 4 shall not apply to litigation pending on or before the effective date.

Session Laws 2001-29, ss. 1 and 2, as amended by Session Laws 2001-386, s. 3, provide: "Section 1. This act is for the public purposes of benefiting citizens who were adversely affected by the floods accompanying Hurricane Floyd, promoting economic and community development, and strengthening the tax base.

"Section 2. A county may sell any improvements affixed to or located on real property that it has purchased through the Hazard Mitigation Grant Program related to Hurricane Floyd. These improvements may be sold and are exempt from the restrictions and limitations required to effectuate sales of real or personal property provided for in Article 12 of Chapter 160A of the General Statutes. No dwelling may be sold pursuant to this section unless the following requirements are met:

"(1) The dwelling may be sold only to the verifiable owner of the dwelling at the time of Hurricane Floyd, September 15, 1999, and must initially be reoccupied by the same owner.

"(2) The dwelling must have been properly repaired in compliance with the North Carolina Building Code as verified by the county Planning and Development Department by issuance of a building permit, subsequent inspections, and a certificate of occupancy.

"(3) The dwelling must be sold on or before December 31, 2002."

CASE NOTES

County Had Authority to Lease Property. - Although the taxpayers argued that the proposed ballot language for the 2004 Park Bonds was intended to preclude the use of the property as a professional baseball stadium, when the 2004 Park Bond only restricted the expenditure of bond proceeds on a stadium for professional baseball, and the disbursed money was subsequently repaid, there was no substantial deviation from the purpose for which the bonds were approved under G.S. 159-135. Further, G.S. 160A-265, made applicable to counties by G.S. 153A-176, stated that counties may: (i) hold, use, change the use thereof to other uses; or (ii) sell or dispose of real and personal property, without regard to the method or purpose of its acquisition or to its intended or actual governmental or other prior use. Reese v. Mecklenburg County, 200 N.C. App. 491, 685 S.E.2d 34 (2009), review denied, 364 N.C. 242, 698 S.E.2d 653, 2010 N.C. LEXIS 445 (2010).

Applied in Watts v. Town of Valdese, 65 N.C. App. 822, 310 S.E.2d 152 (1984).

Cited in Concrete Mach. Co. v. City of Hickory, 134 N.C. App. 91, 517 S.E.2d 155 (1999); Metcalf v. Black Dog Realty, LLC, 200 N.C. App. 619, 684 S.E.2d 709 (2009).


§ 160A-266. Methods of sale; limitation.

  1. Subject to the limitations prescribed in subsection (b) of this section, and according to the procedures prescribed in this Article, a city may dispose of real or personal property belonging to the city by:
    1. Private negotiation and sale;
    2. Advertisement for sealed bids;
    3. Negotiated offer, advertisement, and upset bid;
    4. Public auction; or
    5. Exchange.
  2. Private negotiation and sale may be used only with respect to personal property valued at less than thirty thousand dollars ($30,000) for any one item or group of similar items. Real property, of any value, and personal property valued at thirty thousand dollars ($30,000) or more for any one item or group of similar items may be exchanged as permitted by G.S. 160A-271, or may be sold by any method permitted in this Article other than private negotiation and sale, except as permitted in G.S. 160A-277 and G.S. 160A-279.
  3. A city council may adopt regulations prescribing procedures for disposing of personal property valued at less than thirty thousand dollars ($30,000) for any one item or group of items in substitution for the requirements of this Article. The regulations shall be designed to secure for the city fair market value for all property disposed of and to accomplish the disposal efficiently and economically. The regulations may, but need not, require published notice, and may provide for either public or private exchanges and sales. The council may authorize one or more city officials to declare surplus any personal property valued at less than thirty thousand dollars ($30,000) for any one item or group of items, to set its fair market value, and to convey title to the property for the city in accord with the regulations. A city official authorized under this section to dispose of property shall keep a record of all property sold under this section and that record shall generally describe the property sold or exchanged, to whom it was sold, or with whom exchanged, and the amount of money or other consideration received for each sale or exchange.
  4. A city may discard any personal property that: (i) is determined to have no value; (ii) remains unsold or unclaimed after the city has exhausted efforts to sell the property using any applicable procedure under this Article; or (iii) poses a potential threat to the public health or safety.

Provided, however, a city may dispose of real property of any value and personal property valued at thirty thousand dollars ($30,000) or more for any one item or group of similar items by private negotiation and sale where (i) said real or personal property is significant for its architectural, archaeological, artistic, cultural or historical associations, or significant for its relationship to other property significant for architectural, archaeological, artistic, cultural or historical associations, or significant for its natural, scenic or open condition; and (ii) said real or personal property is to be sold to a nonprofit corporation or trust whose purposes include the preservation or conservation of real or personal properties of architectural, archaeological, artistic, cultural, historical, natural or scenic significance; and (iii) where a preservation agreement or conservation agreement as defined in G.S. 121-35 is placed in the deed conveying said property from the city to the nonprofit corporation or trust. Said nonprofit corporation or trust shall only dispose of or use said real or personal property subject to covenants or other legally binding restrictions which will promote the preservation or conservation of the property, and, where appropriate, secure rights of public access.

History

(1971, c. 698, s. 1; 1973, c. 426, s. 42.1; 1983, c. 130, s. 1; c. 456; 1987, c. 692, s. 2; 1987 (Reg. Sess., 1988), c. 1108, s. 9; 1997-174, s. 6; 2001-328, s. 4; 2005-227, s. 3.)

Local Modification. - Durham: 1993 (Reg. Sess., 1994), c. 627, s. 2; Gaston: 2000-96; Macon: 1989 (Reg. Sess., 1990), c. 998; Mecklenburg: 2000-65, as amended by 2001-102, as reenacted by 2003-49, s. 1, as amended by 2005-158 and as amended by 2007-33, s. 1; Onslow: 2013-37, s. 1(d); city of Durham: 1993 (Reg. Sess., 1994), c. 627, s. 1;; town of Ocean Isle Beach: 2013-269, s. 2(a) (as to subsection (a), applicable only to land used for construction and exchange of Alcoholic Beverage Control building, and expiring July 1, 2018); town of Rutherfordton: 1979, c. 350; town of Saluda: 1985 (Reg. Sess., 1986), c. 984; Durham County School Administrative Unit: 1993 (Reg. Sess., 1994), c. 627, s. 2.

Editor's Note. - Session Laws 1997-174, s. 8, provides: "This act raises the threshold amount in G.S. 143-129 and G.S. 160A-266. If any local act provides a threshold amount for the subjects addressed in these statutes that is less than the amount provided in this act, this act prevails to the extent of that conflict."

Session Laws 2005-227, s. 5, provides: "This act raises the threshold amount [$30,000] in G.S. 143-131 and G.S. 160A-266. If any local act provides a threshold amount for the subjects addressed in these statutes that is less than the amount provided in this act, this act prevails to the extent of that conflict."

Effect of Amendments. - Session Laws 2005-227, s. 3, effective July 27, 2005, twice substituted "thirty thousand dollars ($30,000)" for "five thousand dollars ($5,000)" in subsection (c).

CASE NOTES

Editor's Note. - Some of the cases cited below were decided prior to enactment of this Article.

Relationship to G.S. 1A-1, N.C. R. Civ. P. 8(a). - Language of a letter attached to pleadings controlled over plaintiff's allegations and refuted his argument that an exchange of properties contemplated by an interlocal agreement was hastily arranged; therefore the claim failed to overcome the presumption of legality afforded to acts by public officials. The allegations were grievances, rather than allegations sufficient to demonstrate bad faith circumvention of the statutory requirements of G.S. 160A-266. Reese v. Charlotte-Mecklenburg Bd. of Educ. & Mecklenburg, 196 N.C. App. 539, 676 S.E.2d 481 (2009).

What Real Estate May Be Sold. - Town or city authorities may sell any personal property, or sell or lease any real estate which belongs to such town or city, as the surplus of the original acreage ceded for the town or city site, or such land as may have been subsequently acquired or purchased. But in no case may such power be extended to the sale or lease of any real estate which is to be held in trust for the use of the town, or any real estate which is devoted to the purpose of government. To enable the town to sell such real estate there must be a special act of the General Assembly authorizing such sale or lease. Southport v. Stanly, 125 N.C. 464, 34 S.E. 641 (1899); Brockenbrough v. Board of Water Comm'rs, 134 N.C. 1, 46 S.E. 28 (1903).

Conveyance of Land Dedicated for Street. - When a city conveys land bounded by an established street, and the grantee enters upon and improves the land, a subsequent conveyance by the corporation of the land covered by the street, whereby the easement of the appurtenant owner is interfered with, is void. But where there have been no improvements made on a dedicated street and the dedicated land has never been used as a street, a city by an act of legislature conferring authority may sell and convey the land so dedicated to it for street purposes. Moose v. Carson, 104 N.C. 431, 10 S.E. 689 (1889); Church v. Dula, 148 N.C. 262, 61 S.E. 639 (1908).

Contract for removal of sludge from city's sewerage disposal plant related to a service and not a sale of city property within the meaning of the statute requiring sale of city property to be made by auction. Plant Food Co. v. City of Charlotte, 214 N.C. 518, 199 S.E. 712 (1938).

Employment of Real Estate Agent. - Municipality has the authority, in the exercise of its discretion in determining the means for selling, at public auction, parcels of land acquired by foreclosure of tax and street assessment liens, to employ a real estate agent upon commission to obtain a responsible bidder at the sale to bid a sum sufficient to protect the municipality's interest. Cody Realty & Mtg. Co. v. City of Winston-Salem, 216 N.C. 726, 6 S.E.2d 501 (1940).

City and County Had Authority to Enter Agreement. - Property transactions encompassed by an Interlocal Cooperation Agreement between a city and a county were authorized by G.S. 160A-461, G.S. 160A-460(1), G.S. 160A-274(b), and G.S. 160A-266(a). The city and the county entered into the agreement to achieve the specific government-related goals of the development of an urban park; the development of a mixed-use, residential-commercial community; the development of a baseball stadium; and the sale of a city square to fund infrastructure improvements for the baseball facility. Reese v. City of Charlotte, 196 N.C. App. 557, 676 S.E.2d 493, review denied, 363 N.C. 656, 685 S.E.2d 105 (2009).

Sale of Property Conveyed to County. - By the July deed, the property owner conveyed his entire fee simple absolute interest in the property to the county, and the additional language in the deed did not create any limitations or conditions upon the fee simple interest; moreover, municipalities and counties had statutory authority to change the use of real property or to sell or dispose of real property, without regard to the method or purpose of its acquisition or to its intended or actual governmental or other prior use, G.S. 160A-265, and the heirs had not alleged that the county did not follow proper statutory procedures under G.S. 160A-266 et seq., in its sale of the property to the company. Therefore, summary judgment in favor of the heirs on the basis of express or implied dedication of the property to use as a site for a courthouse or county offices or a public park was in error and was reversed; as there were no genuine issues of material fact and the company was entitled to judgment as a matter of law quieting title to the property under G.S. 41-10, the trial court should have granted summary judgment to the company as to its action to quiet title, and should have granted summary judgment in favor of the county and the company by way of declaratory judgment pursuant to G.S. 1-253 et seq., on all substantive issues. Metcalf v. Black Dog Realty, LLC, 200 N.C. App. 619, 684 S.E.2d 709 (2009).

County Had Authority to Lease Property. - County, by G.S. 160A-266, had authority to lease its property, none of the changes to the lease altered any material conditions of the lease, and the notice published prior to December 2007 was legally sufficient. The taxpayers did not show a likelihood of success on the merits of his case, and the trial court properly denied their motion for a preliminary injunction. Further, G.S. 160A-272, made applicable to counties through G.S. 153A-176, provided that leases for terms of more than 10 years shall be treated as a sale of property and may be executed by following any of the procedures authorized for sale of real property, and the lease between the county and the team was for longer than ten years and was thus by statute treated as a sale between the two parties. Reese v. Mecklenburg County, 200 N.C. App. 491, 685 S.E.2d 34 (2009), review denied, 364 N.C. 242, 698 S.E.2d 653, 2010 N.C. LEXIS 445 (2010).

Applied in Reese v. Brooklyn Vill., LLC, 209 N.C. App. 636, 707 S.E.2d 249 (2011).

Opinions of Attorney General

Municipality may not convey real estate to a non-profit corporation without consideration so that said property may be restored as an historic site. See opinion of Attorney General to Mr. Kyle Hayes, North Wilkesboro Town Attorney, 40 N.C.A.G. 500 (1969), issued under former G.S. 160-59.

§ 160A-267. Private sale.

When the council proposes to dispose of property by private sale, it shall at a regular council meeting adopt a resolution or order authorizing an appropriate city official to dispose of the property by private sale at a negotiated price. The resolution or order shall identify the property to be sold and may, but need not, specify a minimum price. A notice summarizing the contents of the resolution or order shall be published once after its adoption, and no sale shall be consummated thereunder until 10 days after its publication.

History

(1971, c. 698, s. 1; 1979, 2nd Sess., c. 1247, s. 24.)

Local Modification. - Mecklenburg: 1981, c. 510; town of Wake Forest: 1987, c. 160.

§ 160A-268. Advertisement for sealed bids.

The sale of property by advertisement for sealed bids shall be done in the manner prescribed by law for the purchase of property, except that in the case of real property the advertisement for bids shall be begun not less than 30 days before the date fixed for opening bids.

History

(1971, c. 698, s. 1.)

§ 160A-269. Negotiated offer, advertisement, and upset bids.

A city may receive, solicit, or negotiate an offer to purchase property and advertise it for upset bids. When an offer is made and the council proposes to accept it, the council shall require the offeror to deposit five percent (5%) of his bid with the city clerk, and shall publish a notice of the offer. The notice shall contain a general description of the property, the amount and terms of the offer, and a notice that within 10 days any person may raise the bid by not less than ten percent (10%) of the first one thousand dollars ($1,000) and five percent (5%) of the remainder. When a bid is raised, the bidder shall deposit with the city clerk five percent (5%) of the increased bid, and the clerk shall readvertise the offer at the increased bid. This procedure shall be repeated until no further qualifying upset bids are received, at which time the council may accept the offer and sell the property to the highest bidder. The council may at any time reject any and all offers.

History

(1971, c. 698, s. 1; 1979, 2nd Sess., c. 1247, s. 25.)

Local Modification. - City of Charlotte: 2000-26, s. 1, as amended by 2007-255, s. 1.

§ 160A-270. Public auction.

  1. Real Property. - When it is proposed to sell real property at public auction, the council shall first adopt a resolution authorizing the sale, describing the property to be sold, specifying the date, time, place, and terms of sale, and stating that any offer or bid must be accepted and confirmed by the council before the sale will be effective. The resolution may, but need not, require the highest bidder at the sale to make a bid deposit in a specified amount. The council shall then publish a notice of the sale at least once and not less than 30 days before the sale. The notice shall contain a general description of the land sufficient to identify it, the terms of the sale, and a reference to the authorizing resolution. After bids have been received, the highest bid shall be reported to the council, and the council shall accept or reject it within 30 days thereafter. If the bid is rejected, the council may readvertise the property for sale.
  2. Personal Property. - When it is proposed to sell personal property at public auction, the council shall at a regular council meeting adopt a resolution or order authorizing an appropriate city official to dispose of the property at public auction. The resolution or order shall identify the property to be sold and set out the date, time, place, and terms of the sale. The resolution or order (or a notice summarizing its contents) shall be published at least once and not less than 10 days before the date of the auction.
  3. The council may conduct auctions of real or personal property electronically by authorizing the establishment of an electronic auction procedure or by authorizing the use of existing private or public electronic auction services. Notice of an electronic auction of property shall identify, in addition to the information required in subsections (a) and (b) of this section, the electronic address where information about the property to be sold can be found and the electronic address where electronic bids may be posted. Notice may be published in a newspaper having general circulation in the political subdivision or by electronic means, or both. A decision to publish notice solely by electronic means for a particular auction or for all auctions under this subsection shall be approved by the governing board of the political subdivision. Except as provided in this subsection, all requirements of subsections (a) and (b) of this section apply to electronic auctions.

History

(1971, c. 698, s. 1; 1973, c. 426, s. 43; 2001-328, s. 5; 2005-227, s. 4; 2006-264, s. 74.)

Effect of Amendments. - Session Laws 2005-227, s. 4, effective July 27, 2005, in subsection (c), inserted the third and fourth sentences, and added the exception at the beginning of the last sentence.

Session Laws 2006-264, s. 74, effective August 27, 2006, in subsection (c), substituted "auction" for "contract" and "auctions" for "contracts" in the next to last sentence.

CASE NOTES

Editor's Note. - Many of the cases cited below were decided under former similar provisions.

Requirement of public notice has no application to actual partition of land in which a municipality owns an interest. Actual partition between tenants in common involves no sale or disposal of land or any interest therein. Craven County v. First-Citizens Bank & Trust Co., 237 N.C. 502, 75 S.E.2d 620 (1953).

Effect of Noncompliance with Notice Requirements. - If the publication of notice fails to comply in substance with the law, especially as to the time of publication, a purchaser does not acquire a marketable title. Bagwell v. Town of Brevard, 267 N.C. 604, 148 S.E.2d 635 (1966).

Advertisement Held Not to Relate Back to Prior Publication of Notice. - An advertisement for the sale of municipal property on a date less than 30 days after the first publication of notice could not relate back to a prior publication of notice, even though the prior notice related to substantially the same land, when the prior notice stipulated a different date for the sale and contained material differences in the terms of payment, as well as a discrepancy in the quantity of land to be sold and whether the land would be offered for sale as a whole or in separate tracts; therefore, the purported sale on the date specified in the second advertisement was a nullity. Bagwell v. Town of Brevard, 267 N.C. 604, 148 S.E.2d 635 (1966).


§ 160A-271. Exchange of property.

A city may exchange any real or personal property belonging to the city for other real or personal property by private negotiation if the city receives a full and fair consideration in exchange for its property. A city may also exchange facilities of a city-owned enterprise for like facilities located within or outside the corporate limits. Property shall be exchanged only pursuant to a resolution authorizing the exchange adopted at a regular meeting of the council upon 10 days' public notice. Notice shall be given by publication describing the properties to be exchanged, stating the value of the properties and other consideration changing hands, and announcing the council's intent to authorize the exchange at its next regular meeting.

History

(1971, c. 698, s. 1; 1973, c. 426, s. 42.1.)

Local Modification. - Town of Ocean Isle Beach: 2013-269, s. 2(b) (applicable only to land used for construction and exchange of Alcoholic Beverage Control building, and expiring July 1, 2018).

§ 160A-272. Lease or rental of property.

  1. Any property owned by a city may be leased or rented for such terms and upon such conditions as the council may determine, but not for longer than 10 years (except as otherwise provided in subsection (b1) of this section) and only if the council determines that the property will not be needed by the city for the term of the lease. In determining the term of a proposed lease, periods that may be added to the original term by options to renew or extend shall be included.
  2. Property may be rented or leased only pursuant to a resolution of the council authorizing the execution of the lease or rental agreement adopted at a regular council meeting upon 30 days' public notice. Notice shall be given by publication describing the property to be leased or rented, stating the annual rental or lease payments, and announcing the council's intent to authorize the lease or rental at its next regular meeting.
  3. No public notice as required by subsection (a1) of this section need be given for resolutions authorizing leases or rentals for terms of one year or less, and the council may delegate to the city manager or some other city administrative officer authority to lease or rent city property for terms of one year or less.
  4. Leases for terms of more than 10 years shall be treated as a sale of property and may be executed by following any of the procedures authorized for sale of real property.
  5. Notwithstanding subsection (b1) of this section, the council may approve a lease without treating that lease as a sale of property for any of the following reasons:
    1. For the siting and operation of a renewable energy facility, as that term is defined in G.S. 62-133.8(a)(7), for a term up to 25 years.
    2. For the siting and operation of a tower, as that term is defined in G.S. 146-29.2(a)(7), for communication purposes for a term up to 25 years.
    3. For the operation and use of components of a wired or wireless network, for a term up to 25 years; provided, however, that the lease is entered into with a private broadband provider or a cooperative in connection with a grant agreement pursuant to G.S. 143B-1373 and is for a discrete and specific project located in an unserved area of an economically distressed county seeking to provide broadband service to homes, businesses, and community anchor points not currently served.
  6. Notwithstanding subsection (a) of this section, any lease by a city of any duration for components of a wired or wireless network shall be entered into on a competitively neutral and nondiscriminatory basis and made available to similarly situated providers on comparable terms and conditions and shall not be used to subsidize the provision of competitive service.

History

(1971, c. 698, s. 1; 1979, 2nd Sess., c. 1247, s. 26; 2009-149, ss. 2, 3; 2010-57, s. 2; 2010-63, s. 2(b); 2011-150, s. 1; 2014-120, s. 34; 2015-246, s. 9; 2018-5, s. 37.1(c).)

Local Modification. - Cabarrus: 2000-88, s. 2; Chowan: 2018-103, s. 1.5(a); Columbus: 1995 (Reg. Sess., 1996), c. 709, s. 1; Duplin: 1987, c. 50; 1987 (Reg. Sess., 1988), c. 1006, s. 6; Durham: 2005-172, s. 1; Lincoln: 1983 (Reg. Sess., 1984), c. 944; 1989, c. 411, s. 1; Montgomery: 2001-485, s. 3.1; Onslow: 2013-37, s. 1(d); Pasquotank: 1991, c. 382; Sampson: 1985 (Reg. Sess., 1986), c. 943, s. 2; Tyrrell: 1987, c. 781, s. 1.1; Wake: 1979, c. 275; Wilson: 1983, c. 239; city of Asheboro: 1989 (Reg. Sess., 1990), c. 867; city of Burlington: 2014-74, s. 1; city of Charlotte: 2000-26, s. 1, as amended by 2007-255, s. 1; city of Concord: 1985, c. 355, as amended by 2000-88, s. 2; city of Gastonia: 2017-37, s. 1; city of Mount Airy: 2003-281, s. 1; city of Salisbury: 1987, c. 205, s. 1; city of Statesville: 1983 (Reg. Sess., 1984), c. 940; 1987 (Reg. Sess., 1988), c. 883; town of Beaufort: 1979, c. 371; town of Columbia: 1987, c. 781, s. 1.1; town of Hope Mills: 1985, c. 285; town of Huntersville: 2009-298; town of Kenansville: 1987, c. 50; town of Manteo: 1985 (Reg. Sess., 1986), c. 808; town of Matthews: 2001-102; town of Nags Head: 2012-30, s. 1 (as to lease to allow operation of licensed nursing home permitted under Chapter 131E); town of Newport: 1998-30; village of Wesley Chapel: (as to lease of property to YMCA) 2008-60, s. 1; Carteret County Board of Education: 2002-35, s. 1 (as to lease of property to Boys and Girls Club); Duplin County Board of Education: 1987, c. 50; Elizabeth City - Pasquotank County Airport Authority: 1991, c. 26; Wayne County Airport Authority: 1963, c. 927, s. 12, as amended by 1987, c. 1006, 1998-20, 2010-76; Warren Field Airport Commission: 2002-84, s. 1.

Editor's Note. - Session Laws 2009-149, s. 1 initially added a sentence at the end of this section, but was applicable to only the cities of Raleigh and Winston-Salem. As amended, it now applies to more than 10 localities and has been codified as the first sentence of G.S. 160A-272(c) at the direction of the Revisor of Statutes. Session Laws 2009-149, s. 3, as amended by Session Laws 2010-57, 2010-63, and 2011-150, has been codified as the second sentence of subsection (c).

Session Laws 2010-57, added the City of Asheville and the Towns of Chapel Hill and Carrboro to the list of localities to which Session Laws 2009-149, s. 2, applied. It expires June 30, 2015, pursuant to Session Laws 2010-57, s. 3.

Session Laws 2014-120, s. 60, is a severability clause.

Session Laws 2015-246, s. 20, is a severability clause.

Session Laws 2018-5, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2018.'"

Session Laws 2018-5, s. 39.7, is a severability clause.

Effect of Amendments. - Session Laws 2014-120, s. 34, effective September 18, 2014, in subsection (c), substituted "25 years" for "20 years" and deleted the former last sentence concerning the applicable counties.

Session Laws 2015-246, s. 9, effective September 23, 2015, substituted "in subsection (b1) of this section" for "herein" in subsection (a); redesignated the last two sentences of subsection (a) as present subsection (a1); substituted "30" for "10" in subsection (a1); inserted "as required by subsection (a1) of this section" in subsection (b); redesignated the last sentence of (b) as present subsection (b1); and in subsection (c), rewrote the existing language, added the subdivision (c)(1) designation, and added subdivision (c)(2).

Session Laws 2018-5, s. 37.1(c), effective July 1, 2018, added subdivision (c)(3) and subsection (d).

CASE NOTES

A municipal corporation has a twofold character and dual powers. The one is variously designated as public, governmental, political or legislative, in which the municipal corporation acts as an agency of the State. The other is variously designated as municipal, private, quasi-private, or proprietary. Lewis v. City of Washington, 63 N.C. App. 552, 305 S.E.2d 752, modified on other grounds, 309 N.C. 818, 310 S.E.2d 610 (1983).

This section empowers a city to lease or rent any property owned by the city for such terms and upon such conditions as the council may determine. This power is to be exercised by the governing body of the municipality acting in its proprietary, rather than its governmental capacity. Lewis v. City of Washington, 63 N.C. App. 552, 305 S.E.2d 752, modified on other grounds, 309 N.C. 818, 310 S.E.2d 610 (1983).

The city's proprietary or corporate power to contract for the leasing of its property is limited. It cannot be exercised so as to disadvantageously affect the governing body's governmental powers. The true test is whether the contract itself deprives a governing body, or its successor, of a discretion which public policy demands should be left unimpaired. Lewis v. City of Washington, 63 N.C. App. 552, 305 S.E.2d 752, modified on other grounds, 309 N.C. 818, 310 S.E.2d 610 (1983).

Leasing Property is a Proprietary Activity. - The rule of governmental immunity did not bar plaintiff's claim against the town because the town's execution of a lease of town property was proprietary in nature. Stephenson v. Town of Garner, 136 N.C. App. 444, 524 S.E.2d 608 (2000).

County, by G.S. 160A-266, had authority to lease its property, none of the changes to the lease altered any material conditions of the lease, and the notice published prior to December 2007 was legally sufficient. The taxpayers did not show a likelihood of success on the merits of his case, and the trial court properly denied their motion for a preliminary injunction. Further, G.S. 160A-272, made applicable to counties through G.S. 153A-176, provided that leases for terms of more than 10 years shall be treated as a sale of property and may be executed by following any of the procedures authorized for sale of real property, and the lease between the county and the team was for longer than ten years and was thus by statute treated as a sale between the two parties. Reese v. Mecklenburg County, 200 N.C. App. 491, 685 S.E.2d 34 (2009), review denied, 364 N.C. 242, 698 S.E.2d 653, 2010 N.C. LEXIS 445 (2010).

Governmental Immunity. - City was entitled to governmental immunity in a negligence action arising from a trip and fall at a building the city leased to an arts organization because the lease was a governmental function, as (1) the legislature provided urban redevelopment activities undertaken to promote the health, safety, and welfare of North Carolina citizens were governmental functions, (2) the legislature determined private enterprise alone could not address urban blight, (3) the lease was a valid urban redevelopment and downtown revitalization activity, (4) the city did not seek to make a profit from the lease, and (5) the fees the city charged under the lease were not substantial and did not cover the city's operating costs. Meinck v. City of Gastonia, 371 N.C. 497, 819 S.E.2d 353 (2018).

Applied in National Medical Enters., Inc. v. Sandrock, 72 N.C. App. 245, 324 S.E.2d 268 (1985).

Cited in BellSouth Telecomms., Inc. v. City of Laurinburg, 168 N.C. App. 75, 606 S.E.2d 721, cert. denied, - N.C. - , 615 S.E.2d 660, cert. denied, 359 N.C. 629, - S.E.2d - (2005).


§ 160A-272.1. Lease of utility or enterprise property.

Subject to this Article and G.S. 160A-321, a city-owned utility or public service enterprise, or part thereof, may be leased.

History

(1979, 2nd Sess., c. 1247, s. 27; 2018-5, s. 37.1(d).)

Effect of Amendments. - Session Laws 2018-5, s. 37.1(d), effective July 1, 2018, inserted "this Article and."

§ 160A-273. Grant of easements.

A city shall have authority to grant easements over, through, under, or across any city property or the right-of-way of any public street or alley that is not a part of the State highway system. Easements in a street or alley right-of-way shall not be granted if the easement would substantially impair or hinder the use of the street or alley as a way of passage. A grant of air rights over a street right-of-way or other property owned by the city for the purpose of erecting a building or other permanent structure (other than utility wires or pipes) shall be treated as a sale of real property, except that a grant of air rights over a street right-of-way for the purpose of constructing a bridge or passageway between existing buildings on opposite sides of the street shall be treated as a grant of an easement.

History

(1971, c. 698, s. 1.)

CASE NOTES

Constitutionality. - This section is not a special act and does not violate N.C. Const., Art. II, § 24, which prohibits the enactment of any local, private, or special act or resolution regulating labor, trade, mining, or manufacturing. Cheape v. Town of Chapel Hill, 320 N.C. 549, 359 S.E.2d 792 (1987).


§ 160A-274. Sale, lease, exchange and joint use of governmental property.

  1. For the purposes of this section, "governmental unit" means a city, county, school administrative unit, sanitary district, fire district, the State, or any other public district, authority, department, agency, board, commission, or institution.
  2. Any governmental unit may, upon such terms and conditions as it deems wise, with or without consideration, exchange with, lease to, lease from, sell to, or purchase from any other governmental unit any interest in real or personal property.
  3. Action under this section shall be taken by the governing body of the governmental unit. Action hereunder by any State agency, except the Department of Transportation, shall be taken only after approval by the Department of Administration. Action with regard to State property under the control of the Department of Transportation shall be taken by the Department of Transportation or its duly authorized delegate. Provided, any county board of education or board of education for any city administrative unit may, upon such terms and conditions as it deems wise, lease to another governmental unit for one dollar ($1.00) per year any real property owned or held by the board which has been determined by the board to be unnecessary or undesirable for public school purposes.

History

(1969, c. 806; 1971, c. 698, s. 1; 1973, c. 507, s. 5; 1975, c. 455; c. 664, s. 9; c. 879, s. 46; 1977, c. 464, s. 34; 2001-328, s. 6.)

Local Modification. - Cabarrus: 1991 (Reg. Sess., 1992), c. 848, ss. 2, 3; Carteret: 1991 (Reg. Sess., 1992), c. 1001, s. 2; Duplin: 1991 (Reg. Sess., 1992), c. 1001, s. 2; Iredell: 1991 (Reg. Sess., 1992), c. 1001, s. 2; New Hanover: 1977, c. 97; 1981, c. 437; Rowan: 1991 (Reg. Sess., 1992), c. 848, ss. 2, 3; Stanly: 1991 (Reg. Sess., 1992), c. 848, ss. 2, 3; Hertford County Board of Education: 1985, c. 123; Moore County Board of Education: 2014-70, s. 1.

Cross References. - As to the sale, exchange or lease of school property, see G.S. 115C-518.

For provisions regarding Ashe, Avery, Brunswick, Chowan, Forsyth, Harnett, Haywood, Lee, Macon, Nash, Orange, Pasquotank, Richmond and Sampson Counties and local boards of education for school administrative units in or for Ashe, Avery, Brunswick, Chowan, Forsyth, Harnett, Haywood, Lee, Macon, Nash, Orange, and Pasquotank Counties, see the editor's note under G.S. 153A-158.1.

Editor's Note. - Session Laws 1999-115, s. 4, provides that s. 3, which repealed local modifications to this section, becomes effective January 1, 2000, and shall not be construed to alter any agreements entered into before that date.

CASE NOTES

Presumption of Legality and Correctness. - Board of education's resolution to authorize its chairman to approve an interlocal agreement was afforded a presumption of legality and correctness: (1) G.S. 160A-274, G.S. 153A-158, G.S. 115C-36, and G.S. 115C-518 authorized the board, upon such terms and conditions as it deemed wise, to exchange property owned by the board, based upon a determination that the property was no longer suitable and necessary for public school purposes; (2) the board determined that the replacement office space in the Government Center was more suitable for its needs; (3) this determination was adequate to meet the unnecessary or unsuitable requirement of G.S. 115C-518, (4) plaintiff failed to overcome the presumption of legality afforded public officials; therefore (5) plaintiff's complaint did not state a cause of action, as required by G.S. 1A-1, N.C. R. Civ. P. 8(a), for which relief could be granted. Reese v. Charlotte-Mecklenburg Bd. of Educ. & Mecklenburg, 196 N.C. App. 539, 676 S.E.2d 481 (2009).

Authority to Act. - Although plaintiff's complaint alleged that public officials acted to the detriment of other interested parties, there were no allegations that those officials acted to enrich themselves or in wanton disregard of the public good. The complaint did not allege, nor did answers admit, that either a city or a county had agreed, hastily or otherwise, to pay or exchange property for less than the appraised or fair market value, in violation of G.S. 160A-274. Reese v. Charlotte-Mecklenburg Bd. of Educ. & Mecklenburg, 196 N.C. App. 539, 676 S.E.2d 481 (2009).

While the acts described in G.S. 160A-274 were not as transaction specific as the legislation described in Carter, they were sufficiently broad enough to encompass the transactions that were the subject of this litigation and to meet the requirements of Dillon's Rule. Reese v. Charlotte-Mecklenburg Bd. of Educ. & Mecklenburg, 196 N.C. App. 539, 676 S.E.2d 481 (2009).

Purchase and Gift of Property Improper. - County exceeded its statutory authority where it purchased land and gave it to the State as an enticement for the building of a State prison. Carter v. Stanly County, 125 N.C. App. 628, 482 S.E.2d 9, cert. denied, 346 N.C. 276, 487 S.E.2d 540 (1997).

City and County Had Authority to Enter Agreement. - Property transactions encompassed by an Interlocal Cooperation Agreement between a city and a county were authorized by G.S. 160A-461, G.S. 160A-460(1), G.S. 160A-274(b), and G.S. 160A-266(a). The city and the county entered into the agreement to achieve the specific government-related goals of the development of an urban park; the development of a mixed-use, residential-commercial community; the development of a baseball stadium; and the sale of a city square to fund infrastructure improvements for the baseball facility. Reese v. City of Charlotte, 196 N.C. App. 557, 676 S.E.2d 493, review denied, 363 N.C. 656, 685 S.E.2d 105 (2009).

Opinions of Attorney General

Town had authority to lease land to town ABC Board on which to build a building, unless some contrary provision of the town's charter controlled. See opinion of Attorney General to Mr. W.F. Southern, Mayor Pro Tempore, Town of Walnut Cove, 40 N.C.A.G. 483 (1969), issued under former G.S. 160-61.2.

§ 160A-275. Warranty deeds.

Any city, county, or other municipal corporation is authorized to execute and deliver deeds to any real property with full covenants of warranty, without regard to how the property was acquired, when, in the opinion of the governing body, it is in the best interest of the city, county, or other municipal corporation to convey by warranty deed. Members of the governing boards of counties, cities, and other municipal corporations are hereby relieved of any personal or individual liability by reason of the execution of warranty deeds to governmentally owned property unless they act in fraud, malice, or bad faith.

History

(1945, c. 962; 1955, c. 935; 1969, cc. 48, 223, 332; c. 1003, s. 5; 1971, c. 698, s. 1.)

Local Modification. - Cumberland: 1991, c. 57.

§ 160A-276. Sale of stocks, bonds, and other securities.

A city may sell through a broker without complying with the preceding sections of this Article shares of common and preferred stock, bonds, options, and warrants or other rights with respect to stocks and bonds, and other securities, when the stock, bond, or other right or security has an established market and is traded in the usual course of business on a national stock exchange or over-the-counter by reputable brokers and securities dealers. The city may pay the usual fees and taxes incident to such transactions. Nothing in this section authorizes a city to deal in its own bonds in any manner inconsistent with Chapter 159 of the General Statutes, nor to invest in any securities not authorized by G.S. 159-30.

History

(1973, c. 426, s. 44.)

§ 160A-277. Sale of land to volunteer fire departments and rescue squads; procedure.

  1. A city, upon such terms and conditions as it deems wise, with or without monetary consideration may lease, sell or convey to a volunteer fire department or to a volunteer rescue squad any land or interest in land, for the purpose of constructing or expanding fire department or rescue squad facilities, if the volunteer fire department or volunteer rescue squad provides fire protection or rescue services to the city.
  2. Any lease, sale or conveyance under this section must be approved by the city council by resolution adopted at a regular meeting of the council upon 10 days' public notice. Notice shall be given by publication describing the property to be leased or sold, stating the value of the properties, the proposed monetary consideration or lack thereof, and the council's intent to authorize the lease, sale or conveyance.

History

(1979, c. 583.)

Local Modification. - Onslow: 1981, c. 115.

§ 160A-278. Lease of land for housing.

A city may lease land upon such terms and conditions as it deems wise to any person, firm or corporation who will use the land to construct housing for the benefit of persons of low income, or moderate income, or low and moderate income. Such a housing project may also provide housing to persons of other than low or moderate income, as long as at least twenty percent (20%) of the units in the project are set aside for the exclusive use of persons of low income. Despite the provisions of G.S. 160A-272, a lease authorized pursuant to this section may be made by private negotiation and may extend for longer than 10 years. Property may be leased under this section only pursuant to a resolution of the council authorizing the execution of the lease adopted at a regular council meeting upon 10 days' public notice. Notice shall be given by publication describing the property to be leased, stating the value of the property, stating the proposed consideration for the lease, and stating the council's intention to authorize the lease.

History

(1987, c. 464, s. 9.)

§ 160A-279. Sale of property to entities carrying out a public purpose; procedure.

  1. Whenever a city or county is authorized to appropriate funds to any public or private entity which carries out a public purpose, the city or county may, in lieu of or in addition to the appropriation of funds, convey by private sale to such an entity any real or personal property which it owns; provided no property acquired by the exercise of eminent domain may be conveyed under this section; provided that no such conveyance may be made to a for-profit corporation. The city or county shall attach to any such conveyance covenants or conditions which assure that the property will be put to a public use by the recipient entity. The procedural provisions of G.S. 160A-267 shall apply. Provided, however, that a city or county may convey to any public or private entity, which is authorized to receive appropriations from a city or county, surplus automobiles without compensation or without the requirement that the automobiles be used for a public purpose. Provided, however, this conveyance is conditioned upon conveyance by the public or private entity to Work First participants selected by the county department of social services under the rules adopted by the local department of social services. In the discretion of the public or private entity to which the city or county conveys the surplus automobile, when that entity conveys the vehicle to a Work First participant it may arrange for an appropriate security interest in the vehicle, including a lien or lease, until such time as the Work First participant satisfactorily completes the requirements of the Work First program. This subsequent conveyance by the public or private entity to the Work First participant may be without compensation. The participant may be required to pay for license, tag, and/or title.
  2. Notwithstanding any other provision of law, this section applies only to cities and counties and not to any other entity which this Article otherwise applies to.
  3. Repealed by Session Laws 1993, c. 491, s. 1.
  4. This section does not limit the right of any entity to convey property by private sale when that right is conferred by another law, public, or local.

History

(1987, c. 692, s. 1; 1993, c. 491, s. 1; 1998-195, s. 1.)

Local Modification. - Mecklenburg: 1989, c. 354, s. 1; 1993, c. 491, s. 1; city of Charlotte: 1989, c. 354, s. 1; 1993, c. 491, s. 1; city of Durham: 1993 (Reg. Sess., 1994), c. 658, s. 1; city of Monroe: 1991, c. 319, s. 2; city of New Bern: 1993, c. 277, ss. 1, 2; c. 553, s. 76; 2016-41, s. 5.

Legal Periodicals. - See legislative survey, 21 Campbell L. Rev. 323 (1999).

CASE NOTES

Prohibition contained in subsection (a) was not applicable because a city intended to convey a sewer easement to the county sewerage district, not to sell it to some other private party. City of Asheville v. Resurgence Dev. Co., LLC, 230 N.C. App. 80, 748 S.E.2d 751 (2013).

Cited in County of Moore v. Humane Soc'y of Moore County, Inc., 157 N.C. App. 293, 578 S.E.2d 682 (2003).


§ 160A-280. Donations of personal property to other governmental units.

  1. A city may donate to another governmental unit within the United States, a sister city, or a nonprofit organization incorporated by (i) the United States, (ii) the District of Columbia, or (iii) one of the United States, any personal property, including supplies, materials, and equipment, that the governing board deems to be surplus, obsolete, or unused. The governing board of the city shall post a public notice at least five days prior to the adoption of a resolution approving the donation. The resolution shall be adopted prior to making any donation of surplus, obsolete, or unused personal property. For purposes of this section a sister city is a city in a nation other than the United States that has entered into a formal, written agreement or memorandum of understanding with the donor city for the purposes of establishing a long term partnership to promote communication, understanding, and goodwill between peoples and to develop mutually beneficial activities, programs, and ideas. The agreement or memorandum of understanding establishing the sister city relationship shall be signed by the mayors or chief elective officer of both the donor and recipient cities.
  2. For the purposes of this section, the term "governmental unit" shall have the same meaning as defined by G.S. 160A-274(a) and shall include North Carolina charter schools.
  3. The authority granted to a city under this section is in addition to any authority granted under any other provision of law.

History

(2007-430, s. 1; 2009-141, ss. 1, 2, 3.)

Effect of Amendments. - Session Laws 2009-141, ss. 1-3, effective June 19, 2009, in subsection (a), in the first sentence, deleted "a" following "donate to" near the beginning, and in the second sentence, deleted "or county" following "the city" near the beginning; in subsection (b), added "and shall include North Carolina charter schools" at the end; and in subsection (c), substituted "a city" for "a city, county, or governmental unit."

ARTICLE 13. Law Enforcement.

Sec.

§ 160A-281. Policemen appointed.

A city is authorized to appoint a chief of police and to employ other police officers who may reside outside the corporate limits of the city unless the council provides otherwise.

History

(R.C., c. 111, s. 16; Code, c. 3803; Rev., s. 2926; C.S., s. 2641; 1969, c. 23, s. 1; 1971, c. 698, s. 1; 1973, c. 426, s. 45.)

Cross References. - As to disposition of retired service animals, see G.S. 20-187.4.

Legal Periodicals. - For comment, "Municipal Tort Liability for Negligent Failure to Provide Adequate Police Protection," see 20 Wake Forest L. Rev. 697 (1984).

For article, "Discipline and Policing," see 68 Duke L.J. 840 (2019).

CASE NOTES

City as Employer. - In this Age Discrimination in Employment Act of 1967 (ADEA) action, ADEA authorized suit against the City of Winston-Salem, but not the Winston-Salem Police Department because North Carolina law implied that a city was an employer of a police officer working for the city's police department. Fisher v. Winston-Salem Police Dep't, 28 F. Supp. 3d 526 (M.D.N.C. 2014).

Power to Send Policemen to Youth Development Center. - The explicit power of a municipality to appoint and employ police contemplates that the persons so engaged be qualified and competent, and therefore a municipality has implied authority, exercisable within the discretion of its governing body, to send its policemen to a police youth development center and to make proper expenditures for this purpose. Green v. Kitchin, 229 N.C. 450, 50 S.E.2d 545 (1948), decided prior to the enactment of G.S. 160A-289, and commented on in 27 N.C.L. Rev. 500 (1949).

Cited in Isenhour v. Hutto, 350 N.C. 601, 517 S.E.2d 121 (1999).

Opinions of Attorney General

Company police officers were not properly municipal police officers of a town and could not hold themselves out as town officers or enforce state law on the streets and highways of the town. See opinion of Attorney General to Mr. G. Dewey Hudson, District Attorney, Fourth Prosecutorial District, 2001 N.C. AG LEXIS 4 (2/23/2001).

§ 160A-282. Auxiliary law-enforcement personnel; workers' compensation benefits.

  1. A city may by ordinance provide for the organization of an auxiliary police department made up of volunteer members.
  2. A city, by enactment of an ordinance, may provide that, while undergoing official training and while performing duties on behalf of the city pursuant to orders or instructions of the chief of police of the city, auxiliary law-enforcement personnel shall be entitled to benefits under the North Carolina Workers' Compensation Act and to any fringe benefits for which such volunteer personnel qualify.
  3. The board of commissioners of any county may provide that persons who are deputized by the sheriff of the county as special deputy sheriffs or persons who are serving as volunteer law-enforcement officers at the request of the sheriff and under his authority, while undergoing official training and while performing duties on behalf of the county pursuant to orders or instructions of the sheriff, shall be entitled to benefits under the North Carolina Workers' Compensation Act and to any fringe benefits for which such persons qualify.

This subsection shall not apply to volunteer school safety resource officers as described in G.S. 162-26.

History

(1969, c. 206, s. 1; 1971, c. 698, s. 1; 1973, c. 1263, s. 1; 1979, c. 714, s. 2; 1979, 2nd Sess., c. 1247, s. 28; 2013-360, s. 8.45(d).)

Local Modification. - Columbus: 1973, c. 1263, s. 2.

Effect of Amendments. - Session Laws 2013-360, s. 8.45(d), effective December 1, 2013, added the second paragraph in subsection (c).

§ 160A-283. Joint county and city auxiliary police.

The governing body of any city, town, or county is hereby authorized to create and establish a joint law-enforcement officers' auxiliary force with one or more cities, towns, or counties. Each participating city, town, or county shall, by resolution or ordinance, establish the joint auxiliary police force. The resolution or ordinance shall specify whether the members of the joint auxiliary police force shall be volunteers or shall be paid. Members shall be appointed by the respective governmental units and shall take the oath required for regular police officers. The joint auxiliary force may be called into active service at any time by the mayor or chief of police of the participating town or city or the chairman of the board of commissioners or sheriff of a participating county. Members of the joint auxiliary force, while undergoing official training and while on active duty shall be members of the unit which called the auxiliary force into active duty and shall be entitled to all powers, privileges and immunities afforded by law to regularly employed law-enforcement officers of that unit including benefits under the Workers' Compensation Act. Members of the joint auxiliary force shall not be considered as public officers within the meaning of the North Carolina Constitution. Such members shall be dressed in the uniform prescribed by such auxiliary force at any time such members or member exercises any of the duties or authority herein provided for.

History

(1971, c. 607; c. 896, s. 4; 1979, c. 714, s. 2.)

Cross References. - As to authority of counties under this section, see also G.S. 153A-212.

Editor's Note. - This section was enacted as G.S. 160-20.4. It was transferred to its present position by Session Laws 1971, c. 896, s. 4.

§ 160A-284. Oath of office; holding other offices.

  1. Each person appointed or employed as chief of police, policeman, or auxiliary policeman shall take and subscribe before some person authorized by law to administer oaths the oath of office required by Article VI, Sec. 7, of the Constitution. The oath shall be filed with the city clerk.
  2. The offices of policeman and chief of police are hereby declared to be offices that may be held concurrently with any other appointive office pursuant to Article VI, Sec. 9, of the Constitution. The offices of policeman and chief of police are hereby declared to be offices that may be held concurrently with any elective office, other than elective office in the municipality employing the policeman or chief of police, pursuant to Section 9 of Article VI of the Constitution.
  3. The office of auxiliary policeman is hereby declared to be an office that may be held concurrently with any elective office or appointive office pursuant to Article VI, Sec. 9, of the Constitution.

History

(1971, c. 698, s. 1; c. 896, s. 4; 1975, c. 664, s. 10; 2018-13, s. 4(a).)

Editor's Note. - This section was enacted as G.S. 160A-283. It was renumbered as G.S. 160A-284 by Session Laws 1971, c. 896, s. 4.

Session Laws 2018-13, s. 4(b), made the amendment of this section by Session Laws 2018-13, s. 4(a), effective June 20, 2018, and further provides: "Any policeman or chief of police having taken an oath of office to any elective office in this State prior to the effective date is not deemed to have resigned his or her position as a law enforcement officer due to the elective office."

Session Laws 2018-13, s. 6, is a severability clause.

Effect of Amendments. - Session Laws 2018-13, s. 4(a), added the subsection designators; in subsection (b), in the first sentence, substituted "policeman and chief of police" for "policeman, chief of police, and auxiliary policeman," and added the last sentence; and, in subsection (c), added "or appointive office." For effective date and applicability, see editor's note.

CASE NOTES

Cited in Isenhour v. Hutto, 350 N.C. 601, 517 S.E.2d 121 (1999).

Opinions of Attorney General

Person holding appointive office as police officer can hold position as elected officer in either State or local government, including as a school board member. See opinion of Attorney General to Captain Bobby Kilgore, Monroe Public Safety Department, 55 N.C.A.G. 34 (1985).

§ 160A-285. Powers and duties of policemen.

As a peace officer, a policeman shall have within the corporate limits of the city all of the powers invested in law-enforcement officers by statute or common law. He shall also have power to serve all civil and criminal process that may be directed to him by any officer of the General Court of Justice and may enforce the ordinances and regulations of the city as the council may direct.

History

(Code, s. 3811; Rev., s. 2927; C.S., s. 2642; 1971, c. 698, s. 1; c. 896, s. 4.)

Editor's Note. - This section was enacted as G.S. 160A-284. It was renumbered G.S. 160A-285 by Session Laws 1971, c. 896, s. 4.

CASE NOTES

Editor's Note. - Some of the cases cited below were decided under former similar provisions.

A policeman has the authority under general statute to deputize a citizen to aid him in serving a warrant for breach of the peace, a policeman being given the same authority, within the town limits, in making arrests as a sheriff. Tomlinson v. Norwood, 208 N.C. 716, 182 S.E. 659 (1935).

Service of Process Held Valid. - Where a town charter provided for the appointment of a chief of police or marshal and declared that, in the execution of process, he should have the same power, etc., which sheriffs and constables have, the service by such officer of a summons directed to "the sheriff of W. county or town constable of W. town" was valid. Lowe v. Harris, 121 N.C. 287, 28 S.E. 535 (1897).

Cited in State v. Gaines, 332 N.C. 461, 421 S.E.2d 569 (1992), cert. denied, 522 U.S. 900, 118 S. Ct. 248, 139 L. Ed. 2d 177 (1997); Isenhour v. Hutto, 350 N.C. 601, 517 S.E.2d 121 (1999).

Opinions of Attorney General

Policemen Have the Duty to Serve Summonses and Petitions in Juvenile Cases. - See opinion of Attorney General to Mr. William Y. Bicketty, 41 N.C.A.G. 892 (1972).

§ 160A-286. Extraterritorial jurisdiction of policemen.

In addition to their authority within the corporate limits, city policemen shall have all the powers invested in law-enforcement officers by statute or common law within one mile of the corporate limits of the city, and on all property owned by or leased to the city wherever located.

Any officer pursuing an offender outside the corporate limits or extraterritorial jurisdiction of the city shall be entitled to all of the privileges, immunities, and benefits to which he would be entitled if acting within the city, including coverage under the workers' compensation laws.

History

(1971, c. 698, s. 1; c. 896, s. 4; 1973, c. 426, s. 46; c. 1286, s. 24; 1991, c. 636, s. 3.)

Local Modification. - Gaston: 1985 (Reg. Sess., 1986), c. 836, s. 2; Sampson: 1985, c. 292; city of Clinton: 1985, c. 292, s. 1; town of Pittsboro: 1983, c. 348.

Editor's Note. - This section was enacted as G.S. 160A-285. It was renumbered as G.S. 160A-286 by Session Laws 1971, c. 896, s. 4.

CASE NOTES

This section extends the extraterritorial power of city police officers beyond the mere power to arrest found in subsection (c) of G.S. 15A-402. State v. Treants, 60 N.C. App. 203, 298 S.E.2d 438 (1982), cert. denied, 307 N.C. 702, 301 S.E.2d 395 (1983).

This section and G.S. 15A-402 must be analyzed to determine what area the territorial jurisdiction of a municipal law-enforcement officer actually encompasses. State v. Treants, 60 N.C. App. 203, 298 S.E.2d 438 (1982), cert. denied, 307 N.C. 702, 301 S.E.2d 395 (1983).

In light of G.S. 15A-402 and G.S. 160A-286, North Carolina courts would not recognize a claim for negligence against a university or its police force for failing to intervene or interfere with a municipality's exercise of its statutory police powers. McFadyen v. Duke Univ., 786 F. Supp. 2d 887 (M.D.N.C. Mar. 31, 2011), aff'd and rev'd in part, 703 F.3d 636 (2012).

As a matter of law, city police had complete statutory authority under North Carolina law, on campus and off, pursuant to G.S. 15A-402 and G.S. 160A-286; jurisdictional agreement between the city police and university police could not reduce the city police department's statutory authority, nor could it give the university police any authority over the city police, even on campus or in other areas around campus, regardless of whether the university police had "primary jurisdiction" of an area under the agreement. McFadyen v. Duke Univ., 786 F. Supp. 2d 887 (M.D.N.C. Mar. 31, 2011), aff'd and rev'd in part, 703 F.3d 636 (2012).

Where police officer is acting within his territorial jurisdiction, the defendant has no right to resist, delay, or obstruct a search being conducted pursuant to a warrant. State v. Treants, 60 N.C. App. 203, 298 S.E.2d 438 (1982), cert. denied, 307 N.C. 702, 301 S.E.2d 395 (1983).

Applied in State v. Dark, 22 N.C. App. 566, 207 S.E.2d 290 (1974).

Cited in State v. Mangum, 30 N.C. App. 311, 226 S.E.2d 852 (1976); State v. Williams, 31 N.C. App. 237, 229 S.E.2d 63 (1976); State v. Proctor, 62 N.C. App. 233, 302 S.E.2d 812 (1983).


§ 160A-287. City lockups.

A city shall have authority to establish, erect, repair, maintain and operate a lockup for the temporary detention of prisoners pending their transferal to the county or district jail or the State Division of Adult Correction and Juvenile Justice.

History

(Code, ss. 704, 3117; 1901, c. 283; 1905, c. 526; Rev., s. 2916; 1907, c. 978; P.L. 1917, c. 223; C.S., s. 2623; Ex. Sess. 1921, c. 58; 1927, c. 14; 1933, c. 69; 1949, c. 938; 1955, c. 77; 1959, c. 391; 1961, c. 308; 1967, c. 100, s. 2; c. 1122, s. 1; 1969, c. 944; 1971, c. 698, s. 1; c. 896, s. 4; 2011-145, s. 19.1(h); 2017-186, s. 3(a).)

Editor's Note. - This section was enacted as G.S. 160A-286. It was renumbered as G.S. 160A-287 by Session Laws 1971, c. 896, s. 4.

Session Laws 2017-186, s. 3(a), provides: "The Revisor of Statutes shall change any additional references in the General Statutes to the 'Division of Adult Correction' to the 'Division of Adult Correction and Juvenile Justice'." Pursuant to this authority, the Revisor of Statutes substituted "Division of Adult Correction and Juvenile Justice" for "Division of Adult Correction," effective December 1, 2017.

Effect of Amendments. - Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted "Division of Adult Correction" for "Department of Correction."

CASE NOTES

Applied in Craven County Hosp. Corp. v. Lenoir County, 75 N.C. App. 453, 331 S.E.2d 690 (1985).


§ 160A-288. Cooperation between law enforcement agencies.

  1. Unless specifically prohibited or limited by an ordinance officially adopted by the governing body of the city or county by which the person is employed, appointed, or elected to serve, the head of any law enforcement agency may temporarily provide assistance to another agency if so requested in writing by the head of the requesting agency. The assistance may comprise allowing officers of the agency to work temporarily with officers of the requesting agency (including in an undercover capacity) and lending equipment and supplies. While working with the requesting agency under the authority of this section, an officer shall have the same jurisdiction, powers, rights, privileges and immunities (including those relating to the defense of civil actions and payment of judgments) as the officers of the requesting agency in addition to those the officer normally possesses. While on duty with the requesting agency, the officer shall be subject to the lawful operational commands of the officer's superior officers in the requesting agency, but the officer shall for personnel and administrative purposes, remain under the control of the officer's own agency, including for purposes of pay. The officer shall furthermore be entitled to workers' compensation and the same benefits when acting pursuant to this section to the same extent as though the officer were functioning within the normal scope of the officer's duties.
  2. As used in this section:
    1. "Head" means any director or chief officer of a law enforcement agency including the chief of police of a local department, chief of police of county police department, and the sheriff of a county, or an officer of one of the above named agencies to whom the head of that agency has delegated authority to make or grant requests under this section, but only one officer in the agency shall have this delegated authority at any time.
    2. "Law enforcement agency" or "agency" means a municipal police department, a county police department, or a sheriff's office of this State. Subject to G.S. 15A-403, it also includes a municipal police department, a county police department, or a sheriff's office of another state if the laws of the other state allow for the provision of mutual aid with out-of-state law enforcement officers. All other State and local agencies are exempted from the provisions of this section.
  3. This section in no way reduces the jurisdiction or authority of State law enforcement officers.
  4. For purposes of this section, the following shall be considered the equivalent of a municipal police department:
    1. Campus law enforcement agencies established pursuant to G.S. 115D-21.1(a) or G.S. 116-40.5(a).
    2. Colleges or universities which are licensed, or exempted from licensure, by G.S. 116-15 and which employ company police officers commissioned by the Attorney General pursuant to Chapter 74E or Chapter 74G of the General Statutes.
    3. Law enforcement agencies operated or eligible to be operated by a municipality pursuant to G.S. 63-53(2).
    4. Repealed by Session Laws 2013-360, s. 16B.4(d), effective July 1, 2013.
    5. A Company Police agency of the Department of Agriculture and Consumer Services commissioned by the Attorney General pursuant to Chapter 74E of the General Statutes.

History

(1967, c. 846; 1971, c. 698, s.1; c. 896, s.4; 1977, c. 534; 1981, c. 93, s. 2; 1987, c. 671, s. 4; 1989, c. 518, s. 2; 1991, c. 636, s. 3; 1991 (Reg. Sess., 1992), c. 1043, s. 6; 1997-143, s. 1; 1999-68, s. 4; 2005-231, s. 8; 2006-159, s. 4; 2009-94, s. 1; 2011-260, s. 4; 2013-360, s. 16B.4(d); 2018-87, s. 1; 2019-130, s. 1.)

Cross References. - As to cooperation between law enforcement agencies, see G.S. 113-28.2A.

As to the employment of special police officers for the territory of the Butner Advisory Council Jurisdiction, see G.S. 122C-408.

As to authority of counties under this section, see G.S. 153A-212.

Editor's Note. - This section was enacted as G.S. 160A-287. It was renumbered as G.S. 160A-288 by Session Laws 1971, c. 896, s. 4.

Effect of Amendments. - Session Laws, 2005-231, s. 8, effective July 28, 2005, inserted "or Chapter 74G of the General Statutes" near the end of subdivision (d)(2).

Session Laws 2006-159, s. 4, effective July 23, 2006, in subdivision (d)(3), added "and" at the end and made a minor punctuation change; and added subdivision (d)(4).

Session Laws 2011-260, s. 4, effective June 23, 2011, substituted "Safety Authority" for "Safety" in subdivision (d)(4).

Session Laws 2013-360, s. 16B.4(d), effective July 1, 2013, deleted subdivision (d)(4).

Session Laws 2018-87, s. 1, effective June 25, 2018, rewrote the first sentence of subsection (a), made gender-neutral changes in the third through fifth sentences of subsection (a), and substituted "sheriff's office" for "sheriff's department" in subdivision (b)(2).

Session Laws 2019-130, s. 1, effective July 19, 2019, substituted "law enforcement" for "law-enforcement" in the section heading and throughout the section; in subsection (a), near the middle of the first sentence, deleted "in enforcing the laws of North Carolina" following "temporarily provide assistance to another agency"; and rewrote subdivision (b)(2).

CASE NOTES

State Must Show That Officer Was a Government Officer. - The State did not meet its burden of showing that the officer was a government officer at the time of the incident because the officer was outside the jurisdiction of his city police department pursuant to G.S. 15A-402, and the State failed to show that the requirements of this section and the emergency assistance provisions of the Mutual Aid Agreement were followed. State v. Locklear, 136 N.C. App. 716, 525 S.E.2d 813 (2000).

Workers' Compensation. - Town was responsible for payment of sums of money that were due to a police officer, who was a member of the town's police department, because the town's police department and a state university's campus police department substantially complied with the requirements of a mutual assistance agreement pursuant to G.S. 160A-288. Furthermore, the officer sustained an injury arising out of and during the course of the officer's employment while working a college football game at the request of the campus police department. Taylor v. Town of Garner, 204 N.C. App. 300, 694 S.E.2d 206 (2010), review denied, 364 N.C. 602, 705 S.E.2d 337, 2010 N.C. LEXIS 888 (2010).

Applied in State v. Bernard, 236 N.C. App. 134, 762 S.E.2d 514 (2014).

Opinions of Attorney General

A company operating a private prison cannot be a party to a "mutual aid agreement" authorized by this section. See opinion of Attorney General to Senator Frank W. Ballance, Jr. and Representative E. David Redwine, 2001 N.C. AG LEXIS 5 (3/28/2001).

§ 160A-288.1. Assistance by State law-enforcement officers; rules; cost.

  1. The governing body of any city or county may request the Governor to assign temporarily State law-enforcement officers with statewide authority to provide law-enforcement protection when local law-enforcement officers: (i) are engaged in a strike; (ii) are engaged in a slowdown; (iii) otherwise refuse to fulfill their law-enforcement responsibilities; or (iv) submit mass resignations. The request from the governing body of the city or county shall be in writing. The request from a county governing board shall be upon the advice of the sheriff of the county.
  2. The Governor shall formulate such rules, policies or guidelines as may be necessary to establish a plan under which temporary State law-enforcement assistance will be provided to cities and counties. The Governor may delegate the responsibility for developing appropriate rules, policies or guidelines to the head of any State department. The Governor may also delegate to a department head the authority to determine the number of officers to be assigned in a particular case, if any, and the length of time they are to be assigned.
  3. While providing assistance to a city or county, a State law-enforcement officer shall be considered an employee of the State for all purposes, including compensation and fringe benefits.
  4. While providing assistance to the city or county, a State officer shall be subject to the lawful operational commands of his State superior officers. The ranking representative of each State law-enforcement agency providing assistance shall consult with the appropriate city or county officials prior to deployment of the State officers under his command.

History

(1979, c. 639, s. 1.)

Opinions of Attorney General

A company operating a private prison cannot be a party to a "mutual aid agreement" authorized by this section. See opinion of Attorney General to Senator Frank W. Ballance, Jr. and Representative E. David Redwine, 2001 N.C. AG LEXIS 5 (3/28/2001).

§ 160A-288.2. Assistance to State law-enforcement agencies.

  1. Unless specifically prohibited or limited by an ordinance officially adopted by the governing body of the city or county by which the officer is employed, appointed, or elected to serve, the head of any local law-enforcement agency may temporarily provide assistance to a State law-enforcement agency in enforcing the laws of North Carolina if so requested in writing by the head of the State agency. The assistance may comprise allowing officers of the local agency to work temporarily with officers of the State agency (including in an undercover capacity) and lending equipment and supplies. While working with the State agency under the authority of this section, an officer shall have the same jurisdiction, powers, rights, privileges and immunities (including those relating to the defense of civil actions and the payment of judgments) as the officers of the State agency in addition to those the officer normally possesses. While on duty with the State agency, the officer shall be subject to the lawful operational commands of the officer's superior officers in the State agency, but the officer shall for personnel and administrative purposes, remain under the control of the local agency, including for purposes of pay. The officer shall furthermore be entitled to workers' compensation and the same benefits when acting pursuant to this section to the same extent as though the officer were functioning within the normal scope of the officer's duties.
  2. As used in this section:
    1. "Head" means any director or chief officer of any State or local law-enforcement agency including the chief of police of a local department, chief of police of a county police department, and the sheriff of a county, or an officer of the agency to whom the head of that agency has delegated authority to make or grant requests under this section, but only one officer in the agency shall have this delegated authority at any time.
    2. "Local law-enforcement agency" means any municipal police department, a county police department, or a sheriff's office.
    3. "State law-enforcement agency" means any State agency, force, department, or unit responsible for enforcing criminal laws.
  3. This section in no way reduces the jurisdiction or authority of State law-enforcement officers.
  4. For the purposes of this section, the following shall be considered the equivalent of a municipal police department:
    1. Campus law-enforcement agencies established pursuant to G.S. 116-40.5(a).
    2. Colleges or universities which are licensed, or exempted from licensure, by G.S. 116-15 and which employ company police officers commissioned by the Attorney General pursuant to Chapter 74E or Chapter 74G of the General Statutes.
    3. Repealed by Session Laws 2013-360, s. 16B.4(e), effective July 1, 2013.

History

(1981, c. 878; 1989, c. 518, s. 3; 1991, c. 636, s. 3; 1991 (Reg. Sess., 1992), c. 1043, s. 7; 2005-231, s. 9; 2006-159, s. 5; 2011-260, s. 5; 2011-326, s. 10; 2013-360, s. 16B.4(e); 2018-87, s. 2.)

Cross References. - As to the employment of special police officers for the territory of the Butner Advisory Council Jurisdiction, see G.S. 122C-408.

Effect of Amendments. - Session Laws, 2005-231, s. 9, effective July 28, 2005, added "or Chapter 74G of the General Statutes" at the end of subdivision (d)(2).

Session Laws 2006-159, s. 5, effective July 23, 2006, added "G.S. 116-40.5(a)" at the end of subdivision (d)(1); and added subdivision (d)(3).

Session Laws 2011-260, s. 5, effective June 23, 2011, substituted "Safety Authority" for "Safety" in subdivision (d)(3).

Session Laws 2011-326, s. 10, effective June 27, 2011, deleted "G.S. 116-40.5(a) and" preceding "G.S. 116-40.5(a)" in subdivision (d)(1).

Session Laws 2013-360, s. 16B.4(e), effective July 1, 2013, deleted subdivision (d)(3).

Session Laws 2018-87, s. 2, effective June 25, 2018, rewrote the first sentence of subsection (a), made gender-neutral changes in the third through fifth sentences of subsection (a), and substituted "sheriff's office" for "sheriff's department" in subdivision (b)(2).

CASE NOTES

Sheriff's Department is Local Governmental Entity. - In the injured party's suit against a sheriff and individual detention officers arising out of a five-day episode in the county detention center where she alleged that they ignored her requests for medical treatment, the trial court properly concluded that the office of North Carolina sheriff was a "person" under 42 U.S.C.S. § 1983 because: (1) the state constitution created the office of sheriff, N.C. Const. art. VII, § 2, but included that provision within the article governing local governments, along with provisions for counties, cities, towns, and other governmental subdivisions, N.C. Const. art. VII, § 1; (2) state statutes, including G.S. 17E-1, 160A-288.2, 143-166.50, and 97-2, characterized a sheriff's department as a local governmental entity; (3) there was no contention that the State would be potentially liable for any monetary judgment entered against the sheriff and the detention officers; and (4) the State did not have, with respect to a sheriff, the minimum degree of control required for Eleventh Amendment immunity. Boyd v. Robeson County, 169 N.C. App. 460, 621 S.E.2d 1 (2005), cert. denied, 359 N.C. 629, 615 S.E.2d 866 (2005).

Cited in Taylor v. Town of Garner, 204 N.C. App. 300, 694 S.E.2d 206 (2010), review denied, 364 N.C. 602, 705 S.E.2d 337, 2010 N.C. LEXIS 888 (2010).

Opinions of Attorney General

Inspection of ABC licensed business. - A mutual aid agreement is not required for an Alcohol Law Enforcement Officer to ask for the assistance of municipal officers in conducting an inspection of an ABC licensed business within the territorial jurisdiction of the municipality. See opinion of Attorney General to Chief George L. Sweat, - N.C.A.G. - (July 19, 1994).

§ 160A-288.3: Expired.

Editor's Note. - A previous section designated as G.S. 160A-288.3, pertaining to assistance by out-of-state law enforcement officers and rules, expired pursuant to its own terms, based on Session Laws 2011-316, s. 2. The text of the older section appeared virtually the same in the section as enacted by Session Laws 2019-109, s. 1, except for its effective date, applicability, and expiration provisions appearing in former subsection (g), which provided: "This section becomes effective January 1, 2020, applies to all intergovernmental law enforcement agreements entered into on or after that date, and expires October 1, 2020." The section has been set out as expired pursuant to its own terms, effective October 1, 2020.


§ 160A-288.4. Police chief may establish volunteer school safety resource officer program.

  1. The chief of police of a local police department or of a county police department may establish a volunteer school safety resource officer program to provide nonsalaried special law enforcement officers to serve as school safety resource officers in public schools. To be a volunteer in the program, a person must have prior experience as either (i) a sworn law enforcement officer or (ii) a military police officer with a minimum of two years' service. If a person with experience as a military police officer is no longer in the armed services, the person must also have an honorable discharge. A program volunteer must receive training on research into the social and cognitive development of elementary, middle, and high school children and must also meet the selection standards and any additional criteria established by the chief of police.
  2. Each volunteer shall report to the chief of police and shall work under the direction and supervision of the chief of police or the chief's designee when carrying out the volunteer's duties as a school safety resource officer. No volunteer may be assigned to a school as a school safety resource officer until the volunteer has updated or renewed the volunteer's law enforcement training and has been certified by the North Carolina Criminal Justice Education and Training Standards Commission as meeting the educational and firearms proficiency standards required of persons serving as criminal justice officers. A volunteer is not required to meet the physical standards required by the North Carolina Criminal Justice Education and Training Standards Commission but must have a standard medical exam to ensure the volunteer is in good health. A person selected by the chief of police to serve as a volunteer under this section shall have the power of arrest while performing official duties as a volunteer school safety resource officer.
  3. The chief of police may enter into an agreement with the local board of education to provide volunteer school safety resource officers who meet both the criteria established by this section and the selection and training requirements set by the chief of police of the municipality or county in which the schools are located. The chief of police shall be responsible for the assignment of any volunteer school safety resource officer assigned to a public school and for the supervision of the officer.
  4. There shall be no liability on the part of and no cause of action shall arise against a volunteer school safety resource officer, the chief of police or employees of the local law enforcement agency supervising a volunteer school safety officer, or the public school system or its employees for any good-faith action taken by them in the performance of their duties with regard to the volunteer school safety resource officer program established pursuant to this section.

History

(2013-360, s. 8.45(f).)

§ 160A-289. Training and development programs for law enforcement.

A city shall have authority to plan and execute training and development programs for law-enforcement agencies, and for that purpose may

  1. Contract with other cities, counties, and the State and federal governments and their agencies;
  2. Accept, receive, and disburse funds, grants and services;
  3. Create joint agencies to act for and on behalf of participating counties and cities;
  4. Make applications for, receive, administer, and expend federal grant funds; and
  5. Appropriate and expend available tax or nontax funds.

History

(1969, c. 1145, s. 3; 1971, c. 698, s. 1; c. 896, s. 4.)

Editor's Note. - This section was enacted as G.S. 160A-288. It was renumbered as G.S. 160A-289 by Session Laws 1971, c. 896, s. 4.

CASE NOTES

Power to Send Policemen to Youth Development Center. - The explicit power of a municipality to appoint and employ police contemplates that the persons so engaged be qualified and competent, and therefore a municipality has implied authority, exercisable within the discretion of its governing body, to send its policemen to a police youth development center to make proper expenditures for this purpose. Green v. Kitchin, 229 N.C. 450, 50 S.E.2d 545 (1948), decided prior to the enactment of this section, and commented on in 27 N.C.L. Rev. 500 (1949).


§ 160A-289.1. Resources to protect the public.

Subject to the requirements of G.S. 7A-41, 7A-44.1, 7A-64, 7A-102, 7A-133, and 7A-498.7, a city may appropriate funds under contract with the State for the provision of services for the speedy disposition of cases involving drug offenses, domestic violence, or other offenses involving threats to public safety. Nothing in this section shall be construed to obligate the General Assembly to make any appropriation to implement the provisions of this section. Further, nothing in this section shall be construed to obligate the Administrative Office of the Courts or the Office of Indigent Defense Services to maintain positions or services initially provided for under this section.

History

(1999-237, s. 17.17(c); 2000-67, s. 15.4(f); 2001-424, s. 22.11(f).)

CASE NOTES

Cited in State v. McLean, 251 N.C. App. 850, 796 S.E.2d 804 (2017).


§ 160A-289.2. Neighborhood crime watch programs.

A city may establish neighborhood crime watch programs within the city to encourage residents and business owners to promote citizen involvement in securing homes, businesses, and personal property against criminal activity and to report suspicious activities to law enforcement officials.

History

(2006-181, s. 2.)

Cross References. - As to harassment of participants in neighborhood crime watch programs, see G.S. 14-226.2.

As to the establishment of neighborhood crime watch programs, see G.S. 153A-212.2.


§ 160A-290: Reserved for future codification purposes.

ARTICLE 14. Fire Protection.

Sec.

§ 160A-291. Firemen appointed.

A city is authorized to appoint a fire chief; to employ other firemen; to establish, organize, equip, and maintain a fire department; and to prescribe the duties of the fire department.

History

(1917, c. 136, subch. 8, s. 1; C.S., s. 2801; 1969, c. 1065, s. 3; 1971, c. 698, s. 1.)

CASE NOTES

Editor's Note. - Many of the cases cited below were decided under former similar provisions.

Organization and operation of a fire department is a governmental, not a private or proprietary function. Great Am. Ins. Co. v. Johnson, 257 N.C. 367, 126 S.E.2d 92 (1962).

City Not Required to Provide Fire Protection. - While a city is allowed to provide fire protection as a municipal service, it is not required by statute to provide such protection or to pay another for the provision of fire protection. Orange Water & Sewer Auth. v. Town of Carrboro, 58 N.C. App. 676, 294 S.E.2d 757, cert. denied, 307 N.C. 127, 297 S.E.2d 400 (1982).

No Liability for Failure to Furnish Adequate Pressure or Service. - The maintenance of a fire department for extinguishing fire without cost to the property owner is a governmental function, and there is no liability for failure to provide adequate pressure or service in extinguishing a fire. Howland v. City of Asheville, 174 N.C. 749, 94 S.E. 524 (1917).

The power to regulate and prevent fire is governmental, and a failure to exercise this power does not subject a city to action for negligence which causes loss by fire. Harrington v. Town of Greenville, 159 N.C. 632, 75 S.E. 849 (1912).

Liability for Negligence. - A city, in the absence of statutory provisions to the contrary, is not liable for any damage occasioned by the negligence of its fire department. Mack v. City Water Works, 181 N.C. 383, 107 S.E. 244 (1921).

The extinguishment of fires is a function which a municipal corporation undertakes in its governmental capacity, and in connection with which, in the absence of statutory provision to the contrary, it incurs no civil liability, either for inadequacy in equipment or for the negligence of its employees. Seales v. City of Winston-Salem, 189 N.C. 469, 127 S.E. 543 (1925); Mabe v. City of Winston-Salem, 190 N.C. 486, 130 S.E. 169 (1925).

As to liability for injuries to firemen under former provisions, see Peterson v. City of Wilmington, 130 N.C. 76, 40 S.E. 853 (1902).

Liability of City for Hydrant Fees. - Even absent statutory or express contractual liability to pay another for fire protection, justice and equity require a city to pay fire hydrant fees to a water and sewer authority where the authority intended to maintain hydrants for the city's use, the city granted a 60-year franchise to the authority to install and maintain hydrants, free service was explicitly proscribed, the city knew of the hydrant charges, and the city paid such charges until the rate was increased. The law implies a promise by the city to pay for such service. Otherwise, it would be unjustly enriched at the expense of the authority. Orange Water & Sewer Auth. v. Town of Carrboro, 58 N.C. App. 676, 294 S.E.2d 757, cert. denied, 307 N.C. 127, 297 S.E.2d 400 (1982).


§ 160A-292. Duties of fire chief.

Where not otherwise prescribed, the duties of the fire chief shall be to preserve and care for fire apparatus, have charge of fighting and extinguishing fires and training the fire department, seek out and have corrected all places and conditions dangerous to the safety of the city and its citizens from fire, and make annual reports to the council concerning these duties. If these duties include State Building Code enforcement, they shall follow the provisions as defined in G.S. 143-151.13.

History

(1969, c. 1065, s.3; 1971, c. 698, s. 1; 1989, c. 681, s. 13.)

CASE NOTES

Scope of Liability. - A fire chief is a public official and, as such, his governmental immunity defense, in his official capacity, is waived to the extent of insurance coverage purchased by the town he serves; however, not he but the town is liable for the acts of ordinary negligence of its public officials to the extent it has waived its immunity by purchasing insurance. Willis v. Town of Beaufort, 143 N.C. App. 106, 544 S.E.2d 600 (2001).

Employment Contract Serves Public Purpose. - Employment and extension agreements served a public purpose pursuant to N.C. Const. art. V, § 2(7) because by contracting to retain the employee for an extended period of time, the employer ensured that it would, for several years, have the service of a qualified fire chief without fear that the fire chief would leave the employer for a better opportunity; the employment and retention of a qualified fire chief to execute the duties contained in G.S. 160A-292 involves a reasonable connection with the convenience and necessity of a municipality, and the employment of a fire chief benefits the public generally, not just the fire chief or special interests, because the fire chief is responsible for maintaining the safety of the city and its citizens from fire. Elliott v. Enka-Candler Fire & Rescue Dep't, Inc., 213 N.C. App. 160, 713 S.E.2d 132 (2011).

Fallen Power Line - The city did not owe a special duty to a cable television repairman who was electrocuted by a fallen unmarked power line, and as plaintiff did not allege any intentional misconduct on the part of the city which would survive application of the public duty doctrine, the city was immune to liability. Vanasek v. Duke Power Co., 132 N.C. App. 335, 511 S.E.2d 41 (1999).


§ 160A-293. Fire protection outside city limits; immunity; injury to firemen.

  1. A city may install and maintain water mains, pipes, hydrants, buildings and equipment outside its corporate limits and may send its firemen and equipment outside its corporate limits to provide fire protection to rural or unincorporated areas pursuant to agreements between the city and the county, or between the city and the owner of the property to be protected. Counties are hereby authorized to enter into these agreements and to make from tax funds any payments agreed upon for rural fire protection.
  2. No city or any officer or employee thereof shall be held to answer in any civil action or proceeding for failure or delay in answering calls for fire protection outside the corporate limits, nor shall any city be held to answer in any civil action or proceeding for the acts or omissions of its officers or employees in rendering fire protection services outside its corporate limits.
  3. Any employee of a city fire department, while engaged in any duty or activity outside the corporate limits of the city pursuant to orders of the fire chief or council, shall have all of the jurisdiction, authority, rights, privileges, and immunities, including coverage under the workers' compensation laws, which they have within the corporate limits of the city.

History

(1919, c. 244; C.S., s. 2804; 1941, c. 188; 1947, c. 669; 1949, c. 89; 1971, c. 698, s. 1; 1991, c. 636, s. 3.)

CASE NOTES

Editor's Note. - Many of the cases cited below were decided under former similar provisions including G.S. 160-238.

A city's purchase of liability insurance does not deprive it of immunity under subsection (b). Askew Kawasaki, Inc. v. City of Elizabeth City, 124 N.C. App. 453, 477 S.E.2d 85 (1996).

Agreement to Furnish Fire Protection as Compensation for Easement Authorized. - A municipality has the authority to compensate landowners for a water and sewer line easement across a tract of land located outside the municipal limits by an agreement to furnish fire protection for any buildings located on such tract. Valevais v. City of New Bern, 10 N.C. App. 215, 178 S.E.2d 109 (1970);decided under former G.S. 160-238.

Agreement Does Not Constitute Waiver of Governmental Immunity. - An agreement by a municipality to furnish fire protection for property lying outside the municipality as compensation for a water line and sewer easement across such property does not constitute a waiver of the municipality's governmental immunity with respect to torts committed in the maintenance or operation of its fire department. Valevais v. City of New Bern, 10 N.C. App. 215, 178 S.E.2d 109 (1970);decided under former G.S. 160-238.

Profit Does Not Make Municipality's Function Proprietary. - The fact that a water and sewer easement obtained by a municipality in exchange for its promise to furnish fire protection permitted the municipality to sell water at a profit did not make the furnishing of such fire protection a proprietary rather than a governmental function. Valevais v. City of New Bern, 10 N.C. App. 215, 178 S.E.2d 109 (1970);decided under former G.S. 160-238.

Failure to Promptly Respond to Call from Outside Municipal Limits. - Although a municipality contracted to furnish fire protection for property of plaintiffs lying outside municipal limits, alleged failure of members of the municipal fire department to respond promptly to a call for assistance in fighting a fire upon such property would constitute a negligent omission, not a breach of contract, for which the municipality had governmental immunity. Valevais v. City of New Bern, 10 N.C. App. 215, 178 S.E.2d 109 (1970);decided under former G.S. 160-238.

Fire Department's Alleged Role as 911 Dispatcher in Relation to Accident Where Decedent Burned to Death. - Trial court properly denied a city's summary judgment motion pursuant to G.S. 1A-1, N.C. R. Civ. P. 56, in a wrongful death action; there was an issue of fact on whether the city was entitled to immunity pursuant to G.S. 160A-293(b), as it was unclear whether the city fire department also acted as a 911 dispatcher in relation to an accident in which the decedent was burned to death. Williams v. Scotland County, 167 N.C. App. 105, 604 S.E.2d 334 (2004), cert. denied, 359 N.C. 327, 611 S.E.2d 168 (2005).

Department Not Negligent. - Where the fire department's alleged acts of negligence could not fairly be characterized as either a "failure" or a "delay" under the statute in answering plaintiffs' 911 call, this section was inapplicable to the circumstances set forth in plaintiffs' complaint. Davis v. Messer, 119 N.C. App. 44, 457 S.E.2d 902 (1995), overruled on other grounds, Willis v. Town of Beaufort, 143 N.C. App. 106, 544 S.E.2d 600 (N.C. Ct. App. 2001).

Immunity of Municipalities. - While this statute establishes immunity for a municipality in certain circumstances, its purview is limited only to the municipality and not to officers and employees thereof. Davis v. Messer, 119 N.C. App. 44, 457 S.E.2d 902 (1995), overruled on other grounds, Willis v. Town of Beaufort, 143 N.C. App. 106, 544 S.E.2d 600 (N.C. Ct. App. 2001).

Opinions of Attorney General

Editor's Note. - Many of the opinions cited below were decided under former similar provisions.

Town May Furnish Fire Protection for Property Outside Its Corporate Limits. - See opinion of Attorney General to Mr. E.M. Johnson, Pembroke Town Attorney, 40 N.C.A.G. 473 (1969), issued under former statutory provisions.

§ 160A-294. Loss of rural fire employment.

  1. Whenever a city annexes any territory under Parts 2 or 3 of Article 4A of this Chapter, and because of the annexation the rural fire department must terminate the employment of any full-time employee, then the annexing city must take one of the three actions listed below with respect to any person who has been in such full-time employment for two years or more at the time of adoption of the resolution of intent:
    1. The annexing city may offer employment without loss of salary or seniority and place the person in a position as near as possible in type to the position that was held in the rural fire department; or
    2. The annexing city may offer employment in some other department of the city at a comparable salary and seniority; or
    3. The city may choose to pay to the person a sum equal to the person's salary for one year as the equivalent of severance pay. For the purpose of this subsection, the person's salary was his total salary with the rural fire department for the 12-month period ending on the last pay period before the resolution of consideration was adopted, plus any increased salary due to reasonable cost-of-living increases and bona fide promotions; provided that if no resolution of consideration was required to be adopted because of either G.S. 160A-37(j) or G.S. 160A-49(j), or because the resolution of intent was adopted prior to July 1, 1984, the person's salary was his total salary with the rural fire department for the 12-month period ending on the last pay period before the resolution of intent was adopted, plus any increased salary due to reasonable cost-of-living increases and bona fide promotions.
  2. This section is effective with respect to all annexations where an annexation ordinance is adopted on or after January 1, 1983, except that it is also effective with respect to all annexations where an annexation ordinance was adopted before January 1, 1983, but on January 1, 1983, the annexation ordinance:
    1. Was under review under G.S. 160A-38 or G.S. 160A-50, and a stay is in effect under G.S. 160A-38(e) or G.S. 160A-50(e); or
    2. Was subject to the Voting Rights Act of 1965 but had not yet been approved under that act.

History

(1983, c. 636, s. 25.)

Editor's Note. - Session Laws 1983, c. 636, s. 37.1, as amended by Session Laws 1983, c. 768, s. 25, provided: "The General Assembly intends by this act to repeal all acts and provisions of acts that modify the application to particular cities and towns of Parts 2 and 3 of Article 4A of Chapter 160A of the General Statutes or that exempt particular cities or towns from the application of either or both of those two Parts. Therefore, all such acts and provisions of acts, even if not specifically listed and repealed in Sections 26 through 35.4 of this act, are repealed. Neither this section nor Sections 26 through 35.4 of this act shall affect any annexation in progress on the dates of ratification of this act under any of the repealed or amended sections."

Session Laws 1983, c. 636, s. 38, provided: "This act shall be effective with respect to all annexations where resolutions of intent are adopted on or after the date of ratification of this act, except that Sections 36 and 37 shall become effective with respect to all annexations where resolutions of intent are adopted on or after July 1, 1984, Sections 25.1 through 35.5 and Section 37.1 are effective upon ratification and Section 25 shall become effective as provided in that section. No annexation where a resolution of intent was adopted prior to the date of ratification of this act shall be affected by this act except as provided in Section 25."

The act was ratified June 29, 1983.

G.S. 160A-37, 160A-38, 160A-49, and 160A-50, referred to in subdivisons (a)(3) and (b)(1), were repealed by Session Laws 2011-396, ss. 1 and 7, effective July 1, 2011.

§ 160A-294.1. Honoring deceased or retiring firefighters.

A fire department established by a municipality pursuant to this Article may, in the discretion of the governing body of the municipality, award to a retiring firefighter or a surviving relative of a deceased firefighter, upon request, the fire helmet of the deceased or retiring firefighter, at a price determined in a manner authorized by the governing body. The price may be less than the fair market value of the helmet.

History

(2003-145, s. 2.)

Cross References. - As to counties honoring deceased or retiring firefighters, see G.S. 153A-236.


ARTICLE 14A. Municipal Firefighters.

Sec.

§ 160A-295. (Contingent effective date - see Editor's note) Definitions.

As used in this Article, the following terms mean:

  1. Compensatory time. - Time off with regular compensation in lieu of immediate overtime premium pay when a fire department, under certain conditions, compensates the firefighter for overtime hours worked.
  2. Firefighter. - A full-time, paid employee of an employer, maintaining a fire department certified by the North Carolina Department of Insurance, who is actively serving in a position with assigned primary duties and responsibilities for the prevention, detection, and suppression of fire.
  3. Supervisory personnel. - An individual employed by a public safety employer who (i) has the authority in the interest of the employer to hire, direct, assign, promote, reward, transfer, furlough, lay off, recall, suspend, discipline, or remove public safety officers, or to adjust their grievances or effectively recommend an adjustment, provided that the exercise of the authority is not merely routine or clerical in nature, but requires consistent exercise of independent judgment; and (ii) devotes a majority of time at work exercising that authority.
  4. Trade time. - The time one individual substitutes for another during scheduled work hours in performance of work in the same capacity when two individuals are employed in any occupation by the same fire department, as agreed to solely at the individual's option and with the approval of the management of the fire department. The hours worked are excluded by the employer in the calculation of the hours for which the substituting employee would otherwise be entitled to overtime compensation under this Article. Where one employee substitutes for another, the employee being substituted for is credited as if he or she had worked his or her normal work schedule for that shift.

History

(2008-151, s. 1.)

Editor's Note. - Session Laws 2008-151, s. 2, makes this Article effective when 29 U.S.C. § 207(k) is repealed or is no longer enforceable.

§ 160A-295.1. (Contingent effective date - see Editor's note) Municipal firefighters; hours of labor; overtime pay.

  1. A firefighter or a member of a fire department who provides emergency medical services, other than supervisory personnel, and who is required or permitted to work, on average, more than 53 hours in a seven-day work period or up to the number of hours that bears the same ratio to 212 hours as the number of days in the work period bears to 28 days is considered to have worked overtime. A person included under this subsection is entitled to be compensated for the overtime as provided by subsection (d) of this section.
  2. A member of a fire department, other than supervisory personnel, who does not fight fires or provide emergency medical services, including a mechanic, clerk, investigator, inspector, fire marshal, fire alarm dispatcher, or maintenance worker, and who is required or permitted to average more hours in a week than the number of hours in a normal workweek of the majority of the employees of the municipality other than firefighters, emergency medical service personnel, and police officers, is considered to have worked overtime. A person included under this subsection is entitled to be compensated for the overtime as provided by subsection (d) of this section.
  3. In computing the hours worked in a workweek or the average number of hours worked in a workweek during a work cycle of a firefighter or other member of a fire department covered by this section, all hours are counted during which the firefighter or other member of a fire department is required to remain on call on the employer's premises or so close to the employer's premises that the person cannot use those hours effectively for that person's own purposes. Hours in which the firefighter or other member of a fire department is required only to leave a telephone number at which that person may be reached or to remain accessible by radio or pager are not to be used in computing the hours worked. In computing the hours in a workweek or the average number of hours in a workweek during a work cycle of a firefighter or a member of a fire department who provides emergency medical services, vacation, sick time, holidays, time in lieu of holidays, compensatory time, or trade time may be excluded as hours worked.
  4. A firefighter or other member of a fire department may be required or permitted to work overtime. A firefighter, other than supervisory personnel, who is required or permitted to work overtime as provided by subsection (a) of this section is entitled to be paid overtime for the excess hours worked without regard to the number of hours worked in any one week of the work cycle. Overtime hours as computed under this Article are to be paid at a rate equal to one and one-half times the compensation paid to the firefighter or member of the fire department for regular hours. To the extent that the municipality complies with the requirements of section 7(o) of the Fair Labor Standards Act (29 U.S.C. § 207(o)), it may compensate firefighters for their overtime hours with compensatory time in lieu of pay. A member of a fire department included under subsection (b) of this section shall be paid overtime in the same manner as other employees of the municipality entitled to overtime pay, excluding firefighters.

History

(2008-151, s. 1.)

Editor's Note. - Session Laws 2008-151, s. 2, makes this Article effective when 29 U.S.C. § 207(k) is repealed or is no longer enforceable.

§ 160A-295.2. (Contingent effective date - see Editor's note) Authority of Department of Labor.

The Department of Labor shall have the authority to enforce the provisions of this Article to the extent that these provisions are not subject to enforcement under the Fair Labor Standards Act (29 U.S.C. § 207).

History

(2008-151, s. 1.)

Editor's Note. - Session Laws 2008-151, s. 2, makes this Article effective when 29 U.S.C. § 207(k) is repealed or is no longer enforceable.

§ 160A-295.3. (Contingent effective date - see Editor's note) Applicability.

This Article applies only to full-time paid firefighters and other full-time paid members of a fire department of a municipality that employs five or more employees in fire protection during the workweek.

History

(2008-151, s. 1.)

Editor's Note. - Session Laws 2008-151, s. 2, makes this Article effective when 29 U.S.C. § 207(k) is repealed or is no longer enforceable.

ARTICLE 15. Streets, Traffic and Parking.

Sec.

§ 160A-296. Establishment and control of streets; center and edge lines.

  1. A city shall have general authority and control over all public streets, sidewalks, alleys, bridges, and other ways of public passage within its corporate limits except to the extent that authority and control over certain streets and bridges is vested in the Board of Transportation. General authority and control includes but is not limited to all of the following:
    1. The duty to keep the public streets, sidewalks, alleys, and bridges in proper repair.
    2. The duty to keep the public streets, sidewalks, alleys, and bridges open for travel and free from unnecessary obstructions.
    3. The power to open new streets and alleys, and to widen, extend, pave, clean, and otherwise improve existing streets, sidewalks, alleys, and bridges, and to acquire the necessary land therefor by dedication and acceptance, purchase, or eminent domain.
    4. The power to close any street or alley either permanently or temporarily.
    5. The power to regulate the use of the public streets, sidewalks, alleys, and bridges.
    6. The power to regulate, license, and prohibit digging in the streets, sidewalks, or alleys, or placing therein or thereon any pipes, poles, wires, fixtures, or appliances of any kind either on, above, or below the surface. To the extent a municipality is authorized under applicable law to impose a fee or charge with respect to activities conducted in its rights-of-way, the fee or charge must apply uniformly and on a competitively neutral and nondiscriminatory basis to all comparable activities by similarly situated users of the rights-of-way. No fee or charge for activities conducted in the right-of-way shall be assessed on businesses listed in G.S. 160A-206(b), except the following:
      1. Fees to recover any difference between a city's right-of-way management expenses related to the activities of businesses listed in G.S. 160A-206(b) and distributions under Article 5 of Chapter 105 of the General Statutes.
      2. Payments under agreements subject to G.S. 62-350.
    7. The power to provide for lighting the streets, alleys, and bridges of the city.
    8. The power to grant easements in street rights-of-way as permitted by G.S. 160A-273.
  2. A city with a population of 250,000 or over according to the most recent decennial federal census may also exercise the power granted by subdivision (a)(3) of this section within its extraterritorial planning jurisdiction. Before a city makes improvements under this subsection, it shall enter into a memorandum of understanding with the Department of Transportation to provide for maintenance.
  3. Repealed by Session Laws 1991, c. 530, s. 6, effective January 1, 1992.

History

(1917, c. 136, subch. 5, s. 1; subch. 10, s. 1; 1919, cc. 136, 237; C.S., ss. 2787, 2793; 1925, c. 200; 1963, c. 986; 1971, c. 698, s. 1; 1973, c. 507, s. 5; 1979, c. 598; 1991, c. 530, s. 6; 2001-261, s. 1; 2006-151, s. 14; 2016-103, s. 9(a).)

Local Modification. - City of Monroe: 1985, c. 177; 2000-35, s. 1; town of Cary: 1993, c. 137, s. 3.

Editor's Note. - Session Laws 2016-103, s. 9(c), provides: "A city may not impose a fee or charge on businesses listed in G.S. 160A-206(b) for activities conducted in the city's right-of-way, except fees or charges not exceeding those in effect as of June 1, 2016, or payments under agreements subject to G.S. 62-350."

Session Laws 2016-103, s. 9(d), provides: "Section (c) of this section is effective when it becomes law [July 22, 2016] and is repealed effective July 1, 2017."

Effect of Amendments. - Session Laws 2006-151, s. 14, effective January 1, 2007, in subsection (a), made minor punctuation changes throughout and substituted "to all of the following" for "to" at the end of the introductory paragraph; added the last sentence in subdivision (a)(6); and deleted "and" from the end of subdivision (a)(7).

Session Laws 2016-103, s. 9(a), effective July 1, 2017, added the last sentence in subdivision (a)(6); and added subdivisions (a)(6)(a) and (a)(6)(b).

CASE NOTES

I. IN GENERAL.

Editor's Note. - Many of the cases cited below were decided under former similar provisions.

A city has both inherent power and authority by general statute over its streets for the protection of its citizens, which is not taken from it by G.S. 62-50, conferring like powers upon the Utilities Commission. City of Durham v. Southern Ry., 185 N.C. 240, 117 S.E. 17 (1923), aff'd, 266 U.S. 178, 45 S. Ct. 51, 69 L. Ed. 231 (1924).

Title of Abutting Owner Subject to City's Powers. - The purchaser of a lot abutting a public street, whatever the origin of the street, takes title subject to the authority of the city to control and limit its use and to abandon or close it under lawful procedure. Wofford v. North Carolina State Hwy. Comm'n, 263 N.C. 677, 140 S.E.2d 376, cert. denied, 382 U.S. 822, 86 S. Ct. 50, 15 L. Ed. 2d 67 (1965).

Right to Devote Sides of Streets to Purposes Other Than Driving. - While it is the duty of a municipal corporation to use reasonable care to keep its streets in a safe condition to drive upon, it has the right to devote the sides of the streets to other useful public purposes, provided it leaves an unobstructed driveway of ample width. It may construct sidewalks for a higher grade and gutters of a lower grade than the driveway, place curbing on the line of the gutters, erect hydrants and authorize the erection of hitching posts and stepping stones as well as poles to support the wires of telegraph and telephone lines. Rollins v. City of Winston-Salem, 176 N.C. 411, 97 S.E. 211 (1918).

No Federal Preemption of Railroad Grade Crossing Regulation. - The exercise by the State of its power to provide for the safety of its citizens with respect to grade crossings of its streets by a railroad company is within its police powers, and may be exercised by municipal corporations under authority conferred on them, and not being delegated to the national government, it is not affected by federal legislation upon interstate commerce or the Federal Transportation Act. City of Durham v. Southern Ry., 185 N.C. 240, 117 S.E. 17 (1923), aff'd, 266 U.S. 178, 45 S. Ct. 51, 69 L. Ed. 231 (1924).

As to city's right to require railroad company to construct an underpass, see City of Durham v. Southern Ry., 185 N.C. 240, 117 S.E. 17 (1923), aff'd, 266 U.S. 178, 45 S. Ct. 51, 69 L. Ed. 231 (1924).

As to right of city to require railroads to construct bridges over their viaducts along streets running over their tracks, see Atlantic Coastline R.R. v. City of Goldsboro, 155 N.C. 356, 71 S.E. 514 (1911), aff'd, 232 U.S. 548, 34 S. Ct. 364, 58 L. Ed. 721 (1914); Powell v. Seaboard Air Line Ry., 178 N.C. 243, 100 S.E. 424 (1919).

The power of municipal corporations to regulate the use of public streets arises through a legislative grant of authority and is subject to the authority of the General Assembly to regulate the use and control of public roads and streets. Town of Emerald Isle ex rel. Smith v. State, 320 N.C. 640, 360 S.E.2d 756 (1987).

As to city's right to acquire and operate tow-in vehicles, see S. & R. Auto & Truck Serv., Inc. v. City of Charlotte, 268 N.C. 374, 150 S.E.2d 743 (1966).

As to the statutory obligations of the State Highway Commission (now Board of Transportation), see Milner Hotels, Inc. v. City of Raleigh, 271 N.C. 224, 155 S.E.2d 543 (1967). See G.S. 160A-297.

Private Store Not Responsible for Traffic Control. - The duty to provide for traffic control on public streets in a municipality is charged by statute to the city. Defendant corporation, an outlet store, had no duty to provide for a crossing guard, warning lights or other traffic control devices over a city street, nor any duty to warn of the hazard of jaywalking across such a busy thoroughfare. Laumann v. Plakakis, 84 N.C. App. 131, 351 S.E.2d 765 (1987).

A town does not have the exclusive and ultimate ability to determine the use of streets and beaches within a municipality. Town of Emerald Isle ex rel. Smith v. State, 320 N.C. 640, 360 S.E.2d 756 (1987).

Including Road on Town Map Insufficient Evidence of Intent to Accept. - Simply including a road on the town map is insufficient evidence of the town's intent to accept the road for public use; to accept the road for public use, the proper authorities must accept the offer in some recognized legal manner. Wiggins v. Short, 122 N.C. App. 322, 469 S.E.2d 571 (1996).

Maintenance of Road May Provide Evidence of Intent to Accept. - Town or city maintenance of a roadway may be some evidence of acceptance of the road for public use; however, evidence that the town maintained the road for purposes of its water drain easement and not for the public generally was competent to rebut the conclusion that it was a public road. Wiggins v. Short, 122 N.C. App. 322, 469 S.E.2d 571 (1996).

Applied in Lonon v. Talbert, 103 N.C. App. 686, 407 S.E.2d 276 (1991); Blackwell v. Hatley, 202 N.C. App. 208, 688 S.E.2d 742 (2010); Parker v. Town of Erwin, 243 N.C. App. 84, 776 S.E.2d 710 (2015).

Cited in General Greene Inv. Co. v. Greene, 48 N.C. App. 29, 268 S.E.2d 810 (1980); Homebuilders Ass'n v. City of Charlotte, 336 N.C. 37, 442 S.E.2d 45 (1994); Moore v. City of Creedmoor, 120 N.C. App. 27, 460 S.E.2d 899 (1995); Williams v. City of Durham, 123 N.C. App. 595, 473 S.E.2d 665 (1996); Strickland v. City of Raleigh, 204 N.C. App. 176, 693 S.E.2d 214 (2010); Barris v. Town of Long Beach, 208 N.C. App. 718, 704 S.E.2d 285 (2010); Kennedy v. Polumbo, 209 N.C. App. 394, 704 S.E.2d 916 (2011).

II. DUTY TO KEEP STREETS, ETC., IN REPAIR.

Duty to Maintain Streets in Reasonably Safe Condition. - It is the positive duty of the corporate authorities of a town to keep the streets, including the sidewalks, in "proper repair," that is, in such condition as that the people passing and repassing over them might at all times do so with reasonable ease, speed and safety. Bunch v. Edenton, 90 N.C. 431 (1886); Fitzgerald v. Concord, 140 N.C. 110, 52 S.E. 309 (1905).

Streets must be constructed in a reasonably safe manner, and to this end ordinary care must be exercised at all times. Willis v. City of New Bern, 191 N.C. 507, 132 S.E. 286 (1926); Hunt v. City of High Point, 226 N.C. 74, 36 S.E.2d 694 (1946).

Streets shall be kept in proper repair to the extent that this can be accomplished by proper and reasonable care and continuing supervision. Willis v. City of New Bern, 191 N.C. 507, 132 S.E. 286 (1926); Hunt v. City of High Point, 226 N.C. 74, 36 S.E.2d 694 (1946).

The governing authorities of a town or city have a duty imposed upon them by law to exercise ordinary care to maintain its streets and sidewalks in a condition reasonably safe for those who use them in a proper manner. Faw v. Town of N. Wilkesboro, 253 N.C. 406, 117 S.E.2d 14 (1960); Mosseller v. City of Asheville, 267 N.C. 104, 147 S.E.2d 558 (1966).

While a city is not an insurer of the safety of one who uses its streets and sidewalks, it is under a duty to use due care to keep its streets and sidewalks in a reasonably safe condition for the ordinary use thereof. Mosseller v. City of Asheville, 267 N.C. 104, 147 S.E.2d 558 (1966).

The exercise of the due care in keeping streets and public ways safe and in suitable condition is a positive obligation imposed upon a municipal corporation. Kaplan v. City of Winston-Salem, 21 N.C. App. 168, 203 S.E.2d 653, rev'd on other grounds, 286 N.C. 80, 209 S.E.2d 743 (1974).

The duty to maintain sidewalks and streets in a safe condition carries with it a correlative duty to perform these maintenance tasks in a competent manner or suffer the consequences of negligently inflicted damage which is foreseeable. Kaplan v. City of Winston-Salem, 21 N.C. App. 168, 203 S.E.2d 653, rev'd on other grounds, 286 N.C. 80, 209 S.E.2d 743 (1974).

While the city is not an insurer of the condition of its streets, this section does subject the defendant city to liability for the negligent failure to maintain its streets in a reasonably safe condition. Stancill v. City of Washington, 29 N.C. App. 707, 225 S.E.2d 834 (1976).

This section imposes upon the municipality the positive duty to maintain its streets in a reasonably safe condition for travel. Stancill v. City of Washington, 29 N.C. App. 707, 225 S.E.2d 834 (1976).

Duty to Exercise Continuing Supervision over Streets. - It is the duty of a city to exercise a reasonable and continuing supervision over its streets, in order that it may know their condition, and it is held to have knowledge of a defect which such inspection would have disclosed to it. Mosseller v. City of Asheville, 267 N.C. 104, 147 S.E.2d 558 (1966).

Duty extends to streets dedicated and accepted by the municipality, but not to streets or portions of streets not accepted by it, although dedicated by some individual. Hughes v. Clark, 134 N.C. 457, 46 S.E. 956, 47 S.E. 462 (1904).

Duty to Sidewalks. - The rights, powers, and liability of the municipality extend equally to the sidewalk as to the roadway, for both are parts of the street, and towns and cities are held to the same degree of liability for failure to repair sidewalks as to repair the other part of the street. Bunch v. Edenton, 90 N.C. 431 (1886); Tate v. City of Greensboro, 114 N.C. 392, 19 S.E. 767 (1894); Wolfe v. Pearson, 114 N.C. 621, 19 S.E. 264 (1894); Russell v. Town of Monroe, 116 N.C. 720, 21 S.E. 550, 47 Am. St. R. 823 (1895); Neal v. Town of Marion, 129 N.C. 345, 40 S.E. 116 (1901); Hester v. Traction Co., 138 N.C. 288, 50 S.E. 711 (1905).

A municipality is responsible for the condition of its sidewalks. Dunning v. Forsyth Whse. Co., 272 N.C. 723, 158 S.E.2d 893 (1968).

The duty of keeping its sidewalks in a reasonably safe condition rests primarily on a municipality. Kaplan v. City of Winston-Salem, 21 N.C. App. 168, 203 S.E.2d 653, rev'd on other grounds, 286 N.C. 80, 209 S.E.2d 743 (1974).

The evidence was not sufficient to raise an inference of negligence under this section where the plaintiff's experts testified that the depression in the sidewalk had existed for a number of years, had been at least one-half of an inch for 1-2 years before the accident, and was contrary to the building code but a city employee testified that the records were void of any complaints of defects in the sidewalk; the law with regard to municipalities and maintenance of sidewalks is such that minor defects are not actionable. Desmond v. City of Charlotte, 142 N.C. App. 590, 544 S.E.2d 269 (2001).

Summary judgment should not have been granted to a city in a negligence case because it had a statutory duty to maintain a sidewalk in a reasonably safe manner; there was no evidence that the North Carolina Department of Transportation had agreed to take on maintenance responsibility in this case. Although the city's responsibility to maintain certain streets and bridges was limited, the same was not true for its responsibility to maintain sidewalks. Steele v. City of Durham, 245 N.C. App. 318, 782 S.E.2d 331 (2016).

But one other than the municipality may be held liable for injuries caused by a defect in the sidewalk if he created the defect. Dunning v. Forsyth Whse. Co., 272 N.C. 723, 158 S.E.2d 893 (1968).

Liability of Abutting Owner to Pedestrians for Hazardous Conditions on Sidewalk. - Insofar as pedestrians are concerned, any liability of the owner or occupant of abutting property for hazardous conditions existent upon the adjacent sidewalk is limited to conditions created or maintained by him, and must be predicated upon his negligence in that respect. Dunning v. Forsyth Whse. Co., 272 N.C. 723, 158 S.E.2d 893 (1968).

Structures in Streets Subject to City's Paramount Power and Duty. - Pipes, conduits, rails, and structures erected or constructed in the city streets under a general grant of authority to use the streets therefor are subject to the paramount power and duty of the city to repair, alter, and improve the streets, as the city, in its discretion, may deem proper, and to construct therein sewers and other improvements for the public benefit. City of Raleigh v. Carolina Power & Light Co., 180 N.C. 234, 104 S.E. 462 (1920).

Guarding Against Perilous Places. - Proper repair implies that all bridges, dangerous pits, embankments, dangerous walls, and like perilous places and things very near and adjoining the streets shall be guarded against by proper railings and barriers or other reasonably necessary signals for the protection of the public. Fitzgerald v. Concord, 140 N.C. 110, 52 S.E. 309 (1905); Willis v. City of New Bern, 191 N.C. 507, 132 S.E. 286 (1926); Hunt v. City of High Point, 226 N.C. 74, 36 S.E.2d 694 (1946).

City may contract with a street railroad for repair of the street between the tracks as a consideration for the franchise, and the railroad will be required to repair and keep its part in the same condition as the rest of the street. City of New Bern v. Atlantic & N.C.R.R., 159 N.C. 542, 75 S.E. 807 (1912).

Commissioners' Duty. - This section does not impose on the commissioners the duty to personally work the streets, but it does impose on them a duty to keep them in repair. Although they are allowed discretion, the commissioners are subject to indictment for neglecting to keep public streets in repair. State v. Dickson, 124 N.C. 871, 32 S.E. 961 (1899).

Municipality may be held liable for negligent or wanton failure to keep its streets in proper repair and in a reasonably safe condition. Bowman v. Town of Granite Falls, 21 N.C. App. 333, 204 S.E.2d 239 (1974).

A municipality has a positive duty to maintain its streets in a reasonably safe condition for travel, and negligent failure to do so will render it liable to private action for proximate injury. Bunch v. Town of Edenton, 90 N.C. 431 (1884); Russell v. Town of Monroe, 116 N.C. 720, 21 S.E. 550, 47 Am. St. R. 823 (1895); Neal v. Town of Marion, 129 N.C. 345, 40 S.E. 116 (1901); Fitzgerald v. Concord, 140 N.C. 110, 52 S.E. 309 (1905); Graham v. City of Charlotte, 186 N.C. 649, 120 S.E. 466 (1923); Michaux v. City of Rocky Mount, 193 N.C. 550, 137 S.E. 663 (1927); Speas v. City of Greensboro, 204 N.C. 239, 167 S.E. 807 (1933); Radford v. City of Asheville, 219 N.C. 185, 13 S.E.2d 256 (1941); Waters v. Town of Belhaven, 222 N.C. 20, 21 S.E.2d 840 (1942); Millar v. Town of Wilson, 222 N.C. 340, 23 S.E.2d 42 (1942); Hunt v. City of High Point, 226 N.C. 74, 36 S.E.2d 694 (1946).

Negligent failure to take such measures as ordinary prudence requires to avert injury, where the municipality has actual or imputable knowledge of the dangerous condition, will render municipality liable for injury proximately caused. Hunt v. City of High Point, 226 N.C. 74, 36 S.E.2d 694 (1946).

Municipalities may be liable in tort for failure to maintain their streets in a reasonably safe condition, and they are now required to do so by this section. McClellan v. City of Concord, 16 N.C. App. 136, 191 S.E.2d 430 (1972).

Municipality Cannot Plead Governmental Immunity for Street Damage. - As an exception to the doctrine of governmental immunity, it has been uniformly held in this jurisdiction that municipalities may be held liable in tort for failure to maintain their streets in a reasonably safe condition, and they are now required by statute to do so. Clark v. Scheld, 253 N.C. 732, 117 S.E.2d 838 (1961).

A municipality cannot, with impunity, create in its streets a condition palpably dangerous, neglect to provide the most ordinary means of protection against it, and then avoid liability for proximate injury on the plea of governmental immunity. Hunt v. City of High Point, 226 N.C. 74, 36 S.E.2d 694 (1946); Kaplan v. City of Winston-Salem, 21 N.C. App. 168, 203 S.E.2d 653, rev'd on other grounds, 286 N.C. 80, 209 S.E.2d 743 (1974).

A municipality may not undertake a task of street improvement or repair in a careless or negligent fashion and then seek to escape liability by invoking the privilege of governmental immunity. Kaplan v. City of Winston-Salem, 21 N.C. App. 168, 203 S.E.2d 653, rev'd on other grounds, 286 N.C. 80, 209 S.E.2d 743 (1974).

No Governmental Immunity. - Municipalities in North Carolina have never been immune from civil liability for negligence based upon the failing to keep its streets free of unnecessary obstructions, as in untrimmed shrubs and bushes that obstructed the view of motorists using the streets involved; therefore, in the case at bar defendant had no immunity to waive, and the insolvency of its insurer did not affect its liability. McDonald v. Village of Pinehurst, 91 N.C. App. 633, 372 S.E.2d 733 (1988).

Trial court's denial of the city's motion for summary judgment was affirmed because although the city contended that it was immune from suit under the doctrine of governmental immunity for the claims brought by the mother, and that it had not waived its governmental immunity pursuant to G.S. 160A-485 because it had not purchased liability insurance covering the claims, the mother alleged that the city was negligent in violating G.S. 160A-296, which gave a municipality the authority to regulate the use of its streets and sidewalks and, in addition, imposed a positive duty upon the municipality to keep them in proper repair, in a reasonably safe condition, and free from unnecessary obstructions. G.S. 160A-296(a)(1), (2), and (5). The statute created an exception to the doctrine that a municipality will have immunity from liability for negligence in the performance of a governmental function, and, by reason thereof, the doctrine of governmental immunity had no application to protect a city from liability for a negligent breach of the statutory duties so imposed; moreover, there were genuine issues of material fact as to whether or not the city had actual or implied notice of the obstructions. Beckles-Palomares v. Logan, 202 N.C. App. 235, 688 S.E.2d 758 (2010).

Municipality Is Not Insurer of Condition of Streets. - While it is the duty of the city to keep its streets in such repair that they are reasonably safe for public travel, it is not an insurer of such condition, nor does it warrant that they shall at all times be absolutely safe. A city is only responsible for a negligent breach of duty. Fitzgerald v. Concord, 140 N.C. 110, 52 S.E. 309 (1905).

Liability arises only for a negligent breach of duty. Faw v. Town of N. Wilkesboro, 253 N.C. 406, 117 S.E.2d 14 (1960); Mosseller v. City of Asheville, 267 N.C. 104, 147 S.E.2d 558 (1966).

Actual or Constructive Notice Prerequisite to Recovery. - Notice of a defect in a street, actual or constructive, and a failure to act on the part of the municipality to remedy the situation are prerequisites to recovery in an action involving a municipality. Bowman v. Town of Granite Falls, 21 N.C. App. 333, 204 S.E.2d 239 (1974).

In order to establish responsibility, it is not sufficient to show that a defect existed and that an injury has been caused thereby. It must be further shown that the officers of the town knew, or by ordinary diligence might have discovered, the defect, and that the character of the defect was such that injuries to travellers therefrom might reasonably be anticipated. Jones v. City of Greensboro, 124 N.C. 310, 32 S.E. 675 (1899); Fitzgerald v. Concord, 140 N.C. 110, 52 S.E. 309 (1905); Faw v. Town of N. Wilkesboro, 253 N.C. 406, 117 S.E.2d 14 (1960).

It is necessary for a complaining party to show more than the existence of a defect in the street or sidewalk and the injury; he must also show that the officers of the town or city knew, or by ordinary diligence, might have known of the defect, and that the character of the defect was such that injuries to travellers using its street or sidewalk in a proper manner might reasonably be foreseen. Mosseller v. City of Asheville, 267 N.C. 104, 147 S.E.2d 558 (1966).

Summary judgment was appropriate where the plaintiff failed to offer any evidence that the city had either actual or constructive notice of any alleged defect in its sidewalk, as required to support a negligence action under this section, so as to create a genuine issue of material fact. Willis v. City of New Bern, 137 N.C. App. 762, 529 S.E.2d 691 (2000).

Notice Must Be of Defect Itself. - The notice, actual or implied, of a highway defect causing injuries which a municipality must receive as a condition precedent to liability for those injuries is notice of the defect itself which occasioned the injury, and not merely of conditions naturally productive of that defect and subsequently in fact producing it. Mosseller v. City of Asheville, 267 N.C. 104, 147 S.E.2d 558 (1966).

When Notice Implied. - When observable defects in a highway have existed for a time so long that they ought to have been observed, notice of them is implied. Fitzgerald v. Concord, 140 N.C. 110, 52 S.E. 309 (1905).

Notice of a dangerous condition in a street or sidewalk will be imputed to a town or city if its officers should have discovered it in the exercise of due care. Faw v. Town of N. Wilkesboro, 253 N.C. 406, 117 S.E.2d 14 (1960); Mosseller v. City of Asheville, 267 N.C. 104, 147 S.E.2d 558 (1966).

Implied Notice Usually a Jury Question. - On the question of notice implied from the continued existence of a defect, no definite or fixed rule can be laid down as to the time required, and it is usually a question for the jury on the facts and circumstances of each particular case. Fitzgerald v. Concord, 140 N.C. 110, 52 S.E. 309 (1905).

Notice of Latent Defects. - Notice of latent defects should not be so readily presumed from their continuance as open and obvious defects. Fitzgerald v. Concord, 140 N.C. 110, 52 S.E. 309 (1905).

Foreseeability of Injury Essential to Recovery. - To recover for injuries received from a fall on a defective street, the plaintiff must not only show that the city knew of the defect, but must go further and show that the character of the defect was such that injuries to travellers using its street or sidewalk in a proper manner might reasonably be foreseen. Mosseller v. City of Asheville, 267 N.C. 104, 147 S.E.2d 558 (1966).

Trivial Defects Will Not Make City Liable. - It is not every defect in a street or sidewalk which will render a city liable to a person who falls as a result thereof. Trivial defects, which are not naturally dangerous, will not make the city liable for injuries occasioned thereby. Mosseller v. City of Asheville, 267 N.C. 104, 147 S.E.2d 558 (1966).

Effect of Independent Contributory Cause. - When two causes combine to produce an injury to a traveler on a highway, both of which are in their nature proximate, the one being a culpable defect in the highway, and the other some occurrence for which neither party is responsible, the municipality is liable, provided the injury would not have been sustained but for such defect. Dillon v. City of Raleigh, 124 N.C. 184, 32 S.E. 548 (1889).

Liability for Consequential Damage in Grading Streets. - Where a municipal corporation has authority to grade its streets, it is not liable for consequential damage, unless the work was done in an unskillful and incautious manner. Meares v. Commissioners of Wilmington, 31 N.C. 73 (1848); Salisbury v. Western N.C.R.R., 91 N.C. 490 (1884); Wright v. City of Wilmington, 92 N.C. 156 (1885); Tate v. City of Greensboro, 114 N.C. 392, 19 S.E. 767 (1894); Wolfe v. Pearson, 114 N.C. 621, 19 S.E. 264 (1894); Brown v. Electric Co., 138 N.C. 533, 51 S.E. 62 (1905); Thomason v. Seaboard Airline Ry., 142 N.C. 300, 55 S.E. 198 (1906); Small v. Councilmen of Edenton, 146 N.C. 527, 60 S.E. 413 (1908); Ward v. Commissioners of Buford County, 146 N.C. 534, 60 S.E. 418 (1908), overruled on other grounds, In re Alamance County Court Facilities, 329 N.C. 84, 405 S.E.2d 125 (1991); Jones v. Town of Henderson, 147 N.C. 120, 60 S.E. 894 (1908); Dorsey v. Town of Henderson, 148 N.C. 423, 62 S.E. 547 (1908).

Liability for Damages from Tree Cutting. - Discretionary power of repairing and maintaining a street is vested in the commissioners of a city, and an action for damages caused by cutting of trees in the street, by them, will not lie in favor of an abutting property owner, in the absence of negligence, malice, or wantonness. Tate v. City of Greensboro, 114 N.C. 392, 19 S.E. 767 (1894).

Failure to Provide Reasonable Lighting. - While a city may not be under a legal necessity to light its streets at all, where it does maintain street lights its failure to provide lighting which is reasonably required at a particular place because of the dangerous condition of the street is a negligent failure to discharge its duty to maintain the streets in a reasonably safe condition for travel. Hunt v. City of High Point, 226 N.C. 74, 36 S.E.2d 694 (1946).

No Right in Abutting Owner to Change Street's Condition. - When a street is repaired or changed by a city so as to damage an owner of the fee in the street or to cause a nuisance, the owner has no right to change the condition of the street so as to remove the nuisance or lessen the damage, and such act will subject him to indictment. State v. Wilson, 107 N.C. 865, 12 S.E. 320 (1890).

Ratification of Unauthorized Repair by City. - When an unauthorized person makes an act of repair to streets that might have been done by a city, a ratification by the city will relieve him of any liability as a trespasser. Wolfe v. Pearson, 114 N.C. 621, 19 S.E. 264 (1894).

Although court found that the maintenance of stop signs constituted a discretionary function, thereby entitling city to the defense of governmental immunity, it reversed the lower court's grant of summary judgment in the city's favor where it appeared from the record that the city was covered by a liability insurance policy at the time of the collision at issue, thereby waiving immunity from suit. Cucina v. City of Jacksonville, 138 N.C. App. 99, 530 S.E.2d 353, review denied, 352 N.C. 588, 544 S.E.2d 778 (2000).

III. DUTY TO KEEP STREETS, ETC., FREE FROM OBSTRUCTIONS.

.

Unlike G.S. 160A-298, subdivision (a)(2) of this section creates an affirmative duty of care. Cooper v. Town of Southern Pines, 58 N.C. App. 170, 293 S.E.2d 235 (1982).

Repair Does Not Prove Possession. - City's occasional repair of fence on Housing Authority property did not itself prove the city's intent to possess and control the fence, since these repairs might have reflected no more than the city's statutory duty as a municipality to clear streets and rights-of-way. Petty v. City of Charlotte, 85 N.C. App. 391, 355 S.E.2d 210 (1987), cert. denied, 90 N.C. App. 559, 369 S.E.2d 612 (1988).

"Obstruction". - An "obstruction" can be anything, including vegetation, which renders the public passageway less convenient or safe for use. Cooper v. Town of Southern Pines, 58 N.C. App. 170, 293 S.E.2d 235 (1982).

Suit against a city arising from a traffic accident during a funeral procession was properly dismissed because a moving car, even if driven negligently, was not an "obstruction" within the meaning of G.S. 160A-296(a)(2); also, the timing of a traffic signal was a discretionary governmental function, and thus within the immunity doctrine. Sisk v. City of Greensboro, 183 N.C. App. 657, 645 S.E.2d 176 (2007), review dismissed, - N.C. - , 650 S.E.2d 812 (2007), review denied, 361 N.C. 569, 650 S.E.2d 813 (2007).

Liability for Negligent Obstructions. - A city does not have discretionary power to put obstructions in its streets, and it is liable for its negligence in putting or leaving obstructions in the street to one injured by such obstruction. Graham v. City of Charlotte, 186 N.C. 649, 120 S.E. 466 (1923).

A city has no right, in building a bridge, to obstruct the street with concrete pilasters, and for injuries caused by such obstruction it is liable. Graham v. City of Charlotte, 186 N.C. 649, 120 S.E. 466 (1923).

In a wrongful death action arising from a motorist being struck by a train at a railroad crossing in a city, the motorist's widow did not allege that obstructions which allegedly interfered with the motorist's view of the oncoming train were the result of the city's failure to maintain foliage on city property, so she did not show any breach of duty by the city. Wilkerson v. Norfolk S. Ry. Co., 151 N.C. App. 332, 566 S.E.2d 104 (2002).

City Concurrently Liable for Failure to Repair. - City's negligence in failing to repair fence along city street on Housing Authority property was in the nature of concurrent, not insulating, negligence, and while inexcusable, the city's negligence was not so highly improbable and extraordinary an occurrence as to bear no reasonable connection to the harm threatened by the Housing Authority's original negligence. Petty v. City of Charlotte, 85 N.C. App. 391, 355 S.E.2d 210 (1987), cert. denied, 90 N.C. App. 559, 369 S.E.2d 612 (1988).

Joint Liability with Private Individual for Obstruction. - If any person unlawfully erects an obstruction or nuisance in the streets of a city, and the town authorities permit it to remain an unreasonable length of time, the town and the tort-feasor will be jointly and severally liable to a traveler for an injury resulting therefrom absent fault on his part. The question of primary and secondary liability is for the offending parties to adjust between themselves. Dillon v. City of Raleigh, 124 N.C. 184, 32 S.E. 548 (1899).

An individual may restrain the wrongful obstruction of public way, of whatever origin, if he will suffer injury thereby as distinct from the inconvenience to the public generally, and he may recover such special damages as he has sustained by reason of the obstruction. Wofford v. North Carolina State Hwy. Comm'n, 263 N.C. 677, 140 S.E.2d 376, cert. denied, 382 U.S. 822, 86 S. Ct. 50, 15 L. Ed. 2d 67 (1965).

Obstruction on Private Property. - Where tree which plaintiff contended obstructed her view was located on private property, town had no duty to exercise control over this property and therefore owed no duty to the plaintiff. Lavelle v. Schultz, 120 N.C. App. 857, 463 S.E.2d 567 (1995).

City Was Without Authority to License Placement of Structure in Right-of-Way. - City was without statutory authority, under G.S. 160A-296(a), to enter into a license agreement with a homeowner's association to permit the city to authorize the placement of a structure in a public street right-of-way. Moore's Ferry Dev. Corp. v. City of Hickory, 166 N.C. App. 441, 601 S.E.2d 900, cert. denied, 359 N.C. 191, 607 S.E.2d 277, cert. denied, 359 N.C. 191, 607 S.E.2d 278 (2004).

IV. OPENING, CLOSING AND WIDENING STREETS.

.

The opening and closing of streets is a governmental function. Bessemer Imp. Co. v. City of Greensboro, 247 N.C. 549, 101 S.E.2d 336 (1958).

The power provided by subdivision (a)(3) of this section is to be exercised in the discretion of the governing body of the municipality acting in its governmental, rather than its proprietary capacity. Rockingham Square Shopping Center, Inc. v. Town of Madison, 45 N.C. App. 249, 262 S.E.2d 705 (1980).

In an action by homeowners against a town alleging claims for inverse condemnation and negligence for closing a public street after storm damage under G.S. 160A-296(A), the trial court erred in failing to enter summary judgment in favor of the town on governmental immunity grounds. The extent to which particular municipal streets and roads were kept open for use by members of the public was a governmental function and governmental immunity was available to the town as a defense to the damage claims arising from a discretionary road closure decision. Kirkpatrick v. Town of Nags Head, 213 N.C. App. 132, 713 S.E.2d 151 (2011).

Exclusive to the Municipality. - A municipal corporation is usually given express power by its charter to lay out and open streets. Such charter provisions are supplemented by our general statutes. Under the power thus conferred, the municipal authorities are the sole judges of the necessity or expediency of exercising that right. The municipality's power over its streets is exclusive. Waynesville v. Satterthwait, 136 N.C. 226, 48 S.E. 661 (1904); Moore v. Meroney, 154 N.C. 158, 69 S.E. 838 (1910); Michaux v. City of Rocky Mount, 193 N.C. 550, 137 S.E. 663 (1927).

Authorities of the county embracing such municipality are precluded from exercising the same power within the same territory. Parsons v. Wright, 223 N.C. 520, 27 S.E.2d 534 (1943).

All or Part of Street May Be Closed. - Whether a street lies in a subdivision or is of other origin, the city may close all or part of it upon compliance with statutory procedure. Wofford v. North Carolina State Hwy. Comm'n, 263 N.C. 677, 140 S.E.2d 376, cert. denied, 382 U.S. 822, 86 S. Ct. 50, 15 L. Ed. 2d 67 (1965).

Closing of a street must not deprive a property owner of reasonable ingress or egress. Wofford v. North Carolina State Hwy. Comm'n, 263 N.C. 677, 140 S.E.2d 376, cert. denied, 382 U.S. 822, 86 S. Ct. 50, 15 L. Ed. 2d 67 (1965).

Diminution of Access from Change of Grade Is Damnum Absque Injuria. - When a city acts for public convenience under the authority granted it by the legislature and raises or lowers the grade of a street, any diminution of access by an abutting property owner is damnum absque injuria. The abutting property owner can neither prevent the change by injunction nor recover damages for the diminished value of his property, when the work is done in conformity with plans designated to promote public convenience. Thompson v. Seaboard Air Line R.R., 248 N.C. 577, 104 S.E.2d 181 (1958).

Abutting Owner Not Entitled to Damages for Narrowing of Sidewalk. - An abutting owner may not recover from a city damages resulting to his property by reason of the fact that the abutting sidewalk has been narrowed in order to widen the street under orders of the city commissioners, the width of the street and sidewalk being within the sound discretion of the commissioners. Ham v. City of Durham, 205 N.C. 107, 170 S.E. 137 (1933).

Demurrer to Action Challenging Closing of Street at Railroad Grade Crossing Upheld. - Defendant town, in cooperation with federal and State authorities in procuring the construction of an underpass and the elimination of two grade crossings, closed two of its streets at the railroad crossings. An action was thereupon instituted by property holders adjacent to the railroad tracks and along one of the closed streets, alleging that the order closing the streets was ultra vires and resulted in the creation of a nuisance causing injury to plaintiffs' property. It was held that defendant town had authority to close the said streets at the crossings in the interest of the public welfare, in the exercise of a discretionary governmental power with which the courts could interfere only in instances of fraud or oppression constituting a manifest abuse of discretion, and that as the closing did not constitute a nuisance or abuse of discretion, defendant town's demurrer to the complaint was properly sustained. Sanders v. Atlantic Coast Line R.R., 216 N.C. 312, 4 S.E.2d 902 (1939).

Opinions of Attorney General

Power of Municipalities to Regulate Streets. - This section grants municipalities authority to regulate public streets within municipalities, except to the extent power and control is vested in the Department of Transportation. See opinion of the Attorney General to Mr. Ralph D. Karpinos, Town Attorney, Chapel Hill, N.C. 58 N.C.A.G. 17 (1988).

The Department of Transportation is vested with general regulatory authority over the use of State Highway System streets. The general grant of authority to municipalities over streets is subordinate to the Department of Transportation's rights and duties to maintain the State Highway System. See opinion of the Attorney General to Mr. Ralph D. Karpinos, Town Attorney, Chapel Hill, N.C. 58 N.C.A.G. 17 (1988).

§ 160A-297. Streets under authority of Board of Transportation.

  1. A city shall not be responsible for maintaining streets or bridges under the authority and control of the Board of Transportation, and shall not be liable for injuries to persons or property resulting from any failure to do so.
  2. Nothing in this Article shall authorize any city to interfere with the rights and privileges of the Board of Transportation with respect to streets and bridges under the authority and control of the Board of Transportation.

History

(1925, c. 71, s. 3; 1957, c. 65, s. 11; 1971, c. 698, s. 1; 1973, c. 507, s. 5; 1987, c. 747, s. 3.1.)

Editor's Note. - Session Laws 1987, c. 747, which amended this section, effective August 7, 1987, by deleting former subsection (b), which read "A city may, at its own expense, widen any street or bridge under the authority and control of the Board of Transportation, subject to the Board of Transportation's engineering and design specifications," and redesignating former subsection (c) as present subsection (b), in s. 4 provided: "This act shall not be construed to abrogate any agreement between the Department of Transportation and a municipality for the purpose of participating in a State highway system improvement project approved by the Board of Transportation under G.S. 143B-350(f)(4) if the agreement was approved by the Board of Transportation and executed prior to the effective date of this act. This act shall not apply to highway improvement projects identified in the Department's Transportation Improvement Program 1987-1995 adopted by the Board of Transportation in December 1986 for which local municipal participation in rights-of-way acquisition or construction or both is shown."

Section 25 of Session Laws 1987, c. 747 provided that as used in the act, the word "municipality" means a "city" as defined by G.S. 160A-1.

CASE NOTES

Subsection (a) is intended to apply where there is no contract between a city and the Board of Transportation and does not, per se, absolve a city from liability for injury, if any, imposed upon it by such contract. Matternes v. City of Winston-Salem, 286 N.C. 1, 209 S.E.2d 481 (1974).

City Had No Duty to Regulate Design, Site Distance, or Speed Limit of a Street. - Trial court did not err in granting a town and municipal employees summary judgment in a driver's action alleging that they negligently failed to establish the proper road design, speed limit, or traffic control devices on the street where the accident occurred because the driver failed to produce any evidence that the town and employees owed a legal duty to regulate the design, site distance, speed limit, or any other features of the street, and there was no evidence that the view on the street where the accident occurred was obstructed; the driver was able to see a stop sign in time to stop at an intersection, and she failed to produce any evidence of a defect in the condition of the street or any question about the adequacy of the stop sign to alert drivers of the need to stop. Blackwell v. Hatley, 202 N.C. App. 208, 688 S.E.2d 742 (2010).

Liability of City to Individual User for Failure to Make Repairs, etc., Contracted for. - An individual user of a street which is part of the State highway system who sustains personal injuries or property damage as the result of a dangerous condition of such street cannot maintain an action for damages against a city which contracted with the Board of Transportation to repair or remove such condition and then did nothing whatsoever about it. Matternes v. City of Winston-Salem, 286 N.C. 1, 209 S.E.2d 481 (1974).

Liability of City for Dangerous Condition on State Highway Within Its Borders. - When a city street becomes a part of the State highway system, the Board of Transportation is responsible for its maintenance thereafter, which responsibility includes the control of all signs and structures within the right-of-way. Therefore, in the absence of any control over a State highway within its border, a municipality has no liability for injuries resulting from a dangerous condition of such street, unless it created or increased such condition. Shapiro v. Toyota Motor Co., 38 N.C. App. 658, 248 S.E.2d 868 (1978).

Sidewalks. - Summary judgment should not have been granted to a city in a negligence case because it had a statutory duty to maintain a sidewalk in a reasonably safe manner; there was no evidence that the North Carolina Department of Transportation had agreed to take on maintenance responsibility in this case. Although the city's responsibility to maintain certain streets and bridges was limited, the same was not true for its responsibility to maintain sidewalks. Steele v. City of Durham, 245 N.C. App. 318, 782 S.E.2d 331 (2016).

City Not Responsible for "Controlled Access" Areas. - All areas within the boundaries of the "controlled access" area are part of the State Highway system and were excepted from contract between the city and NCDOT; thus, city was not responsible for dangerous conditions within the "controlled access" areas. Eakes v. City of Durham, 125 N.C. App. 551, 481 S.E.2d 403 (1997).

As to the statutory obligations of the State Highway Commission (now Board of Transportation), see Milner Hotels, Inc. v. City of Raleigh, 271 N.C. 224, 155 S.E.2d 543 (1967), decided under former statutory provisions.

Applied in Dize Awning & Tent Co. v. City of Winston-Salem, 29 N.C. App. 297, 224 S.E.2d 257 (1976).

Cited in Colombo v. Dorrity, 115 N.C. App. 81, 443 S.E.2d 752, cert. denied, 337 N.C. 689, 448 S.E.2d 517 (1994); Stancill v. City of Washington, 29 N.C. App. 707, 225 S.E.2d 834 (1976); Estate of Jiggetts v. City of Gastonia, 128 N.C. App. 410, 497 S.E.2d 287 (1998); Kennedy v. Polumbo, 209 N.C. App. 394, 704 S.E.2d 916 (2011).


§ 160A-298. Railroad crossings.

  1. A city shall have authority to direct, control, and prohibit the laying of railroad tracks and switches in public streets and alleys and to require that all railroad tracks, crossings, and bridges be constructed so as not to interfere with drainage patterns or with the ordinary travel and use of the public streets and alleys.
  2. The costs of constructing, reconstructing, and improving public streets and alleys, including the widening thereof, within areas covered by railroad cross ties, including cross timbers, shall be borne equally by the city and the railroad company. The costs of maintaining and repairing such areas after construction shall be borne by the railroad company.
  3. A city shall have authority to require the installation, construction, erection, reconstruction, and improvement of warning signs, gates, lights, and other safety devices at grade crossings, and the city shall bear ninety percent (90%) of the costs thereof and the railroad company shall bear ten percent (10%) of the costs. The costs of maintaining warning signs, gates, lights, and other safety devices installed after January 1, 1972, shall be borne equally by the city and the railroad company. The maintenance shall be performed by the railroad company and the city shall pay annually to the railroad company fifty percent (50%) of these costs. In maintaining maintenance cost records and determining such costs, the city and the railroad company shall use the same methods and procedures as are now or may hereafter be used by the Board of Transportation.
  4. A city shall have authority to require that a grade crossing be eliminated and replaced by a railroad bridge or by a railroad underpass, if the council finds as a fact that the grade crossing constitutes an unreasonable hazard to vehicular or pedestrian traffic. In such event, the city shall bear ninety percent (90%) of the costs and the railroad company shall bear ten percent (10%) of the costs. If the city constructs a new street which requires a grade separation and which does not replace an existing street, the city shall bear all of the costs. If a railroad company constructs a new track across at grade, or under, or over an existing street, the railroad company shall pay the entire cost thereof. The city shall pay the costs of maintaining street bridges which cross over railroads. Railroad companies shall pay the cost of maintaining railroad bridges over streets, except that cities shall pay the costs of maintaining street pavement, sidewalks, street drainage, and street lighting where streets cross under railroads.
  5. Whenever the widening, improving, or other changes in a street require that a railroad bridge be relocated, enlarged, heightened, or otherwise reconstructed, the city shall bear ninety percent (90%) of the costs and the railroad company shall bear ten percent (10%) of the costs.
  6. It is the intent of this section to make uniform the law concerning the construction and maintenance of railroad crossings, bridges, underpasses, and warning devices within cities. To this end, all general laws and local acts in conflict with this section are repealed, and no local act taking effect on or after January 1, 1972, shall be construed to modify, amend, or repeal any portion of this section unless it specifically so provides by express reference to this section.

History

(1917, c. 136, subch. 5, s. 1; 1919, cc. 136, 237; C.S., s. 2787; 1971, c. 698, s. 1; 1973, c. 507, s. 5.)

Local Modification. - Town of Carrboro: 1987, c. 476, s. 1; 1989, c. 644, s. 6.

CASE NOTES

Editor's Note. - As to city's control over railroad crossings, see also the case notes to G.S. 160A-296.

Many of the cases cited below were decided under former similar provisions.

Exercise of control over railroad crossings is within a municipality's inherent police power. Cooper v. Town of Southern Pines, 58 N.C. App. 170, 293 S.E.2d 235 (1982).

Authority Under This Section Does Not Constitute Duty. - The fact that a city has the authority to make certain decisions does not mean that the city is under an obligation to do so. The words "authority" and "power" are not synonymous with the word "duty". When the Legislature intended to create a duty in this Chapter, it did so expressly. Cooper v. Town of Southern Pines, 58 N.C. App. 170, 293 S.E.2d 235 (1982).

In a wrongful death action arising from a motorist's death after being struck by a train at a railroad crossing in a city, the city's authority, under G.S. 160A-298(c), to require the installation of warning devices at the crossing did not create a duty on its part to have such devices installed. Wilkerson v. Norfolk S. Ry. Co., 151 N.C. App. 332, 566 S.E.2d 104 (2002).

Section allows a city to exercise its discretion in requiring improvements at railroad crossings. There is no mandate of action. Cooper v. Town of Southern Pines, 58 N.C. App. 170, 293 S.E.2d 235 (1982).

Courts Will Not Interfere Absent Abuse of Discretion. - Courts will not interfere with discretionary powers conferred on a municipality for the public welfare unless the exercise (or non-exercise) of those powers is so clearly unreasonable as to constitute an abuse of discretion. Cooper v. Town of Southern Pines, 58 N.C. App. 170, 293 S.E.2d 235 (1982).

Unlike this section, G.S. 160A-296(a)(2) creates an affirmative duty of care. Cooper v. Town of Southern Pines, 58 N.C. App. 170, 293 S.E.2d 235 (1982).

Cost of Automatic Signal Devices at Railroad Crossings. - A city has authority, in the exercise of its police power, to promote public safety and convenience, to allocate to a railway company some portion of the costs of the installation and maintenance of automatic signal devices at road crossings. Allocations so made would constitute a denial of a railway company's constitutional right to substantive due process only if the proportion of the costs allocated to it was so unreasonable as to constitute an arbitrary taking of its property. Southern Ry. v. City of Winston-Salem, 275 N.C. 465, 168 S.E.2d 396 (1969), decided under former G.S. 160-200.

Applied in Norman v. N.C. DOT, 161 N.C. App. 211, 588 S.E.2d 42 (2003), review dismissed, review denied, 358 N.C. 235, 595 S.E.2d 153, cert. denied, 358 N.C. 545, 599 S.E.2d 404 (2004).


§ 160A-299. Procedure for permanently closing streets and alleys.

  1. When a city proposes to permanently close any street or public alley, the council shall first adopt a resolution declaring its intent to close the street or alley and calling a public hearing on the question. The resolution shall be published once a week for four successive weeks prior to the hearing, a copy thereof shall be sent by registered or certified mail to all owners of property adjoining the street or alley as shown on the county tax records, and a notice of the closing and public hearing shall be prominently posted in at least two places along the street or alley. If the street or alley is under the authority and control of the Department of Transportation, a copy of the resolution shall be mailed to the Department of Transportation. At the hearing, any person may be heard on the question of whether or not the closing would be detrimental to the public interest, or the property rights of any individual. If it appears to the satisfaction of the council after the hearing that closing the street or alley is not contrary to the public interest, and that no individual owning property in the vicinity of the street or alley or in the subdivision in which it is located would thereby be deprived of reasonable means of ingress and egress to his property, the council may adopt an order closing the street or alley. A certified copy of the order (or judgment of the court) shall be filed in the office of the register of deeds of the county in which the street, or any portion thereof, is located.
  2. Any person aggrieved by the closing of any street or alley including the Department of Transportation if the street or alley is under its authority and control, may appeal the council's order to the General Court of Justice within 30 days after its adoption. In appeals of streets closed under this section, all facts and issues shall be heard and decided by a judge sitting without a jury. In addition to determining whether procedural requirements were complied with, the court shall determine whether, on the record as presented to the city council, the council's decision to close the street was in accordance with the statutory standards of subsection (a) of this section and any other applicable requirements of local law or ordinance.
  3. Upon the closing of a street or alley in accordance with this section, subject to the provisions of subsection (f) of this section, all right, title, and interest in the right-of-way shall be conclusively presumed to be vested in those persons owning lots or parcels of land adjacent to the street or alley, and the title of such adjoining landowners, for the width of the abutting land owned by them, shall extend to the centerline of the street or alley.
  4. This section shall apply to any street or public alley within a city or its extraterritorial jurisdiction that has been irrevocably dedicated to the public, without regard to whether it has actually been opened. This section also applies to unopened streets or public alleys that are shown on plats but that have not been accepted or maintained by the city, provided that this section shall not abrogate the rights of a dedicator, or those claiming under a dedicator, pursuant to G.S. 136-96.
  5. No street or alley under the control of the Department of Transportation may be closed unless the Department of Transportation consents thereto.
  6. A city may reserve a right, title, and interest in any improvements or easements within a street closed pursuant to this section. An easement under this subsection shall include utility, drainage, pedestrian, landscaping, conservation, or other easements considered by the city to be in the public interest. The reservation of an easement under this subsection shall be stated in the order of closing. The reservation also extends to utility improvements or easements owned by private utilities which at the time of the street closing have a utility agreement or franchise with the city.
  7. The city may retain utility easements, both public and private, in cases of streets withdrawn under G.S. 136-96. To retain such easements, the city council shall, after public hearing, approve a "declaration of retention of utility easements" specifically describing such easements. Notice by certified or registered mail shall be provided to the party withdrawing the street from dedication under G.S. 136-96 at least five days prior to the hearing. The declaration must be passed prior to filing of any plat or map or declaration of withdrawal with the register of deeds. Any property owner filing such plats, maps, or declarations shall include the city declaration with the declaration of withdrawal and shall show the utilities retained on any map or plat showing the withdrawal.

No cause of action or defense founded upon the invalidity of any proceedings taken in closing any street or alley may be asserted, nor shall the validity of the order be open to question in any court upon any ground whatever, except in an action or proceeding begun within 30 days after the order is adopted. The failure to send notice by registered or certified mail shall not invalidate any ordinance adopted prior to January 1, 1989.

The provisions of this subsection regarding division of right- of-way in street or alley closings may be altered as to a particular street or alley closing by the assent of all property owners taking title to a closed street or alley by the filing of a plat which shows the street or alley closing and the portion of the closed street or alley to be taken by each such owner. The plat shall be signed by each property owner who, under this section, has an ownership right in the closed street or alley.

History

(1971, c. 698, s. 1; 1973, c. 426, s. 47; c. 507, s. 5; 1977, c. 464, s. 34, 1981, c. 401; c. 402, ss. 1, 2; 1989, c. 254; 1993, c. 149, s. 1; 2015-103, s. 1.)

Local Modification. - Wake: 1989, c. 279, s. 1; city of Charlotte: 1987, c. 426 (publication period reduced) ; city of Durham: 1973, c. 415; 1985, c. 332; city of Statesville: 1987, c. 426 (publication period reduced.)

Editor's Note. - Session Laws 1993, c. 149, which amended this section, provides in s. 2: "This act applies to any street closing order adopted on or after July 1, 1993, but does not apply to pending litigation."

Session Laws 1993, c. 149, s. 3 provides: "This act does not affect any local modifications to G.S. 160A-299 which are not in conflict with the amendments made to G.S. 160A-299 by this act. If the local modification to G.S. 160A-299 conflicts with the amendments made to G.S. 160A-299 made by this act, the amendments made by this act prevail to the extent of the conflict."

Effect of Amendments. - Session Laws 2015-103, s. 1, effective June 22, 2015, in subsection (f), substituted "a" for "its" and "improvements or easements" for "utility improvement or easement" in the first sentence, inserted the second sentence, substituted "The reservation of an easement under this subsection" for "Such reservation" in the present third sentence, and made a minor stylistic change.

CASE NOTES

Person Aggrieved Defined. - Term "person aggrieved" is not defined, but the court has defined an "aggrieved party" in the context of the statutory chapter and a zoning ordinance as one who can either show an interest in the property affected, or if the party is a nearby property owner, some special damage, distinct from the rest of the community, amounting to a reduction in the value of the party's property, and the court believes the same definition is applicable here. Cox v. Town of Oriental, 234 N.C. App. 675, 759 S.E.2d 388 (2014).

Closing of Portion of Street. - The legislature did not intend to provide a town with the authority to close a street only if the entire length and breadth of the street is closed; thus, a town may close only a portion of a street. Williamson v. Town of Surf City, 143 N.C. App. 539, 545 S.E.2d 798 (2001).

Time to Contest Closing of Street. - A declaratory judgment action to contest the validity of a proceeding to close a 30-foot wide strip of land adjacent to the plaintiff's property was untimely where the complaint was filed more than 30 days after the adoption of the ordinance purporting to close the disputed strip of land. Groves v. Cmty. Hous. Corp., 144 N.C. App. 79, 548 S.E.2d 535 (2001).

Public Must Acquire Some Right in Street Before Municipality May Close It. - The language of subsections (a) and (d) clearly indicates that the public must have acquired some right in the street or alley before the municipality may act to close it. In re Easement of Right of Way, 90 N.C. App. 303, 368 S.E.2d 639 (1988).

Indexing of resolution closing a street under the name of the city, without also indexing it under the names of the abutting landowners who acquired the fee simple title to the portion closed, was all that was statutorily required. General Greene Inv. Co. v. Greene, 48 N.C. App. 29, 268 S.E.2d 810, cert. denied, 301 N.C. 235, 283 S.E.2d 132 (1980).

Street Not to Be Utilized for Park. - Subsection (c) specifies that if a portion of the street is closed, the land would go to property owners on either side of the dedicated street; thus, closing a street pursuant to this section would not allow town to utilize the street for park purposes. Wooten v. Town of Topsail Beach, 127 N.C. App. 739, 493 S.E.2d 285 (1997), cert. denied, 348 N.C. 78, 505 S.E.2d 888 (1998).

Construction of Public Facilities on Portion of Closed Street. - A town had authority to close a street pursuant to this section where the town intended to use a portion of the closed street to construct public facilities, provided the town complied with the procedural requirements of this section. Williamson v. Town of Surf City, 143 N.C. App. 539, 545 S.E.2d 798 (2001).

Collateral Attack on Notice Precluded. - Where all abutting owners consented to a closing, no other notices by mail to landowners were required by former G.S. 153-9(17), and subsequent owners of property who purchased on the representation that an adjacent street was open could not collaterally attack the city council's finding that notice of the hearing was duly published. General Greene Inv. Co. v. Greene, 48 N.C. App. 29, 268 S.E.2d 810, cert. denied, 301 N.C. 235, 283 S.E.2d 132 (1980).

Separation of Powers Clause not Violated. - G.S. 160A-299(b) did not deprive a home owner of his right to a fair hearing or violate the Separation of Powers Clause of the North Carolina Constitution in his appeal from a town council order closing a road because he had the opportunity to test, rebut, and explain evidence presented to the council at three public hearings held on the road closure over a two-month period; these hearings were the proper place for him to present evidence and to rebut any evidence contrary to his position. Houston v. Town of Chapel Hill, 177 N.C. App. 739, 630 S.E.2d 249 (2006).

Status as Taxpayer Insufficient to Support Appeal. - Resident provided no factual basis to support the argument that the resident was an aggrieved person in this case as the resident's property was not adjacent to certain streets, the resident did not allege any personal injury, and although the resident asserted the resident's status as a taxpayer, such status is patently insufficient to support an appeal from, or action for declaratory judgment regarding, a town's order closing a street or alley under the statute; thus, the resident lacked standing to contest the town's decision. Cox v. Town of Oriental, 234 N.C. App. 675, 759 S.E.2d 388 (2014).

Evidentiary Hearing Not Required on Appeal. - Homeowner was not entitled to an evidentiary hearing in his appeal from a town council's road closure order because the clear and unambiguous language of G.S. 160A-299(b) directed the superior court to decide all issues except the council's compliance with procedural issues on the record before the town council, and the owner did not challenge the council's procedural compliance; the record evidence supported the council's findings, and the superior court properly affirmed its order after finding that it complied with G.S. 160A-299. Houston v. Town of Chapel Hill, 177 N.C. App. 739, 630 S.E.2d 249 (2006).

Cited in Homebuilders Ass'n v. City of Charlotte, 336 N.C. 37, 442 S.E.2d 45 (1994).


§ 160A-299.1. Applications for intermittent closing of roads within watershed improvement project by municipality; notice; costs; markers.

  1. Upon proper application by the board of commissioners of a drainage district established under the provisions of Chapter 156 of the General Statutes by the board of trustees of a watershed improvement district established under the provisions of Article 2 of Chapter 139 of the General Statutes, by the board of county commissioners of any county operating a county watershed improvement program under the provisions of Article 3 of Chapter 139 of the General Statutes, by the board of commissioners of any watershed improvement commission appointed by a board of county commissioners, or by the board of supervisors of any soil and water conservation district designated by a board of county commissioners to exercise authority in carrying out a county watershed improvement program, any municipality for roads or streets coming under its jurisdictional control is hereby authorized to permit the intermittent closing of any highway or public road within the boundaries of any watershed improvement project operated by the applicants, whenever in the judgment of the municipality it is necessary to do so, and when the highway or public road will be intermittently subject to inundation by floodwaters retained by an approved watershed improvement project.
  2. Before any permit may be issued for the temporary inundation and closing of such a road, an application for such permit shall be made to the appropriate municipality by the public body having jurisdiction over the watershed improvement project. The application shall specify the highway, road, or street involved, and shall request that a permit be granted to the applicant public body to allow the intermittent closing of the road.
  3. Upon receipt of such an application the municipality shall give public notice of the proposed action by publication in a newspaper of general circulation in the county or counties, within which the proposed intermittent closing of road or roads would occur; and such notices shall contain a description of the places of beginning and the places of ending of such intermittent closing. In addition, the municipality shall give notice to all public utilities or common carriers having facilities located within the rights-of-way of any roads being closed by mailing copies of such notices to the appropriate offices of the public utility or common carrier having jurisdiction over the affected facilities of the public utility or common carrier. Not sooner than 14 days after publication and mailing of notices, the municipality may issue its permit with respect to such road.
  4. All cost in connection with the publication and mailing of notices shall be paid by the applicant. In the event any municipality issues a permit allowing the intermittent closing of a road, the permit shall contain a provision that the applicant public body having jurisdiction over the watershed improvement project causing the potential flooding shall cause suitable markers to be installed on the road to advise the general public of the intermittent closing of the road.

History

(1975, c. 639, s. 2.)

§ 160A-300. Traffic control.

A city may by ordinance prohibit, regulate, divert, control, and limit pedestrian or vehicular traffic upon the public streets, sidewalks, alleys, and bridges of the city.

History

(1917, c. 136, subch. 5, s. 1; 1919, cc. 136, 237; C.S., s. 2787; 1941, c. 153, ss. 1, 2; c. 272; 1947, c. 7; 1953, c. 171; 1965, c. 945; 1971, c. 698, s. 1.)

Legal Periodicals. - For note on trend away from governmental immunity to liability for a defective traffic signal, see 6 Wake Forest Intra. L. Rev. 518 (1970).

CASE NOTES

Editor's Note. - Most of the cases cited below were decided under former G.S. 160-200.

Ordinances under this section are presumed to be valid, and the courts will not declare them invalid unless they are clearly shown to be so. Wenco Mgt. Co. v. Town of Carrboro, 53 N.C. App. 480, 281 S.E.2d 74 (1981).

Section Does Not Impose Affirmative Duty. - This section grants cities discretionary authority, but imposes no affirmative duty on them to control vehicular traffic on the public streets of the city. Talian v. City of Charlotte, 98 N.C. App. 281, 390 S.E.2d 737, aff'd, 327 N.C. 629, 398 S.E.2d 330 (1990).

City has been held to have owed the plaintiffs no affirmative duty to control traffic on a city street when G.S. 160A-300 authorized the city to control traffic, but did not expressly require it to do so; a city cannot be held liable for delaying the installation of safety devices at a railroad crossing because the city, although authorized to require safety devices, has no duty to have the warning or safety devices in place. Norman v. N.C. DOT, 161 N.C. App. 211, 588 S.E.2d 42 (2003), review dismissed, review denied, 358 N.C. 235, 595 S.E.2d 153, cert. denied, 358 N.C. 545, 599 S.E.2d 404 (2004).

Authority to Regulate Traffic and Use of Streets. - Every municipal corporation has specific statutory authority to adopt such ordinances for the regulation and use of its streets as it deems best for the public welfare of its citizens and to provide for the regulation and diversion of vehicular traffic upon its streets. Gene's, Inc. v. City of Charlotte, 259 N.C. 118, 129 S.E.2d 889 (1963).

As to municipality's right to install traffic control signals, see Upchurch v. Hudson Funeral Home, 263 N.C. 560, 140 S.E.2d 17 (1965); Rappe v. Carr, 4 N.C. App. 497, 167 S.E.2d 48 (1969).

Installation and Maintenance of Traffic Lights as Discretionary Governmental Function. - The installation and maintenance of traffic lights by a municipality is in the interest of the public safety in the exercise of the police power and is a discretionary governmental function. Hodges v. City of Charlotte, 214 N.C. 737, 200 S.E. 889 (1939).

In the installation and maintenance of traffic light signals, a city exercises a discretionary governmental function solely for the benefit of the public and may not be held liable for the negligence of its officers and agents in respect thereto. Hamilton v. Hamlet, 238 N.C. 741, 78 S.E.2d 770 (1953).

The installation and maintenance of electrical traffic control signals in and by municipalities is a governmental function and not a proprietary or corporate function. Rappe v. Carr, 4 N.C. App. 497, 167 S.E.2d 48 (1969).

Private Store Not Responsible for Traffic Control. - The duty to provide for traffic control on public streets in a municipality is charged by statute to the city. Defendant corporation, an outlet store, had no duty to provide for a crossing guard, warning lights or other traffic control devices over a city street, nor any duty to warn of the hazard of jaywalking across such a busy thoroughfare. Laumann v. Plakakis, 84 N.C. App. 131, 351 S.E.2d 765 (1987).

Applied in Cucina v. City of Jacksonville, 138 N.C. App. 99, 530 S.E.2d 353, review denied, 352 N.C. 588, 544 S.E.2d 778 (2000).

Cited in Lonon v. Talbert, 103 N.C. App. 686, 407 S.E.2d 276 (1991); Barris v. Town of Long Beach, 208 N.C. App. 718, 704 S.E.2d 285 (2010).


§ 160A-300.1. Use of traffic control photographic systems.

  1. A traffic control photographic system is an electronic system consisting of a photographic, video, or electronic camera and a vehicle sensor installed to work in conjunction with an official traffic control device to automatically produce photographs, video, or digital images of each vehicle violating a standard traffic control statute or ordinance.
  2. Any traffic control photographic system or any device which is a part of that system, as described in subdivision (a) of this section, installed on a street or highway which is a part of the State highway system shall meet requirements established by the North Carolina Department of Transportation. Any traffic control system installed on a municipal street shall meet standards established by the municipality and shall be consistent with any standards set by the Department of Transportation.
  3. Any traffic control photographic system installed on a street or highway must be identified by appropriate advance warning signs conspicuously posted not more than 300 feet from the location of the traffic control photographic system. All advance warning signs shall be consistent with a statewide standard adopted by the Department of Transportation in conjunction with local governments authorized to install traffic control photographic systems.
  4. Municipalities may adopt ordinances for the civil enforcement of G.S. 20-158 by means of a traffic control photographic system, as described in subsection (a) of this section. Notwithstanding the provisions of G.S. 20-176, in the event that a municipality adopts an ordinance pursuant to this section, a violation of G.S. 20-158 at a location at which a traffic control photographic system is in operation shall not be an infraction. An ordinance authorized by this subsection shall provide that:
    1. The owner of a vehicle shall be responsible for a violation unless the owner can furnish evidence that the vehicle was, at the time of the violation, in the care, custody, or control of another person. The owner of the vehicle shall not be responsible for the violation if the owner of the vehicle, within 30 days after notification of the violation, furnishes the officials or agents of the municipality which issued the citation either of the following:
      1. An affidavit stating the name and address of the person or company who had the care, custody, and control of the vehicle.
      2. An affidavit stating that the vehicle involved was, at the time, stolen. The affidavit must be supported with evidence that supports the affidavit, including insurance or police report information.
    2. Subdivision (1) of this subsection shall not apply, and the registered owner of the vehicle shall not be responsible for the violation, if notice of the violation is given to the registered owner of the vehicle more than 90 days after the date of the violation.
    3. A violation detected by a traffic control photographic system shall be deemed a noncriminal violation for which a civil penalty of fifty dollars ($50.00) shall be assessed, and for which no points authorized by G.S. 20-16(c) shall be assigned to the owner or driver of the vehicle nor insurance points as authorized by G.S. 58-36-65.
    4. The owner of the vehicle shall be issued a citation which shall clearly state the manner in which the violation may be challenged, and the owner shall comply with the directions on the citation. The citation shall be processed by officials or agents of the municipality and shall be forwarded by personal service or first-class mail to the address given on the motor vehicle registration. If the owner fails to pay the civil penalty or to respond to the citation within the time period specified on the citation, the owner shall have waived the right to contest responsibility for the violation, and shall be subject to a civil penalty not to exceed one hundred dollars ($100.00). The municipality may establish procedures for the collection of these penalties and may enforce the penalties by civil action in the nature of debt.
    5. The municipality shall institute a nonjudicial administrative hearing to review objections to citations or penalties issued or assessed under this section.
  5. The duration of the yellow light change interval at intersections where traffic control photographic systems are in use shall be no less than the yellow light change interval duration specified on the traffic signal plan of record signed and sealed by a professional engineer, licensed in accordance with the provisions of Chapter 89C of the General Statutes, and shall comply with the provisions of the Manual on Uniform Traffic Control Devices.
  6. This section applies only to the Cities of Albemarle, Charlotte, Durham, Fayetteville, Greensboro, Greenville, High Point, Locust, Lumberton, Newton, Rocky Mount, and Wilmington, to the Towns of Chapel Hill, Cornelius, Huntersville, Matthews, Nags Head, Pineville, and Spring Lake, and to the municipalities in Union County.

History

(1997-216, ss. 1, 2; 1999-17, s. 1; 1999-181, ss. 1, 2; 1999-182, s. 2; 1999-456, s. 48(c); 2000-37, s. 1; 2000-97, s. 2; 2001-286, ss. 1, 2; 2001-487, s. 37; 2003-86, s. 1; 2003-380, s. 2; 2007-341, s. 2; 2010-132, s. 17.)

Local Modification. - City of Albemarle: 2007-341, s. 1; city of Charlotte: 2007-341, s. 1; city of Durham: 2007-341, s. 1; city of Fayetteville: 2007-341, s. 1; 2014-84, s. 1 (as to subsection (c), effective July 1, 2014); 2014-84, s. 2 (as to subsection (c)(2), effective July 1, 2015); city of Greenville: 2007-341, s. 1; 2016-64, ss. 1-3; city of Locust: 2007-341, s. 1; city of Rocky Mount: 2007-341, s. 1; town of Chapel Hill: 2000-97, s. 2(b); municipalities in Union County: 2007-341, s.1; Cumberland County Board of Education: 2014-84, s. 1 (as to subsection (c), effective July 1, 2014; 2014-84, s. 2 (as to subsection (c)(2), effective July 1, 2015); Pitt County Board of Education: 2016-64, ss. 2, 3.

Use of Traffic Control Photographic Systems in Wake County and the City of Concord. - Sessions Laws 2001-286, ss. 3, 4, as amended by Session Laws 2003-380, s. 3, and as amended by Session Laws 2010-132, ss. 18, 19, enacted local laws governing the use of traffic control photographic systems in Wake County and the City of Concord.

Editor's Note. - Session Laws 1997-216, s. 1, effective June 23, 1997, enacted this section and s. 2 made it effective as to the city of Charlotte. Session Laws 1999-17, s. 1, effective April 17, 1999, added the city of Fayetteville. Session Laws 1999-181, effective January 1, 2000, in s. 1, added subsection (b1), added "nor insurance points as authorized by G.S. 58-36-65" at the end of subdivision (c)(2), and in s. 2, added the cities of Greensboro, High Point, and Rocky Mount. Session Laws 1999-182, effective January 1, 2000, in s. 1 made the same changes as were made by Session Laws 1999-181, s. 1, and in s. 2 added Charlotte, Fayetteville, Greenville, Wilmington, and Greensboro and the towns of Huntersville, Matthews, and Cornelius. Session Laws 1999-456, s. 48(c), effective August 13, 1999, and designed to resolve duplicate enactments by Session Laws 1999-181 and 1999-182, repealed Session Laws 1999-182, ss. 1 and 2, and rewrote Session Laws 1997-216, s. 2, as amended by Session Laws 1999-17 and Session Laws 1999-181, to add the city of Wilmington, and the towns of Cornelius, Huntersville, and Matthews. Session Laws 2000-37, s. 1, effective June 30, 2000, added the cities of Greenville and Lumberton, and the town of Pineville. Session Laws 2000-97, s. 2, effective July 10, 2000, added the town of Chapel Hill. The section has been codified at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2007-341, s. 2, effective September 1, 2007, and applicable to offenses committed on or after that date, inserted "Locust" in subsection (d).

Session Laws 2010-132, s. 17, effective December 1, 2010, and applicable to offenses committed on or after that date, substituted the language "specified on the traffic signal plan of record ... Uniform Traffic Control Devices" for "specified in the Design Manual developed by the Signals and Geometrics Section of the North Carolina Department of Transportation" in subsection (c1).

Legal Periodicals. - For recent development, "Picture It: Red Light Cameras Abide by the Law of the Land," see 80 N.C.L. Rev. 1879 (2002).

CASE NOTES

Due Process. - Because G.S. 160A-300.1(c)(4) and a city ordinance promulgated pursuant to it provided an adequate method to challenge the legality of a city's program to catch red-light violators by use of automatic cameras at intersections, plaintiff's independent action presenting such a challenge was properly dismissed. Structural Components Int., Inc. v. City of Charlotte, 154 N.C. App. 119, 573 S.E.2d 166 (2002).

Constitutionality. - An individual who was assessed a $50.00 civil penalty for a red light violation detected by cameras installed under the authority of G.S. 160A-300.1 lacked standing to challenge the statute on the grounds of a violation of his right to due process and equal protection because the individual did not avail himself of any of the procedural processes available under the statute. Furthermore, even if the individual had standing, the statute was civil in nature and the process was sufficient in a civil setting to afford the citation recipient due process. In addition, the individual failed to allege membership in any suspect class. Shavitz v. City of High Point, 270 F. Supp. 2d 702 (M.D.N.C. 2003).

Use of Assessments. - The assessments made pursuant to G.S. 160A-300.1 and High Point, N.C. Ordinance No. 00-89, § 10-1-306 constituted monetary payments which, although levied in a civil setting, were penal in nature. Where the assessments did not accrue to the state, the "civil penalties" assessed by a city pursuant to the ordinance were not subject to the requirements N.C. Const. art. IX, § 7. The fines and other amounts received by the city and the other defendants under the statute and the ordinance were not required to be appropriated and used exclusively for maintaining free public schools in the county. Shavitz v. City of High Point, 270 F. Supp. 2d 702 (M.D.N.C. 2003).

County board of education was entitled to funds derived from a city's red light camera program, which program was implemented by an ordinance pursuant to G.S. 160A-300.1(c), as N.C. Const. art. IX, § 7 applied to the civil penalties assessed by the city for violations of the ordinance regarding the failure to stop for a red stoplight. Further, pursuant to G.S. 115C-437, the city was to pay 90 percent of the amount collected by its red light camera program to the board. Shavitz v. City of High Point, 177 N.C. App. 465, 630 S.E.2d 4 (2006), cert. denied, appeal dismissed, 361 N.C. 430, 648 S.E.2d 845 (2007).

Standing. - An individual, who was assessed a $50.00 civil penalty for a red light violation detected by cameras installed under the authority of G.S. 160A-300.1 and High Point, N.C. Ordinance No. 00-89, § 10-1-306, launched a challenge to the statute and the ordinance based on N.C. Const. art. IX, § 7; he did not, however, have standing to bring this claim, as he did not allege that (1) there had been a demand on and refusal by the proper authorities to institute proceedings for the protection of the interests of the political agency or political subdivision; or (2) a demand on such authorities would have been useless. Nor could the individual allege that a demand on the proper authorities, a school board, would have been useless since the school board had protected its own interests by asking for declaratory relief. Shavitz v. City of High Point, 270 F. Supp. 2d 702 (M.D.N.C. 2003).

An individual, who was assessed a $50.00 civil penalty for a red light violation detected by cameras installed under the authority of G.S. 160A-300.1 and High Point, N.C. Ordinance No. 00-89, § 10-1-306, launched a challenge to the statute and the ordinance based on N.C. Const. art. IX, § 7; while the court concluded that the assessments in question constituted monetary payments. Shavitz v. City of High Point, 270 F. Supp. 2d 702 (M.D.N.C. 2003).


§ 160A-300.5: Repealed by Session Laws 2009-459, s. 2, effective October 1, 2009.

Editor's Note. - The former section, regulation of golf carts on streets in certain localities, was enacted by Session Laws 2006-27, ss. 1, 2 (codified at the direction of the Revisor of Statutes) and amended by Session Laws 2007-72, s. 1, 2007-336, s. 1, and 2008-71, s. 1. For present similar provisions, see G.S. 160A-300.6.


§ 160A-300.6. Regulation of golf carts on streets, roads, and highways.

  1. Notwithstanding the provisions of G.S. 20-50 and G.S. 20-54, a city may, by ordinance, regulate the operation of golf carts, as defined in G.S. 20-4.01(12b), on any public street, road, or highway where the speed limit is 35 miles per hour or less within its municipal limits or on any property owned or leased by the city.
  2. By ordinance, a city may require the registration of golf carts, charge a fee for the registration, specify who is authorized to operate golf carts, and specify the required equipment, load limits, and the hours and methods of operation of golf carts. No person less than 16 years of age may operate a golf cart on a public street, road, or highway.

History

(2009-459, s. 3.)

Editor's Note. - Session Laws 2009-459, s. 11, made this section effective October 1, 2009. Section 11 further provides: "A county may adopt an ordinance under G.S. 153A-245, and a city may adopt an ordinance under G.S. 160A-300.6 when this act becomes law, but the ordinances may not become effective prior to October 1, 2009. The repeal herein of any act does not affect the rights or liabilities of a local government that arose during the time the act was in effect, or under an ordinance adopted under such an act. If any county or city had adopted an ordinance under any act repealed by this act, and the ordinance would be permitted under G.S. 153A-245 or G.S. 160A-300.6 as enacted by this act, that ordinance shall remain in effect until amended or repealed by that county or city."


§ 160A-301. Parking.

  1. On-Street Parking. - A city may by ordinance regulate, restrict, and prohibit the parking of vehicles on the public streets, alleys, and bridges within the city. When parking is permitted for a specified period of time at a particular location, a city may install a parking meter at that location and require any person parking a vehicle therein to place the meter in operation for the entire time that the vehicle remains in that location, up to the maximum time allowed for parking there. Parking meters may be activated by coins, tokens, cash, credit cards, debit cards, or electronic means. Proceeds from the use of parking meters on public streets must be used to defray the cost of enforcing and administering traffic and parking ordinances and regulations.
  2. Off-Street Parking. - A city may by ordinance regulate the use of lots, garages, or other facilities owned or leased by the city and designated for use by the public as parking facilities. The city may impose fees and charges for the use of these facilities, and may provide for the collection of these fees and charges through parking meters, attendants, automatic gates, or any other feasible means. The city may make it unlawful to park any vehicle in an off-street parking facility without paying the established fee or charge and may ordain other regulations pertaining to the use of such facilities.
  3. Nothing contained in Public Laws 1921, Chapter 2, Section 29, or Public Laws 1937, Chapter 407, Section 61, shall be construed to affect the validity of a parking meter ordinance or the revenues realized therefrom.
  4. The governing body of any city may, by ordinance, regulate the stopping, standing, or parking of vehicles in specified areas of any parking areas or driveways of a hospital, shopping center, apartment house, condominium complex, or commercial office complex, or any other privately owned public vehicular area, or prohibit such stopping, standing, or parking during any specified hours, provided the owner or person in general charge of the operation and control of that area requests in writing that such an ordinance be adopted. The owner of a vehicle parked in violation of an ordinance adopted pursuant to this subsection shall be deemed to have appointed any appropriate law-enforcement officer as his agent for the purpose of arranging for the transportation and safe storage of such vehicle.
  5. The registered owner of a vehicle that has been leased or rented to another person or company shall not be liable for a violation of an ordinance adopted pursuant to this section if, after receiving notification of the civil violation within 90 days of the date of occurrence, the owner, within 30 days thereafter, files with the officials or agents of the municipality an affidavit including the name and address of the person or company that leased or rented the vehicle. If notification is given to the owner of the vehicle after 90 days have elapsed from the date of the violation, the owner is not required to provide the name and address of the lessee or renter, and the owner shall not be held responsible for the violation.

Revenues realized from off-street parking facilities may be pledged to amortize bonds issued to finance such facilities, or used for any other public purpose.

History

(1917, c. 136, subch. 5, s. 1; 1919, cc. 136, 237; C.S., s. 2787; 1941, c. 153, ss. 1, 2; c. 272; 1947, c. 7; 1953, c. 171; 1965, c. 945; 1971, c. 698, s. 1; 1973, c. 426, s. 48; 1979, c. 745, s. 2; 2003-380, s. 1; 2015-226, s. 1.)

Local Modification. - City of Ashville: 2001-46, s. 2, 2003-165, s. 1; city of Durham: 2014-34, s. 1; 2015-226, s. 2; city of Fayetteville: 1991 (Reg. Sess., 1992), c. 952; city of Greenville: 2001-46; city of Raleigh: 2009-164, s. 1; 2015-226, s. 2; city of Wilmington: 2001-9; 2015-226, s. 2; towns of Atlantic Beach and Beaufort: 2011-79; 2015-226, s. 2; town of Carolina Beach: 2001-9; 2015-226, s. 2; town of Chapel Hill: 2000-97, s. 3; 2001-46; 2009-164, s. 1; 2015-226, s. 2; town of Kure Beach: 2001-9; 2015-226, s. 2; town of Sunset Beach: 2016-9, s. 1; town of Wrightsville Beach: 1998-86; 2015-226, s. 2.

Editor's Note. - Session Laws 2013-360, s. 7.21(a)-(e), provides: "(a) A city or county may enter into an interagency agreement with the Department of Revenue and the Government Data Analytics Center (GDAC) to manage the collection of outstanding unpaid parking fines and penalties. The scope and manner of such collections services shall be determined by the agreement. A county or city that exercises the option to enter into such an arrangement may agree to the following, which are required terms in the agreement with the Department of Revenue and the GDAC:

"(1) That the city or county agrees to:

"a. Comply with State and federal law regarding data sharing, as appropriate.

"b. Provide for technical and business resources to support the analytics development.

"c. Provide for timely and responsive access to complete and accurate data, business rules, policies, and technical support.

"(2) That the GDAC be given access to all required information necessary to develop and support analytics allowing the identification of the owners of vehicles with associated unpaid parking fines and penalties.

"(b) In carrying out the purposes of this section and the agreements made under its provisions, the State Controller and the GDAC shall:

"(1) Ensure the security, integrity, and privacy of the data in accordance with State and federal law and as may be required by contract.

"(2) Leverage enterprise data sources, as allowed by State and federal law, and GDAC governance agreements, to provide analytics to integrate and match data to identify owner information associated with vehicles with unpaid parking fines and penalties.

"(3) Provide access to analytics reporting and information to the participating city or municipality and the Department of Revenue.

"(4) Provide data to the Department of Revenue for use in the withholding of tax refunds of persons that have unpaid parking fines and penalties.

"(c) The Department of Transportation, Division of Motor Vehicles, shall provide the GDAC with access to historical and current information required to identify owners associated with vehicles with unpaid parking fines and penalties.

"(d) The Department of Revenue shall (i) receive data from the GDAC associated with persons that have unpaid parking fines and penalties; (ii) withhold tax refunds for the purpose of the collection of those fines and penalties as allowed by law; and (iii) from the withholdings, pay to the appropriate city or county the amounts due.

"(e) Any fee imposed by the Department of Revenue or the GDAC to cover the administrative costs of withholding for the collection of unpaid parking fines and penalties shall be borne by the city or county and shall be negotiated as part of the agreements authorized by this section."

Session Laws 2013-360, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2013.' "

Session Laws 2013-360, s. 38.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium."

Session Laws 2013-360, s. 38.5, is a severability clause.

Effect of Amendments. - Session Laws 2015-226, s. 1, effective August 25, 2015, substituted "coins, tokens, cash, credit cards, debit cards, or electronic means" for "coins or tokens" in the third sentence of subsection (a).

CASE NOTES

Editor's Note. - Most of the cases cited below were decided under former G.S. 160-200(31).

A municipality may require a motorist who parks his vehicle in a parking meter zone to set the meter in operation by depositing a coin, provided that the deposit of the coin is the method selected by its governing body in the exercise of its discretion for the purpose of regulating parking in the interest of the public convenience and not as a revenue raising measure. State v. Scoggin, 236 N.C. 1, 72 S.E.2d 97 (1952).

The deposit of a coin by a motorist at the time of parking, to activate the parking meter, is not a fee, charge or toll for using the parking space, but is simply the method adopted by the governing authorities of the city for putting the meter in operation, and the revenue derived therefrom is expressly set apart and dedicated to a particular use by the legislature. Britt v. City of Wilmington, 236 N.C. 446, 73 S.E.2d 289 (1952).

But Revenue Derived Therefrom Is in the Nature of a Tax. - The revenue derived from on-street parking facilities is exacted in the performance of a governmental function, and must be set apart and used for a specific purpose. By whatever name called, it is in the nature of a tax. Britt v. City of Wilmington, 236 N.C. 446, 73 S.E.2d 289 (1952).

Validity of Making Parking Privilege Dependent on Amount of Money Placed in Meter. - Where a municipal ordinance prescribed that parking in a designated zone should be limited to one hour, a motorist could not be convicted of overtime parking for parking in such zone for less than the prescribed one-hour period; hence, an additional provision of the ordinance, that a motorist would be subject to criminal prosecution if he parked in the one-hour zone for longer than 12 minutes upon the deposit of a one-cent coin or 24 minutes upon the deposit of two one-cent coins for successive periods, was unconstitutional as being discriminatory and as making the period of time dependent not upon public convenience but upon the amount of money deposited. State v. Scoggin, 236 N.C. 1, 72 S.E.2d 97 (1952).

Where a municipal ordinance prescribes one-hour and two-hour parking meter zones upon the deposit of a five-cent coin, the ordinance may permit, by nonpenal provisions, that a motorist may deposit a one-cent coin for a shorter length of time, provided the motorist is permitted, by depositing additional pennies, not to exceed a total of five, to remain in the parking space for the total length of time prescribed by the ordinance for such zone. State v. Scoggin, 236 N.C. 1, 72 S.E.2d 97 (1952).

Contract Binding City to Enact Parking Meter Ordinance Not Authorized. - A municipality may not bind itself to enact or enforce on-street and off-street parking regulations by penal ordinance for the period during which bonds issued to provide off-street parking facilities should be outstanding, since it may not contract away or bind itself in regard to its freedom to enact governmental regulations. Britt v. City of Wilmington, 236 N.C. 446, 73 S.E.2d 289 (1952). But see, Town of Graham v. Karpark Corp., 194 F.2d 616 (4th Cir. 1952), upholding a contract with a parking meter manufacturer whereby city agreed to enact and enforce ordinances requiring parking meters until the meters were paid for.

City ordinance prohibiting parking of automobiles on one side of a street on certain blocks where, because of the narrowness of the street, there was insufficient room for cars to pass between parked cars and a streetcar track in the street, was valid in the light of former G.S. 160-200(31). State v. Carter, 205 N.C. 761, 172 S.E. 415 (1934).

Zoning amendment, which addressed the number of vehicles that could be parked on a private lot, did not address the same subject as G.S. 160A-301, which governed ordinary parking on public vehicular areas; therefore, G.S. 160A-301 is not a more "specific" statute that renders the provisions of G.S. 160A-4 inapplicable because it simply addresses a different subject. Patmore v. Town of Chapel Hill N.C. 233 N.C. App. 133, 757 S.E.2d 302, review denied, 367 N.C. 519, 758 S.E.2d 874, 2014 N.C. LEXIS 447 (2014).

Zoning Amendment and Statute Did Not Address Same Subject. - Fact that a town chose to restrict the number of cars parked on a lawn as a rough proxy for the number of tenants did not transform a zoning amendment into a "parking" ordinance because the amendment was intended to regulate the ratio of bedrooms to tenants in rental properties by restricting the number of vehicles parked in the yard; the doctrine of expressio unius est exclusio alterius was not applicable to the relationship between the statute and the zoning amendment. Patmore v. Town of Chapel Hill N.C. 233 N.C. App. 133, 757 S.E.2d 302, review denied, 367 N.C. 519, 758 S.E.2d 874, 2014 N.C. LEXIS 447 (2014).

Parking Improvements Permissible. - Parking improvements made by town constituted permissible on-street parking; thus, the trial court erred in granting plaintiff's motion for summary judgment. March v. Town of Kill Devil Hills, 125 N.C. App. 151, 479 S.E.2d 252 (1996).

Cited in Cauble v. City of Asheville, 45 N.C. App. 152, 263 S.E.2d 8 (1980).

Opinions of Attorney General

As to the validity of subsection (b), insofar as it authorizes criminal sanctions to enforce parking regulations in municipally owned off-street parking facilities, in light of Britt v. City of Wilmington, 236 N.C. 446, 73 S.E.2d 289 (1952), see opinion of Attorney General to Mr. Rufus C. Boutwell, Jr., 43 N.C.A.G. 141 (1973).


§ 160A-302. Off-street parking facilities.

A city shall have authority to own, acquire, establish, regulate, operate, and control off-street parking lots, parking garages, and other facilities for parking motor vehicles, and to make a charge for the use of such facilities.

History

(1917, c. 136, subch. 5, s. 1; 1919, cc. 136, 237; C.S., s. 2787; 1941, c. 153, ss. 1, 2; c. 272; 1947, c. 7; 1953, c. 171; 1965, c. 945; 1971, c. 698, s. 1.)

Local Modification. - City of Asheboro: 2012-105, s. 1 (as to city-owned parking lot utilized as part of Downtown Farmers' Market).

§ 160A-302.1. Fishing from bridges regulated.

The governing body of any city is hereby authorized to enact an ordinance prohibiting or regulating fishing from any bridge for the purpose of protecting persons fishing on the bridge from passing vehicular or rail traffic. Such ordinance may also prohibit or regulate fishing from any bridge one mile beyond the corporate limits of the city where the board or boards of county commissioners by resolution agree to such prohibition or regulation; provided, however, that the board or boards of county commissioners may upon 30 days' written notice withdraw their respective approval of the municipal ordinance, and that ordinance shall have no further effect within that county's jurisdiction. The ordinance shall provide that signs shall be posted on any bridge where fishing is prohibited or regulated reflecting such prohibition or regulation. In any event, no one may fish from the drawspan of any regularly attended drawbridge.

The police department of the city is hereby vested with the jurisdiction and authority to enforce any ordinance passed pursuant to this section.

The authority granted under the provisions of this section shall be subject to the authority of the Board of Transportation to prohibit fishing on any bridge on the State highway system.

History

(1971, c. 690, ss. 2, 3, 6; c. 896, s. 15; 1973, c. 426, s. 49; c. 507, s. 5.)

Editor's Note. - This section was originally codified as subdivision (47) of former G.S. 160-200. It was transferred to its present position by Session Laws 1971, c. 896, s. 15.

CASE NOTES

Cited in King v. Town of Chapel Hill, 367 N.C. 400, 758 S.E.2d 364 (2014).


§ 160A-303. Removal and disposal of junked and abandoned motor vehicles.

  1. A city may by ordinance prohibit the abandonment of motor vehicles on the public streets or on public or private property within the city, and may enforce any such ordinance by removing and disposing of junked or abandoned motor vehicles according to the procedures prescribed in this section.
  2. A motor vehicle is defined to include all machines designed or intended to travel over land or water by self-propulsion or while attached to any self-propelled vehicle.
  3. An abandoned motor vehicle is one that:
    1. Has been left upon a street or highway in violation of a law or ordinance prohibiting parking; or
    2. Is left on property owned or operated by the city for longer than 24 hours; or
    3. Is left on private property without the consent of the owner, occupant, or lessee thereof for longer than two hours; or
    4. Is left on any public street or highway for longer than seven days or is determined by law enforcement to be a hazard to the motoring public.
  4. A junked motor vehicle is an abandoned motor vehicle that also:
    1. Is partially dismantled or wrecked; or
    2. Cannot be self-propelled or moved in the manner in which it was originally intended to move; or
    3. Is more than five years old and worth less than one hundred dollars ($100.00) or is more than five years old and worth less than five hundred dollars ($500.00) as provided by the municipality in an ordinance adopted under this section; or
    4. Repealed by Session Laws 2009-97, s. 1, effective October 1, 2009.
    5. Does not display a current license plate.
  5. Any junked or abandoned motor vehicle found to be in violation of an ordinance adopted under this section may be removed to a storage garage or area, but no such vehicle shall be removed from private property without the written request of the owner, lessee, or occupant of the premises unless the council or a duly authorized city official or employee has declared it to be a health or safety hazard. The city may require any person requesting the removal of a junked or abandoned motor vehicle from private property to indemnify the city against any loss, expense, or liability incurred because of the removal, storage, or sale thereof. When an abandoned or junked motor vehicle is removed, the city shall give notice to the owner as required by G.S. 20-219.11(a) and (b).
  6. Hearing Procedure. - Regardless of whether a city does its own removal and disposal of motor vehicles or contracts with another person to do so, the city, shall provide a hearing procedure for the owner. For purposes of this subsection, the definitions in G.S. 20-219.9 apply.
    1. If the city operates in such a way that the person who tows the vehicle is responsible for collecting towing fees, all provisions of Article 7A, Chapter 20, apply.
    2. If the city operates in such a way that it is responsible for collecting towing fees, it shall:
      1. Provide by contract or ordinance for a schedule of reasonable towing fees,
      2. Provide a procedure for a prompt fair hearing to contest the towing,
      3. Provide for an appeal to district court from that hearing,
      4. Authorize release of the vehicle at any time after towing by the posting of a bond or paying of the fees due, and
      5. Provide a sale procedure similar to that provided in G.S. 44A-4, 44A-5, and 44A-6, except that no hearing in addition to the probable cause hearing is required. If no one purchases the vehicle at the sale and if the value of the vehicle is less than the amount of the lien, the city may destroy it.
  7. Repealed by Session Laws 1983, c. 420, s. 13.
  8. No person shall be held to answer in any civil or criminal action to any owner or other person legally entitled to the possession of any abandoned, lost, or stolen motor vehicle for disposing of the vehicle as provided in this section.
  9. Nothing in this section shall apply to any vehicle in an enclosed building or any vehicle on the premises of a business enterprise being operated in a lawful place and manner if the vehicle is necessary to the operation of the enterprise, or to any vehicle in an appropriate storage place or depository maintained in a lawful place and manner by the city.
  10. Repealed by Session Laws 1983, c. 420, s. 13, effective July 1, 1983.

History

(1965, c. 1156; 1967, cc. 1215, 1250; 1971, c. 698, s. 1; 1973, c. 426, s. 50; 1975, c. 716, s. 5; 1983, c. 420, ss. 11-13; 1997-456. s. 27; 2005-10, ss. 1, 3; 2006-15, s. 1; 2006-166, s. 2; 2006-171, s. 1; 2007-208, s. 1; 2009-97, s. 1; 2010-132, s. 20.)

Local Modification. - Cities of Durham: 1987, c. 755; Winston-Salem: 1995, c. 92, s. 1; 2000-104, s. 1; Towns of Carrboro: 1987, c. 476, s. 1; Garner: 1979, c. 270; Wrightsville Beach: 2011-82.

Editor's Note. - The subsection (b1) and (b2) designations were inserted pursuant to Session Laws 1997-456, s. 27 which authorized the Revisor of Statutes to renumber or reletter sections and parts of sections having a number or letter designation that is incompatible with the General Assembly's computer database.

Since Session Laws 2005-10, ss. 1, 3, as amended by Session Laws 2006-15, s. 1, and as amended by 2006-166, s. 2, and as amended by Session Laws 2006-171, s. 1, now applies to 10 or more jurisdictions, it has been codified as subdivision (b2)(3a) of this section at the direction of the Revisor of Statutes.

Session Laws 2009-97, s. 3, provides: "This act [s. 1 of which amended subdivision (b2)(3) and deleted (b2)(3a)] is effective when it becomes law, but the repeal of G.S. 160A-303(b2)(3a) and G.S. 160A-303.2(a)(4) become effective October 1, 2009. A municipality may adopt an ordinance under G.S. 160A-303(b2)(3) or G.S. 160A-303.2(a)(3) when this act becomes law, but the ordinance may not become effective prior to October 1, 2009."

Effect of Amendments. - Session Laws 2007-208, s. 1, effective July 11, 2007, in subdivision (b2)(3a), added references to the cities of Eden, Greensboro, High Point, and Reidsville and the towns of Ayden, Cornelius, Davidson, Huntersville, and Spring Lake.

Session Laws 2010-132, s. 20, effective December 1, 2010, and applicable to offenses committed on or after that date, added "or is determined by law enforcement to be a hazard to the motoring public" at the end of subdivision (b1)(4).

CASE NOTES

A city may make provision for the removal of motor vehicles abandoned or disabled in its streets so as to promote the free flow of traffic therein. S & R Auto & Truck Serv., Inc. v. City of Charlotte, 268 N.C. 374, 150 S.E.2d 743 (1966), decided under former G.S. 160-200(44).


§ 160A-303.1. Regulation of the placing of trash, refuse and garbage within municipal limits.

The governing body of any municipality is hereby authorized to enact an ordinance prohibiting the placing, discarding, disposing or leaving of any trash, refuse or garbage upon a street or highway located within that municipality or upon property owned or operated by the municipality unless such garbage, refuse or trash is placed in a designated location or container for removal by a specific garbage or trash service collector. Any ordinance adopted pursuant hereto may prohibit the placing, discarding, disposing or leaving of any trash, refuse or garbage upon private property located within the municipality without the consent of the owner, occupant, or lessee thereof and may provide that the placing, discarding, disposing or leaving of the articles forbidden by this section shall, for each day or portion thereof the articles or matter are left, constitute a separate offense.

The governing body of a municipality, in any ordinance adopted pursuant hereto, may provide that a person who violates the ordinance may be punished by a fine not exceeding fifty dollars ($50.00) or imprisoned not exceeding 30 days, or both, for each offense.

History

(1973, c. 953.)

§ 160A-303.2. Regulation of abandonment of junked motor vehicles.

  1. A municipality may by ordinance regulate, restrain or prohibit the abandonment of junked motor vehicles on public grounds and on private property within the municipality's ordinance-making jurisdiction upon a finding that such regulation, restraint or prohibition is necessary and desirable to promote or enhance community, neighborhood or area appearance, and may enforce any such ordinance by removing or disposing of junked motor vehicles subject to the ordinance according to the procedures prescribed in this section. The authority granted by this section shall be supplemental to any other authority conferred upon municipalities. Nothing in this section shall be construed to authorize a municipality to require the removal or disposal of a motor vehicle kept or stored at a bona fide "automobile graveyard" or "junkyard" as defined in G.S. 136-143.
    1. Is partially dismantled or wrecked; or
    2. Cannot be self-propelled or moved in the manner in which it originally was intended to move; or
    3. Is more than five years old and appears to be worth less than one hundred dollars ($100.00) or is more than five years old and appears to be worth less than five hundred dollars ($500.00) as provided by the municipality in an ordinance adopted under this section.
    4. Repealed by Session Laws 2009-97, s. 2, effective October 1, 2009.
  2. Any junked motor vehicle found to be in violation of an ordinance adopted pursuant to this section may be removed to a storage garage or area, but no such vehicle shall be removed from private property without the written request of the owner, lessee, or occupant of the premises unless the council or a duly authorized city official or employee finds in writing that the aesthetic benefits of removing the vehicle outweigh the burdens imposed on the private property owner. Such finding shall be based on a balancing of the monetary loss of the apparent owner against the corresponding gain to the public by promoting or enhancing community, neighborhood or area appearance. The following, among other relevant factors, may be considered:
    1. Protection of property values;
    2. Promotion of tourism and other economic development opportunities;
    3. Indirect protection of public health and safety;
    4. Preservation of the character and integrity of the community; and
    5. Promotion of the comfort, happiness, and emotional stability of area residents.
  3. The city may require any person requesting the removal of a junked or abandoned motor vehicle from private property to indemnify the city against any loss, expense, or liability incurred because of the removal, storage, or sale thereof. When an abandoned or junked motor vehicle is removed, the city shall give notice to the owner as required by G.S. 20-219.11(a) and (b).
  4. Hearing Procedure. - Regardless of whether a city does its own removal and disposal of motor vehicles or contracts with another person to do so, the city shall provide a prior hearing procedure for the owner. For purposes of this subsection, the definitions in G.S. 20-219.9 apply.
    1. If the city operates in such a way that the person who tows the vehicle is responsible for collecting towing fees, all provisions of Article 7A, Chapter 20, apply.
    2. If the city operates in such a way that it is responsible for collecting towing fees, it shall:
      1. Provide by contract or ordinance for a schedule of reasonable towing fees,
      2. Provide a procedure for a prompt fair hearing to contest the towing,
      3. Provide for an appeal to district court from that hearing,
      4. Authorize release of the vehicle at any time after towing by the posting of a bond or paying of the fees due, and
      5. Provide a sale procedure similar to that provided in G.S. 44A-4, 44A-5, and 44A-6, except that no hearing in addition to the probable cause hearing is required. If no one purchases the vehicle at the sale and if the value of the vehicle is less than the amount of the lien, the city may destroy it.
  5. Any person who removes a vehicle pursuant to this section shall not be held liable for damages for the removal of the vehicle to the owner, lienholder or other person legally entitled to the possession of the vehicle removed; however, any person who intentionally or negligently damages a vehicle in the removal of such vehicle, or intentionally or negligently inflicts injury upon any person in the removal of such vehicle, may be held liable for damages.
  6. Any ordinance adopted pursuant to this section shall include a prohibition against removing or disposing of any motor vehicle that is used on a regular basis for business or personal use.

For purposes of this section, the term "junked motor vehicle" means a vehicle that does not display a current license plate and that:

History

(1983, c. 841, s. 2; 1985, c. 737, s. 2; 1987, c. 42, s. 2; c. 451, s. 2; 1989, c. 3; c. 743, s. 2; 2005-10, ss. 2, 3; 2006-15, s. 3; 2006-166, s. 2; 2006-171, s. 1; 2007-208, s. 2; 2007-505, s. 3; 2009-97, s. 2.)

Local Modification. - City of Albemarle: 2002-80, s. 1; city of Greenville: 1998-80; 2004-30, s. 1; city of Henderson: 2004-30, s. 1; city of Jacksonville: 2005-25, s. 1 (as to subsection (a)); city of Lumberton: 1995, c. 53, ss. 1, 2; city of Winston-Salem: 2000-104, s. 2; town of Matthews: 2004-30, s. 2; 2005-24, s. 1; town of Waynesville: 2004-30, s. 1.

Editor's Note. - As enacted by Session Laws 1983, c. 841, s. 2, effective October 1, 1983, this section was applicable only to municipalities in the Counties of Dare, Stokes, Alleghany, Carteret and Columbus. Subsequently, Session Laws 1985, c. 737, s. 2, effective July 12, 1985, amended this section by making it applicable to an additional 19 counties. At the direction of the Revisor of Statutes, the section was set out above as G.S. 160A-303.2.

Later amendments added additional counties to the list of those to which the section was applicable.

Session Laws 1989, c. 743, s. 2, deleted "in municipalities in certain counties" from the end of the catchline, and rewrote this section.

Session Laws 1989, c. 743, s. 4 provided that the act does not affect the validity of any ordinance passed prior to October 1, 1989.

Since Session Laws 2005-10, ss. 2, 3, as amended by Session Laws 2006-15, s. 1, and as amended by 2006-166, s. 2, and as amended by Session Laws 2006-171, s. 1, now applies to 10 or more jurisdictions, it has been codified as subdivision (a)(4) of this section at the direction of the Revisor of Statutes.

Session Laws 2009-97, s. 3, provides: "This act [s. 1 of which amended subdivision (a)(3) and deleted (a)(4)] is effective when it becomes law [June 11, 2009], but the repeal of G.S. 160A-303(b2)(3a) and G.S. 160A-303.2(a)(4) become effective October 1, 2009. A municipality may adopt an ordinance under G.S. 160A-303(b2)(3) or G.S. 160A-303.2(a)(3) when this act becomes law, but the ordinance may not become effective prior to October 1, 2009."

Effect of Amendments. - Session Laws 2007-208, s. 2, effective July 11, 2007, in subdivision (a)(4), inserted references to the cities of Eden, Greensboro, High Point, and Reidsville, and the towns of Ayden, Cornelius, Davidson, Huntersville, and Spring Lake.

Session Laws 2007-505, s. 3, effective August 30, 2007, inserted "Monroe" in subdivision (a)(4).

§ 160A-304. Regulation of taxis.

  1. A city may by ordinance license and regulate all vehicles operated for hire in the city. The ordinance may require that the drivers and operators of taxicabs engaged in the business of transporting passengers for hire over the public streets shall obtain a license or permit from the city; provided, however, that the license or permit fee for taxicab drivers shall not exceed fifteen dollars ($15.00). As a condition of licensure, the city may require an applicant for licensure to pass a controlled substance examination. The ordinances may also specify the types of taxicab services that are legal in the municipality; provided, that in all cases shared-ride services as well as exclusive-ride services shall be legal. Shared-ride service is defined as a taxi service in which two or more persons with either different origins or with different destinations, or both, occupy a taxicab at one time. Exclusive-ride service is defined as a taxi service in which the first passenger or party requests exclusive use of the taxicab. In the event the applicant is to be subjected to a national criminal history background check, the ordinance shall specifically authorize the use of FBI records. The ordinance shall require any applicant who is subjected to a national criminal history background check to be fingerprinted.
    1. Conviction of a felony against this State, or conviction of any offense against another state which would have been a felony if committed in this State;
    2. Violation of any federal or State law relating to the use, possession, or sale of alcoholic beverages or narcotic or barbiturate drugs;
    3. Addiction to or habitual use of alcoholic beverages or narcotic or barbiturate drugs;
    4. Violation of any federal or State law relating to prostitution;
    5. Noncitizenship in the United States;
    6. Habitual violation of traffic laws or ordinances.
  2. When a city ordinance grants a taxi franchise for operation of a stated number of taxis within the city, the holder of the franchise shall report at least quarterly to the council the average number of taxis actually in operation during the preceding quarter. The council may amend a taxi franchise to reduce the number of authorized vehicles by the average number not in actual operation during the preceding quarter, and may transfer the unused allotment to another franchised operator. Such amendments of taxi franchises shall not be subject to G.S. 160A-76. Allotments of taxis among franchised operators may be transferred only by the city council, and it shall be unlawful for any franchised operator to sell, assign, or otherwise transfer allotments under a taxi franchise.
  3. Nothing in this Chapter authorizes a city to adopt an ordinance doing any of the following with respect to a TNC service regulated under Article 10A of Chapter 20 of the General Statutes:
    1. Requiring licensing or regulating.
    2. through (5) Repealed by Session Laws 2015-237, s. 6, effective October 1, 2015.

The Department of Public Safety may provide a criminal record check to the city for a person who has applied for a license or permit through the city. The city shall provide to the Department of Public Safety, along with the request, the fingerprints of the applicant, any additional information required by the Department of Public Safety, and a form signed by the applicant consenting to the check of the criminal record and to the use of the fingerprints and other identifying information required by the State or national repositories. The applicant's fingerprints shall be forwarded to the State Bureau of Investigation for a search of the State's criminal history record file, and the State Bureau of Investigation shall forward a set of the fingerprints to the Federal Bureau of Investigation for a national criminal history check. The city shall keep all information pursuant to this subsection privileged, in accordance with applicable State law and federal guidelines, and the information shall be confidential and shall not be a public record under Chapter 132 of the General Statutes.

The Department of Public Safety may charge each applicant a fee for conducting the checks of criminal history records authorized by this subsection.

The following factors shall be deemed sufficient grounds for refusing to issue a permit or for revoking a permit already issued:

The ordinance may also require operators and drivers of taxicabs to display prominently in each taxicab, so as to be visible to the passengers, the city taxi permit, the schedule of fares, a photograph of the driver, and any other identifying matter that the council may deem proper and advisable. The ordinance may also establish rates that may be charged by taxicab operators, may limit the number of taxis that may operate in the city, and may grant franchises to taxicab operators on any terms that the council may deem advisable.

(6) Requiring or prohibiting taxi franchises or taxi operators from contracting with a transportation network company regulated under Article 10A of Chapter 20 of the General Statutes.

History

(1943, c. 639, s. 1; 1945, c. 564, s. 2; 1971, c. 698, s. 1; 1981, c. 412, s. 4; c. 606, s. 5; c. 747, s. 66; 1987, c. 777, s. 7; 2002-147, s. 14; 2003-65, s. 1; 2013-413, s. 12.1(b); 2014-100, s. 17.1(o); 2014-115, s. 17; 2015-237, s. 6.)

Editor's Note. - Session Laws 2014-100, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2014.'"

Session Laws 2014-100, s. 38.7, is a severability clause.

Effect of Amendments. - Session Laws 2013-413, s. 12.1(b), added subsection (c). For effective date, see Editor's note.

Session Laws 2014-100, s. 17.1(o), effective July 1, 2014, substituted "Department of Public Safety" for "Department of Justice" in the second and third paragraphs of subsection (a).

Session Laws 2015-237, s. 6, effective October 1, 2015, rewrote subsection (c).

CASE NOTES

Editor's Note. - Most of the cases cited below were decided under former G.S. 160-200(35) and (36a).

The word "franchise" denotes a right or privilege conferred by law, that is, a special privilege conferred by government on an individual, natural or corporate, which is not enjoyed by its citizens generally, of common right. Ordinarily the grant of a franchise when accepted and acted on creates a contract which is binding on the grantor and the grantee. Hence, the grant of a franchise contemplates, and usually embraces, express conditions and stipulations as to standards of service, and so forth, which the grantee or holder of the franchise must perform. Victory Cab Co. v. City of Charlotte, 234 N.C. 572, 68 S.E.2d 433 (1951).

Ordinance Regulating Taxicabs Presumed to Be Valid. - In the exercise of their delegated power to license, regulate, and control the operators and drivers of taxicabs, it is the duty of the municipal authorities, in their sound discretion, to determine what ordinances or regulations are reasonably necessary for the protection of the public or the better government of the town; and when in the exercise of such discretion and ordinance is adopted, it is presumed to be valid, and the courts will not declare it invalid unless it is clearly shown to be so. State v. Stallings, 230 N.C. 252, 52 S.E.2d 901 (1949); Victory Cab Co. v. Shaw, 232 N.C. 138, 59 S.E.2d 573 (1950).

Former G.S. 160-200(36a) did not authorize city to impose exactions on taxicabs beyond the limits fixed by G.S. 20-97, subsections (a) and (b). Victory Cab Co. v. City of Charlotte, 234 N.C. 572, 68 S.E.2d 433 (1951).

Requiring Taxicab Drivers to Wear Distinctive Insignia. - It is not an unlawful, unreasonable, or arbitrary exercise of its delegated police power for a city to require, as a condition incident to the privilege of operating a taxicab on its streets, that the driver of such taxicab shall wear a distinctive cap or other insignia while operating same, to show that he is a duly licensed taxicab driver. Such a requirement would seem to be reasonable and a protection to the public against unlicensed drivers or operators. State v. Stallings, 230 N.C. 252, 52 S.E.2d 901 (1949).

Requiring Taxicab Operators to Secure Liability Insurance. - An ordinance requiring operators of taxicabs or other motor vehicles for hire to secure liability insurance or enter into bond with personal or corporate surety is a valid exercise of the police power and does not violate the U.S. Const., Amend. XIV, the operation of vehicles for gain being a special and extraordinary use of a city's streets, which the city has the power to condition by ordinance uniform upon all coming within the classification. Watkins v. Iseley, 209 N.C. 256, 183 S.E. 365 (1936).

Coverage of Indemnity Bond or Deposit. - An indemnity bond for a taxi corporation did not cover liability for injuries inflicted prior to the execution of the bond. Manheim v. Virginia Sur. Co., 215 N.C. 693, 3 S.E.2d 16 (1939).

Where a municipal ordinance required taxicab operators to deposit insurance, surety bonds, or cash or securities, conditioned upon the payment of a final judgment in favor of any person injured by the operation of a cab over the municipal streets, the cash or securities deposited for the operation of cabs under a stipulated trade name, filed with the municipality under an agreement pursuant to the ordinance, did not cover a final judgment for injuries to a garage mechanic from the negligent operation of the cab while on private garage premises. Perrell v. Beaty Serv. Co., 248 N.C. 153, 102 S.E.2d 785 (1958).

Cited in State v. Johnson, 42 N.C. App. 234, 256 S.E.2d 297 (1979); King v. Town of Chapel Hill, 367 N.C. 400, 758 S.E.2d 364 (2014).

Opinions of Attorney General

Subdivision (a)(2) does not prohibit issuance of taxi operator's permit where the applicant therefor has a prior conviction for possession or sale of intoxicating liquors. See opinion of Attorney General to Mr. Joe Chandler, City Attorney, Elizabethtown, N.C. 47 N.C.A.G. 74 (1977).

§ 160A-305. Agreements under National Highway Safety Act.

Any city is hereby authorized to enter into agreements with the State of North Carolina and its agencies, and with the federal government and its agencies, to secure the full benefits available to the city under the National Highway Safety Act of 1966, and to cooperate with State and federal agencies, other public and private agencies, interested organizations, and individuals, to effectuate the purposes of the act and subsequent amendments thereof.

History

(1967, c. 1255; 1971, c. 698, s. 1.)

§ 160A-306. Building setback lines.

  1. A city shall have authority to (i) classify all or a portion of the streets in the city according to their size, present and anticipated traffic loads, and other characteristics relevant to the achievement of the purposes of this section, and (ii) establish by ordinance minimum distances that buildings and other permanent structures or improvements constructed along each class or type of street shall be set back from the right-of-way line or the center line of an existing or proposed street. Portions of any street may be classified in a manner different from other portions of the same street where the characteristics of the portions differ.
  2. Any setback line shall be designed
    1. To promote the public safety by providing adequate sight distances for persons using the street and its sidewalks, lessening congestion in the street and sidewalks, facilitating the safe movement of vehicular and pedestrian traffic on the street and sidewalks and providing adequate fire lanes between buildings, and
    2. To protect the public health by keeping dwellings and other structures an adequate distance from the dust, noise, and fumes created by traffic on the street and by insuring an adequate supply of light and air.
  3. A setback-line ordinance shall permit affected property owners to appeal to the council for variance or modification of setback requirements as they apply to a particular piece of property. The council may vary or modify the requirements upon a showing that
    1. The peculiar nature of the property results in practical difficulties or unnecessary hardships that impede carrying out the strict letter of the requirement.
    2. The property will not yield a reasonable return or cannot be put to reasonable use unless relief is granted, and
    3. Balancing the public interest in enforcing the setback requirements and the interest of the owner, the grant of relief is required by considerations of justice and equity.

In granting relief, the council may impose reasonable and appropriate conditions and safeguards to protect the interest of neighboring properties. The council may delegate authority to hear appeals under setback-line ordinances to any authorized body to hear appeals under zoning ordinances. If this is done, appeal to the council from the board shall be governed by the same laws and rules as appeals from decisions granting or denying variances or modifications under the zoning ordinance.

History

(1971, c. 698, s. 1; 1987, c. 747, ss. 13, 14.)

§ 160A-307. Curb cut regulations.

  1. A city may by ordinance regulate the size, location, direction of traffic flow, and manner of construction of driveway connections into any street or alley. The ordinance may require the construction or reimbursement of the cost of construction and public dedication of medians, acceleration and deceleration lanes, and traffic storage lanes for driveway connections into any street or alley if all of the following apply:
    1. The need for such improvements is reasonably attributable to the traffic using the driveway.
    2. The improvements serve the traffic of the driveway.
  2. No street or alley under the control of the Department of Transportation may be improved without the consent of the Department of Transportation. A city shall not require the applicant to acquire right-of-way from property not owned by the applicant. However, an applicant may voluntarily agree to acquire such right-of-way.

History

(1971, c. 698, s. 1; 1987, c. 747, s. 16; 2019-111, s. 1.16.)

Editor's Note. - Session Laws 2019-111, s. 2.8, is a severability clause.

Session Laws 2019-111, s. 3.1, made the rewriting of this section by Session Laws 2019-111, s. 1.16, effective July 11, 2019, and applicable to applications for down zoning amendments and for driveway improvements submitted on or after that date and to appeals from decisions related to such applications filed on or after that date.

Effect of Amendments. - Session Laws 2019-111, s. 1.16, designated the previously existing provisions as subsections (a) and (b); in subsection (a), added "all of the following apply" near the end of the introductory language; and, in subsection (b), deleted the former last sentence, which read: "However, if there is a conflict between the written driveway regulations of the Department of Transportation and the related driveway improvements required by the city, the more stringent requirement shall apply.", added the last two sentences, and made a minor stylistic change. For effective date and applicability, see editor's note.

CASE NOTES

Cited in Lambeth v. Town of Kure Beach, 157 N.C. App. 349, 578 S.E.2d 688 (2003).


§ 160A-307.1. Limitation on city requirements for street improvements related to schools.

A city may only require street improvements related to schools that are required for safe ingress and egress to the municipal street system and that are physically connected to a driveway on the school site. The required improvements shall not exceed those required pursuant to G.S. 136-18(29). G.S. 160A-307 shall not apply to schools. A city may only require street improvements related to schools as provided in G.S. 160A-372. The cost of any improvements to the municipal street system pursuant to this section shall be reimbursed by the city. Any agreement between a school and a city to make improvements to the municipal street system shall not include a requirement for acquisition of right-of-way by the school, unless the school is owned by an entity that has eminent domain power. Any right-of-way costs incurred by a school for required improvements pursuant to this section shall be reimbursed by the city. Notwithstanding any provision of this Chapter to the contrary, a city may not condition the approval of any zoning, rezoning, or permit request on the waiver or reduction of any provision of this section. The term "school," as used in this section, means any facility engaged in the educational instruction of children in any grade or combination of grades from kindergarten through the twelfth grade at which attendance satisfies the compulsory attendance law and includes charter schools authorized under G.S. 115C-218.5.

History

(2017-57, s. 34.6A(b); 2017-197, s. 7.5; 2018-5, s. 34.18(a); 2018-97, s. 7.4(a); 2018-114, s. 26.)

Editor's Note. - Session Laws 2017-57, s. 34.6A(h), as amended by 2017-197, s. 7.5, made this section effective August 1, 2017, and applicable to school openings, relocations, and expansions on or after that date.

Session Laws 2017-57, s. 34.6A(c)-(g), provides: "(c) The Department of Transportation, in collaboration with the Department of Public Instruction, shall develop a report covering the period from July 1, 2015, through July 1, 2017, that provides all of the following information:

"(1) All schools, including private and charter, that have been opened, relocated, or expanded.

"(2) The types of road improvements required for each school identified in subdivision (1) of this subsection.

"(3) Whether each road improvement identified in subdivision (2) of this subsection is to a road maintained by the State or a municipality.

"(4) Whether each road improvement identified in subdivision (2) of this subsection is to a road adjacent to the school property.

"(5) A description of any disputes or appeals raised by the schools identified in subdivision (1) of this subsection concerning the road improvements identified in subdivision (2) of this subsection.

"(6) The total cost for each road improvement identified under subdivision (2) of this subsection.

"(7) The funding source for the payment of the costs incurred for each road improvement identified in subdivision (2) of this subsection.

"(d) In addition to the information required under subdivisions (1) through (5) of subsection (c) of this section, and for the period covering July 2, 2017, through July 1, 2020, the report required under subsection (c) of this section shall identify (i) the number of schools, including private and charter, that will be opened, relocated, or expanded, (ii) the types of road improvements anticipated to be required for each school identified, and (iii) the total cost for each road improvement anticipated to be required for each school identified.

"(e) The Department of Transportation shall submit the report required under subsection (c) of this section to the Joint Legislative Transportation Oversight Committee and the Joint Legislative Education Oversight Committee by February 1, 2018.

"(f) Any rule or policy adopted by the Department of Transportation that does not comply with the provisions of this section shall be null, void, and without effect.

"(g) The Department of Transportation may adopt temporary rules to implement the provisions of this section. Any temporary rules adopted in accordance with this section shall remain in effect until permanent rules that replace the temporary rules become effective."

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium."

Session Laws 2017-57, s. 39.6, is a severability clause.

Session Laws 2018-5, s. 34.18(c), made the next-to-last sentence of this section, as added by Session Laws 2018-5, s. 34.18(a), effective June 12, 2018, and applicable retroactively to August 1, 2017. Session Laws 2018-5, s. 34.18(c), further provides: "Any ordinance, resolution, regulation, or policy in effect on or after August 1, 2017, that violates or is not consistent with the provisions of this section is null and void as of the effective date of this section."

Session Laws 2018-97, s. 7.4(b), provides "This section is effective when it becomes law and applies retroactively to August 1, 2017. Any ordinance, resolution, regulation, or policy in effect on or after August 1, 2017, affected by the amendment to G.S. 160A-307.1 in Senate Bill 99, 2017 Regular Session, that was nullified pursuant to Section 34.18(c) of that act, is reinstated."

Session Laws 2018-114, s. 26, effective June 27, 2018, repealed Session Laws 2018-97, s. 24(a), (b), which had amended G.S. 160A-307.1.

Session Laws 2018-5, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2018.'"

Session Laws 2018-5, s. 39.7, is a severability clause.

Sessions Laws 2018-114, s. 29, is a severability clause.

Effect of Amendments. - Session Laws 2018-5, s. 34.18(a), added the next-to-last sentence. For effective date and applicability, see editor's note.

Session Laws 2018-97, s. 7.4(a), deleted the penultimate sentence. For effective date, applicability, and repeal of this amendment, see editor's notes.

§ 160A-308. Regulation of dune buggies.

A municipality may by ordinance regulate, restrict and prohibit the use of dune or beach buggies, jeeps, motorcycles, cars, trucks, or any other form of power-driven vehicle specified by the governing body of the municipality on the foreshore, beach strand and the barrier dune system. Violation of any ordinance adopted by the governing body of a municipality pursuant to this section is a Class 3 misdemeanor.

Provided, a municipality shall not prohibit the use of such specified vehicles from the foreshore, beach strand and barrier dune system by commercial fishermen for commercial activities. Commercial fishermen, however, shall abide by all other regulations or restrictions duly enacted by municipalities under this section.

History

(1973, cc. 856, 1401; 1993, c. 539, s. 1086; 1994, Ex. Sess., c. 14, s. 68; c. 24, s. 14(c).)

Local Modification. - Town of Wrightsville Beach: 1989, c. 611, s. 1, as amended by 2005-265, s. 1.

CASE NOTES

Regulatory Taking. - Property owners could not establish that beach driving ordinances constituted physical invasion of their property for purposes of the Takings Clause of the Fifth Amendment because the town had the authority to both ensure public access to its ocean beaches and to impose appropriate regulations pursuant to its police power; the ordinances did not create a right of the public relative to the property but regulated a right that the public already enjoyed. Nies v. Town of Emerald Isle, 244 N.C. App. 81, 780 S.E.2d 187 (2015), appeal dismissed, 793 S.E.2d 699, 2016 N.C. LEXIS 1014 (2016), cert. denied, mot. granted, 138 S. Ct. 75, 2017 U.S. LEXIS 4978, 199 L. Ed. 2d 184 (U.S. 2017).


§ 160A-309. Intersection and roadway improvements.

A city may contract with a developer or property owner, or with a private party who is under contract with the developer or property owner, for public intersection or roadway improvements that are adjacent or ancillary to a private land development project. Such a contract is not subject to Article 8 of Chapter 143 of the General Statutes if the public cost will not exceed two hundred fifty thousand dollars ($250,000) and the city or its designated agency determines that: (i) the public cost will not exceed the estimated cost of providing for those public intersection or roadway improvements through either eligible force account qualified labor or through a public contract let pursuant to Article 8 of Chapter 143 of the General Statutes; or (ii) the coordination of separately constructed public intersection or roadway improvements, and the adjacent or ancillary private land development improvements would be impracticable. A city may enact ordinances and policies setting forth the procedures, requirements, and terms for agreements authorized by this section.

History

(2005-426, s. 8(c).)

§ 160A-310: Reserved for future codification purposes.

ARTICLE 16. Public Enterprises.

Part 1. General Provisions.

Sec.

Part 2. Electric Service in Urban Areas.

PART 1. GENERAL PROVISIONS.

§ 160A-311. Public enterprise defined.

As used in this Article, the term "public enterprise" includes:

  1. Electric power generation, transmission, and distribution systems.
  2. Water supply and distribution systems.
  3. Wastewater collection, treatment, and disposal systems of all types, including septic tank systems or other on-site collection or disposal facilities or systems.
  4. Gas production, storage, transmission, and distribution systems, where systems shall also include the purchase or lease of natural gas fields and natural gas reserves, the purchase of natural gas supplies, and the surveying, drilling and any other activities related to the exploration for natural gas, whether within the State or without.
  5. Public transportation systems.
  6. Solid waste collection and disposal systems and facilities.
  7. Cable television systems.
  8. Off-street parking facilities and systems.
  9. Airports.
  10. Stormwater management programs designed to protect water quality by controlling the level of pollutants in, and the quantity and flow of, stormwater and structural and natural stormwater and drainage systems of all types.

History

(1971, c. 698, s. 1; 1975, c. 549, s. 2; c. 821, s. 3; 1977, c. 514, s. 2; 1979, c. 619, s. 2; 1989, c. 643, s. 5; 1991 (Reg. Sess., 1992), c. 944, s. 14; 2000-70, s. 3.)

Local Modification. - (As to Article 16) Henderson: 2014-51, s. 1 (expires December 31, 2016); (As to Article 16) city of Asheville: 2014-51, s. 1 (expires December 31, 2016); town of Kure Beach: 1997-94 town of Stallings: 1991, c. 16; town of Ocean Isle Beach: 2000-43, s. 1; town of White Lake: 1993 (Reg. Sess., 1994), c. 631, s. 1; village of Bald Head Island: 1991, c. 16; 2014-23, s. 3(a); village of Pinehurst: 1985, c. 379, s. 3.

Rural Economic Development Center to Report on Progress of Water and Sewer Improvement Grants. - Session Laws 2009-451, s. 14.31, provides: "By September 1 of each year, and more frequently as requested, the North Carolina Rural Economic Development Center, Inc., shall report to the Joint Legislative Commission on Governmental Operations and the Fiscal Research Division concerning the progress of the water/sewer improvement grants (commonly referred to as funding for Clean Water Partners) as appropriated in Section 13.13A of S.L. 2007-323 and Section 13.8 of S.L. 2008-107. Each report shall include a list of grants made since the last report, the total amount contracted, and the amount of funds remaining. This reporting requirement shall replace all previous reporting requirements and shall remain in effect until all funds from this program are expended."

Session Laws 2009-451, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2009'."

Session Laws 2009-451, s. 28.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2009-2011 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2009-2011 fiscal biennium."

Session Laws 2009-451, s. 28.5, is a severability clause.

Legal Periodicals. - For note, "Municipal Ownership of Cable Television Systems: Madison Cablevision, Inc. v. City of Morganton," see 68 N.C.L. Rev. 1295 (1990).

For comment, " 'Don't Know What a Slide Rule Is For': The Need for a Precise Definition of Public Purpose in North Carolina in the Wake of Kelo v. City of New London," see 28 Campbell L. Rev. 291 (2006).

For article, "Down the Drain: How North Carolina Municipalities Lost Immunity for Storm Drains in Jennings v. Fayetteville," see 88 N.C.L. Rev. 2272 (2010).

CASE NOTES

Airports. - The provisions of Chapter 40A now control cities' eminent domain actions with respect to airports. Smith v. City of Charlotte, 79 N.C. App. 517, 339 S.E.2d 844 (1986).

Cable Television System as "Public Purpose". - The provisions of this article which authorize cities to finance, acquire, construct, own, and operate a cable television system do not violate the "public purpose" clause of N.C. Const., Art. V, § 2(1). Madison Cablevision, Inc. v. City of Morganton, 325 N.C. 634, 386 S.E.2d 200 (1989).

The establishment, financing, construction, operation, and maintenance of a cable television system by a municipality as authorized by this article involved a reasonable connection with the convenience and necessity of the city and benefited the public generally, as opposed to special interests or persons, and thus constituted a "public purpose" within the meaning of N.C. Const., Art. V, § 2(1). Madison Cablevision, Inc. v. City of Morganton, 325 N.C. 634, 386 S.E.2d 200 (1989).

The power to grant or to refuse to grant a franchise is vested solely in the governing body of the city; this power is essentially legislative in nature, and its exercise is discretionary. Madison Cablevision, Inc. v. City of Morganton, 325 N.C. 634, 386 S.E.2d 200 (1989).

Intent That Competition Be Displaced in Cable Television Service. - The powers conferred upon cities by the North Carolina General Statutes with respect to provision and franchising of cable television service reflect the clear contemplation that competition may be displaced with respect to this service. Madison Cablevision, Inc. v. City of Morganton, 325 N.C. 634, 386 S.E.2d 200 (1989).

No Violation of Chapter 75. - Municipal ownership and operation of cable television systems does not violate Chapter 75 which relates to monopolies. Madison Cablevision, Inc. v. City of Morganton, 325 N.C. 634, 386 S.E.2d 200 (1989).

Defendant city was not immune from tort liability in the operation of its sewer system and was answerable to plaintiffs for any negligent act which may have caused them injury and damage. Pulliam v. City of Greensboro, 103 N.C. App. 748, 407 S.E.2d 567, cert. denied, 330 N.C. 197, 412 S.E.2d 59 (1991).

City which owned sewage treatment facility located in county and outside city's boundaries was not required to comply with county's zoning ordinances in upgrading the facility and providing sewage service to newly annexed areas of city with that facility. Davidson County v. City of High Point, 85 N.C. App. 26, 354 S.E.2d 280, modified and aff'd, 321 N.C. 252, 362 S.E.2d 553 (1987).

Since county had no authority to restrict or regulate city's provision of sewer service to its residents, the city could use city-owned sewage treatment plant located outside the city but within the county, which was upgraded pursuant to the county's special use permit, with a condition attached to the permit requiring the county's prior approval of service to county citizens, to meet its statutory mandate to provide sewer service to residents in newly annexed areas without seeking the county's prior approval, even though the facility was located in the county. Davidson County v. City of High Point, 321 N.C. 252, 362 S.E.2d 553 (1987).

Authority to Impose Impact and Tap Fees. - Town of Wrightsville Beach had the authority to impose utility system impact fees and tap fees for water and sewer services under the public enterprise statute and no specific enabling legislation was necessary; section 160A-314(a) makes no distinction between increasing rates, rents, or fees in order to raise the money necessary for capital improvements, and there is no language in the statute limiting a town's authority to impose fees for the use of the services as a method of raising money for capital expansion or requiring that a town only increase rates for the services furnished to fund such improvements; thus, under G.S. 160A-314 the Town could increase fees, rates or both to raise money needed. South Shell Inv. v. Town of Wrightsville Beach, 703 F. Supp. 1192 (E.D.N.C. 1988), aff'd, 900 F.2d 255 (4th Cir. 1990).

Municipal Water System. - 2013 N.C. Sess. Laws 1605, 1618, involuntarily transferring a city's water system to a metropolitan district, violated N.C. Const. art. II, § 24 because the legislation was a local law crafted to only apply to the city without explaining why every other city was exempt or why the legislation's benefits should not be available to every municipal water system's customers. City of Asheville v. State, 369 N.C. 80, 794 S.E.2d 759 (2016).

City's Stormwater Management Program Exceeded Statutory Authority. - Durham city ordinance, designed to satisfy the EPA's National Pollutant Discharge Elimination System's permit requirements required by the Water Quality Act's demands for pollution control of stormwater discharges into public waters, and fees thereunder, exceeded its enabling authority as laid out by this section and G.S. 160A-314(a1). Smith Chapel Baptist Church v. City of Durham, 350 N.C. 805, 517 S.E.2d 874 (1999) (decided prior to 2000 amendment).

Charge of Stormwater Fees Did Not Give Rise to Duty to Maintain Private Pipes. - Business owners failed to present sufficient evidence that a city had a duty to maintain the owners' pipes and drainage system underneath their parking lot or that any actions by the city were the proximate cause of sinkholes that opened in the owners' parking lots. Nor did the city have a duty to maintain the owners' private pipes as a result of stormwater management fees that it charged the public. Asheville Sports Props., LLC v. City of Asheville, 199 N.C. App. 341, 683 S.E.2d 217 (2009).

Authority to Expand a Sewer System. - A condemnation procedure was proper where the condemnation satisfied the public use and public benefit test as all city residents, including the landowners whose property was being condemned, and provided an equal right to connect to the expanded sewer system, which was an essential service. Tucker v. City of Kannapolis, 159 N.C. App. 174, 582 S.E.2d 697 (2003).

City's operation of a fiber optics network is a cable television system authorized to be owned and operated as a public enterprise. BellSouth Telecomms., Inc. v. City of Laurinburg, 168 N.C. App. 75, 606 S.E.2d 721, cert. denied, - N.C. - , 615 S.E.2d 660, cert. denied, 359 N.C. 629, - S.E.2d - (2005).

Applied in Dize Awning & Tent Co. v. City of Winston-Salem, 29 N.C. App. 297, 224 S.E.2d 257 (1976); State ex rel. Utilities Comm'n v. VEPCO, 62 N.C. App. 262, 302 S.E.2d 642 (1983); Morgan v. Town of Hertford, 70 N.C. App. 725, 321 S.E.2d 170 (1984); City of Wilson v. Carolina Bldrs. of Wilson, Inc., 94 N.C. App. 117, 379 S.E.2d 712 (1989); Caswell County v. Town of Yanceyville, 170 N.C. App. 124, 611 S.E.2d 451 (2005); Town of Midland v. Morris, 209 N.C. App. 208, 704 S.E.2d 329, review denied, 365 N.C. 198, 710 S.E.2d 3, 2011 N.C. LEXIS 245, dismissed and review denied, 365 N.C. 198, 710 S.E.2d 1, 2011 N.C. LEXIS 265 (2011), review denied, 365 N.C. 192, 707 S.E.2d 237, 2011 N.C. LEXIS 228 (2011).

Cited in Duke Power Co. v. City of High Point, 22 N.C. App. 91, 205 S.E.2d 774 (1974); Big Bear of N.C. Inc. v. City of High Point, 294 N.C. 262, 240 S.E.2d 422 (1978); Advance Publications, Inc. v. City of Elizabeth City, 53 N.C. App. 504, 281 S.E.2d 69 (1981); Pinehurst Enters., Inc. v. Town of S. Pines, 690 F. Supp. 444 (M.D.N.C. 1988); State ex rel. Utils. Comm'n v. Carolina Util. Customers Ass'n, 323 N.C. 238, 372 S.E.2d 692 (1988); State ex rel. Utils. Comm'n v. Public Staff-North Carolina Utils. Comm'n, 323 N.C. 481, 374 S.E.2d 361 (1988); Ricks v. Town of Selma, 99 N.C. App. 82, 392 S.E.2d 437 (1990); Bogue Shores Homeowners Ass'n v. Town of Atl. Beach, 109 N.C. App. 549, 428 S.E.2d 258 (1993); County of Lenoir v. Moore, 114 N.C. App. 110, 441 S.E.2d 589 (1994), aff'd, 340 N.C. 104, 455 S.E.2d 158 (1995); Gregory v. City of Kings Mt., 117 N.C. App. 99, 450 S.E.2d 349 (1994); Carolina Water Serv., Inc. v. Town of Atlantic Beach, 121 N.C. App. 23, 464 S.E.2d 317 (1995); Stout v. City of Durham, 121 N.C. App. 716, 468 S.E.2d 254 (1996); Grassy Creek Neighborhood Alliance v. City of Winston-Salem, 142 N.C. App. 290, 542 S.E.2d 296 (2001); Bostic Packaging, Inc. v. City of Monroe, 149 N.C. App. 825, 562 S.E.2d 75 (2002), cert. denied, 355 N.C. 747, 565 S.E.2d 192 (2002); County of Wake v. N.C. Dep't of Env't, 155 N.C. App. 225, 573 S.E.2d 572 (2002), cert. dismissed, 357 N.C. 62, 579 S.E.2d 387 (2003); Cedar Greene, LLC v. City of Charlotte, 222 N.C. App. 1, 731 S.E.2d 193 (2012).

Opinions of Attorney General

Ownership and Operation of Private For-Profit Corporation. - The authority of a city to hold property granted by G.S. 160A-11 should not be interpreted to authorize a city to act as a shareholder of a private for-profit corporation organized under the provisions of Chapter 55, and to appoint city officials and employees as corporate directors or officers. See opinion of the Attorney General to H. Michael Boyd, Deputy City Attorney, City of Charlotte, 60 N.C.A.G. 114 (1992).

While there may be authority for a city to purchase all of the stock of a corporation which owns and operates a water and sewer system, there is no authority to operate and continue the existence of a private for-profit corporation which is outside of the traditional functions of a municipality and for which there is no judicial or legislative approval. See opinion of the Attorney General to H. Michael Boyd, Deputy City Attorney, City of Charlotte, 60 N.C.A.G. 114 (1992).

§ 160A-312. Authority to operate public enterprises.

  1. A city shall have authority to acquire, construct, establish, enlarge, improve, maintain, own, operate, and contract for the operation of any or all of the public enterprises as defined in this Article to furnish services to the city and its citizens. Subject to Part 2 of this Article, a city may acquire, construct, establish, enlarge, improve, maintain, own, and operate any public enterprise outside its corporate limits, within reasonable limitations, but in no case shall a city be held liable for damages to those outside the corporate limits for failure to furnish any public enterprise service.
  2. A city shall have full authority to protect and regulate any public enterprise system belonging to or operated by it by adequate and reasonable rules. The rules shall be adopted by ordinance, shall apply to the public enterprise system both within and outside the corporate limits of the city, and may be enforced with the remedies available under any provision of law.
  3. A city may operate that part of a gas system involving the purchase and/or lease of natural gas fields, natural gas reserves and natural gas supplies and the surveying, drilling or any other activities related to the exploration for natural gas, in a partnership or joint venture arrangement with natural gas utilities and private enterprise.

History

(1971, c. 698, s. 1; 1973, c. 426, s. 51; 1975, c. 821, s. 5; 1979, 2nd Sess., c. 1247, s. 29; 1991 (Reg. Sess., 1992), c. 836, s. 1.)

Local Modification. - City of Asheville: 2005-139, ss. 1, 4 and 5 (as to the inapplicability to the operation of public transportation systems or off-street parking facilities).

Legal Periodicals. - For note, "Utilities - Extension of Electric Service: The Municipalities' Power Play," see 63 N.C.L. Rev. 1095 (1985).

For note, "Municipal Ownership of Cable Television Systems: Madison Cablevision, Inc. v. City of Morganton," see 68 N.C.L. Rev. 1295 (1990).

For article, "Down the Drain: How North Carolina Municipalities Lost Immunity for Storm Drains in Jennings v. Fayetteville," see 88 N.C.L. Rev. 2272 (2010).

CASE NOTES

I. IN GENERAL.

Editor's Note. - Many of the cases below were decided under former similar provisions.

Section Contemplates Anticompetitive Activity. - This section grants cities the authority to acquire, construct, maintain, improve, own, operate, and regulate sewage collection systems of all types, and additionally, the North Carolina scheme explicitly contemplates anticompetitive activity because it expressly authorizes cities to require those within its limits to use its sewer facilities. Therefore, the North Carolina legislature contemplated anticompetitive conduct by cities respecting sewage services within city limits. Pinehurst Enters., Inc. v. Town of S. Pines, 690 F. Supp. 444 (M.D.N.C. 1988), aff'd, 887 F.2d 1080 (4th Cir. 1989).

City's Exercise of its Eminent Domain Power. - City lawfully exercised its eminent domain power because, consistent with the mandates of G.S. 160A-4 and G.S. 160A-312, the city could acquire property by condemnation to establish a gas transmission and distribution system, even in the absence of a concrete, immediate plan to furnish gas services to its citizens as the acquisition was for a public use by the city in compliance with G.S. 160A-240.1 and G.S. 40A-3(b). Town of Midland v. Morris, 209 N.C. App. 208, 704 S.E.2d 329, review denied, 365 N.C. 198, 710 S.E.2d 3, 2011 N.C. LEXIS 245, dismissed and review denied, 365 N.C. 198, 710 S.E.2d 1, 2011 N.C. LEXIS 265 (2011), review denied, 365 N.C. 192, 707 S.E.2d 237, 2011 N.C. LEXIS 228 (2011).

The term "reasonable limitations" does not refer solely to the territorial extent of city's venture, but embraces all facts and circumstances which affect the reasonableness of the venture. Quality Water Supply, Inc. v. City of Wilmington, 97 N.C. App. 400, 388 S.E.2d 608, cert. denied, 326 N.C. 598, 393 S.E.2d 881 (1990).

Municipality Promulgates Regulations as Agent of General Assembly. - Since this section gives a municipality the authority to regulate by reasonable rules any public enterprise belonging to the municipality, a municipality in promulgating such regulations acts merely as an agent of the General Assembly. City of Wilson v. Carolina Bldrs. of Wilson, Inc., 94 N.C. App. 117, 379 S.E.2d 712 (1989).

The courts cannot inquire into the motives which prompted a municipality to enact an ordinance which is valid on its face, and they cannot frustrate the operation of such an ordinance by judicial action. City of Wilson v. Carolina Bldrs. of Wilson, Inc., 94 N.C. App. 117, 379 S.E.2d 712 (1989).

No liability for Failure to Furnish Sufficient Water or Light. - A city which owns a municipal light and waterworks system and operates the same in its governmental capacity cannot be held liable in damages for failure to furnish a sufficient supply of either water or light. Harrington v. Town of Greenville, 159 N.C. 632, 75 S.E. 849 (1912); Howland v. City of Asheville, 174 N.C. 749, 94 S.E. 524 (1917); Mabe v. City of Winston-Salem, 190 N.C. 486, 130 S.E. 169 (1925).

Applied in State ex rel. Utilities Comm'n v. VEPCO, 62 N.C. App. 262, 302 S.E.2d 642 (1983); Duke Power Co. v. City of High Point, 69 N.C. App. 378, 317 S.E.2d 699 (1984); Cabarrus County v. City of Charlotte, 71 N.C. App. 192, 321 S.E.2d 476 (1984).

Cited in Wall v. City of Durham, 41 N.C. App. 649, 255 S.E.2d 739 (1979); Advance Publications, Inc. v. City of Elizabeth City, 53 N.C. App. 504, 281 S.E.2d 69 (1981); Lumbee River Elec. Membership Corp. v. City of Fayetteville, 60 N.C. App. 534, 299 S.E.2d 305 (1983); State ex rel. Utils. Comm'n v. Carolina Util. Customers Ass'n, 323 N.C. 238, 372 S.E.2d 692 (1988); State ex rel. Utils. Comm'n v. Public Staff-North Carolina Utils. Comm'n, 323 N.C. 481, 374 S.E.2d 361 (1988); Madison Cablevision, Inc. v. City of Morganton, 325 N.C. 634, 386 S.E.2d 200 (1989); Ricks v. Town of Selma, 99 N.C. App. 82, 392 S.E.2d 437 (1990); Stout v. City of Durham, 121 N.C. App. 716, 468 S.E.2d 254 (1996); City of New Bern v. Carteret-Craven Elec. Mbrshp. Corp., 356 N.C. 123, 567 S.E.2d 131 (2002); Cedar Greene, LLC v. City of Charlotte, 222 N.C. App. 1, 731 S.E.2d 193 (2012).

II. GARBAGE SERVICE.

No Obligation to Provide Garbage Service. - A municipality may provide the service of collecting and removing garbage as an exercise of police powers delegated to it, but is under no compulsion to provide such service. Big Bear of N.C. Inc. v. City of High Point, 294 N.C. 262, 240 S.E.2d 422 (1978).

Rates Charged for Garbage Service. - A municipality which provides garbage collection services may impose a charge reasonably commensurate with the cost of this service upon the householder or building occupant. Under proper classification, the rates charged need not be uniform, and a business may be charged at a rate different from individuals. Big Bear of N.C. Inc. v. City of High Point, 294 N.C. 262, 240 S.E.2d 422 (1978).

Municipality need not provide garbage collection services to one who refuses to pay the charge imposed, and may discontinue this service in the event of nonpayment. Big Bear of N.C. Inc. v. City of High Point, 294 N.C. 262, 240 S.E.2d 422 (1978).

III. WATER AND SEWAGE SERVICE.

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County Zoning Ordinances Inapplicable to Municipal Facility. - City which owned a sewage treatment facility located in a county and outside the city's boundaries was not required to comply with county's zoning ordinances in upgrading the facility and providing sewage service to newly annexed areas of city with that facility. Davidson County v. City of High Point, 85 N.C. App. 26, 354 S.E.2d 280, modified and aff'd, 321 N.C. 252, 362 S.E.2d 553 (1987).

Since county had no authority to restrict or regulate city's provision of sewer service to its residents, the city could use city-owned sewage treatment plant located outside the city but within the county, which was upgraded pursuant to the county's special use permit, with a condition attached to the permit requiring the county's prior approval of service to county citizens, to meet its statutory mandate to provide sewer service to residents in newly annexed areas without seeking the county's prior approval, even though the facility was located in the county. Davidson County v. City of High Point, 321 N.C. 252, 362 S.E.2d 553 (1987).

Municipal Water System. - 2013 N.C. Sess. Laws 1605, 1618, involuntarily transferring a city's water system to a metropolitan district, violated N.C. Const. art. II, § 24 because the legislation was a local law crafted to only apply to the city without explaining why every other city was exempt or why the legislation's benefits should not be available to every municipal water system's customers. City of Asheville v. State, 369 N.C. 80, 794 S.E.2d 759 (2016).

A municipality owes no duty to supply water to a resident for resale to others either within or without its limits. Fulghum v. Town of Selma, 238 N.C. 100, 76 S.E.2d 368 (1953).

Construction of a sewerage system is a governmental function. McCombs v. City of Asheboro, 6 N.C. App. 234, 170 S.E.2d 169 (1969).

Municipality Is Not Liable for Personal Injuries Resulting from Construction of Sewerage System. - A municipal corporation is performing a governmental function when engaged in construction of a sewerage system and is not liable for personal injuries resulting from the alleged negligent acts of its employees in such construction, notwithstanding the municipality charges for sewage and sanitary services which it furnishes its citizens. A municipality will not lose its governmental immunity solely because it is engaged in an activity which makes a profit, the test being whether the act is for the common good of all without the element of special corporate benefit or pecuniary profit. McCombs v. City of Asheboro, 6 N.C. App. 234, 170 S.E.2d 169 (1969).

Municipality's for Injuries to Health Resulting from Sewer Construction and Maintenance. - In the construction and maintenance of a sewer or drainage system, a municipal corporation exercises a part of the governmental powers of the State for the customary local convenience and benefit of all the people, and in the exercise of these discretionary functions the municipality cannot be required to respond in damages to individuals for injury to health, resulting either from omissions to act or the mode of exercising the power conferred on it for public purposes to be used at discretion for the public good. McCombs v. City of Asheboro, 6 N.C. App. 234, 170 S.E.2d 169 (1969).

Maintenance of a free public sewer system by a city is an exercise of its police power for the public benefit, so that a city would not be liable for the death of a citizen from illness caused by the pollution of a stream by the sewer which emptied into it. Metz v. City of Asheville, 150 N.C. 748, 64 S.E. 881, 22 L.R.A. (n.s.) 940 (1909).

Municipality May Be Liable for Damages to Property. - In actions brought to recover damages for injury to property and person by reason of the alleged negligent maintenance of a sewerage system, recovery has been allowed for damage to property on the theory of the creation of a nuisance and the taking of property. McCombs v. City of Asheboro, 6 N.C. App. 234, 170 S.E.2d 169 (1969).

Nuisance for Polluting Stream - A municipal corporation, empowered to construct and maintain a sewerage system, may not exercise its power in such a way as to create a private nuisance without making compensation for the injury inflicted, or being liable in damages therefor or subject to equitable restraint in a proper case, and it is a nuisance to pollute a stream by emptying sewage therein. Moser v. City of Burlington, 162 N.C. 141, 78 S.E. 74 (1913).

Sewer Excavations Not Attractive Nuisance. - Municipalities must build sewers and other conduits necessitating the making of excavations. This creates some obvious danger, but is not categorized as an attractive nuisance. McCombs v. City of Asheboro, 6 N.C. App. 234, 170 S.E.2d 169 (1969).

Town Had No Authority to Impose Impact Fees. - Water and sewer "impact fee" ordinances were invalid because the Public Enterprise Statutes failed to empower the town to impose impact fees for future services; the enabling statutes clearly and unambiguously empowered the town to charge for the contemporaneous use of water and sewer services, not to collect fees for future discretionary spending, and because the legislature alone controlled the extension of municipal authority, the ordinances exceeded the powers delegated to the town. Quality Built Homes, Inc. v. Town of Carthage, 369 N.C. 15, 789 S.E.2d 454 (2016).

Fluoridation of Water Supply. - An ordinance for fluoridation of the city water supply is enacted in the exercise of public policy, and the courts will not interfere therewith in the absence of a showing that the ordinance is so unreasonable, oppressive, and subversive as to amount to an abuse rather than a legitimate exercise of the legislative power. Stroupe v. Eller, 262 N.C. 573, 138 S.E.2d 240 (1964).

Utilities Had Standing to Challenge City's Provision of Water to Subdivision. - Plaintiff utilities which, by virtue of their contiguity to subdivision were in a superior position to any other utility in the area to provide service to the development since no other competitor would be able to provide for subdivision without first obtaining a certificate, and in the event that another company sought a certificate, plaintiffs would be afforded the opportunity to contest the application, had a legitimate expectation of entitlement sufficient to give them a protectible interest so as to challenge city's provision of water to the subdivision. Quality Water Supply, Inc. v. City of Wilmington, 97 N.C. App. 400, 388 S.E.2d 608, cert. denied, 326 N.C. 598, 393 S.E.2d 881 (1990).

City's extension of service to private subdivision beyond its corporate limits was within the reasonable limitations requirement of this section. Quality Water Supply, Inc. v. City of Wilmington, 97 N.C. App. 400, 388 S.E.2d 608, cert. denied, 326 N.C. 598, 393 S.E.2d 881 (1990).

Annexation of Area Served by Private Water or Sewer Lines. - Where there is no contract or municipal ordinance involved, and the territory served by private water or sewer lines is annexed to a municipality, the owner of the lines may not recover the value thereof from the municipality unless it appropriates them and controls them as proprietor. Covington v. City of Rockingham, 266 N.C. 507, 146 S.E.2d 420 (1966).

Maintenance of private water or sewer lines upon annexation as a voluntary act on the part of the city does not amount to a taking of the property. Covington v. City of Rockingham, 266 N.C. 507, 146 S.E.2d 420 (1966).

Town Authorized to Extend Water Lines. - When the water service being provided by plaintiff water service to annexed area was no longer equal to the water service being provided by the town to other areas within the municipal boundaries, the town had the authority, pursuant to this section, to extend its water lines to the annexed area. Carolina Water Serv., Inc. v. Town of Atlantic Beach, 121 N.C. App. 23, 464 S.E.2d 317 (1995).

By offering water users in annexed area with the option, rather than requirement, to connect to the town's water system at reduced fees, the town was simply providing those users with the same opportunity as it had historically given to water users in other areas to which it had extended service. Carolina Water Serv., Inc. v. Town of Atlantic Beach, 121 N.C. App. 23, 464 S.E.2d 317 (1995).

City Authorized to Expand Sewer System. - A condemnation procedure was proper because the intended use of the condemnation satisfied the public use and public benefit test as all city residents, including the landowners whose property was being condemned, and provided an equal right to connect to the expanded sewer system, which was an essential service. Tucker v. City of Kannapolis, 159 N.C. App. 174, 582 S.E.2d 697 (2003).

IV. ELECTRIC SERVICE.

.

The clause "Subject to Part 2 of this Article" refers to those situations where a city extending its electric lines outside its corporate limits necessarily begins construction within its corporate limits. When a city extending service outside its corporate limits constructs lines beginning at some point within its corporate limits, then pursuant to this section and G.S. 160A-332, such lines as are within the city limits may not infringe on the guaranteed corridor rights of a secondary supplier. Duke Power Co. v. City of High Point, 69 N.C. App. 378, 317 S.E.2d 701, cert. denied, 312 N.C. 82, 321 S.E.2d 895 (1984).

Under current legislation, the absolute right of a secondary supplier to serve customers within its 300-foot corridor arises upon the effective date of annexation, statutorily defined as the "determination date." If the legislature determines that the corridor rights of a secondary supplier deserve protection before the effective date of annexation, then it can guarantee such rights by defining the "determination date" when such rights arise as the date an annexation ordinance is adopted rather than the date an annexation plan is effected. Unless and until such time arises, the Supreme Court precedent in relying solely on this section in determining whether a city has legislative authority to extend its lines will be followed. Duke Power Co. v. City of High Point, 69 N.C. App. 378, 317 S.E.2d 701, cert. denied, 312 N.C. 82, 321 S.E.2d 895 (1984).

The first sentence of this section grants a city absolute authority without limitation or restriction to provide electric service for the benefit of the city itself and its citizens. Duke Power Co. v. City of High Point, 69 N.C. App. 378, 317 S.E.2d 701, cert. denied, 312 N.C. 82, 321 S.E.2d 895 (1984).

This section does not affect a city's right to furnish electric service to a newly annexed territory within its corporate limits. Duke Power Co. v. City of High Point, 69 N.C. App. 378, 317 S.E.2d 701, cert. denied, 312 N.C. 82, 321 S.E.2d 895 (1984).

A city's rights under this section are not subject to the provisions of G.S. 160A-331 to 160A-338. Duke Power Co. v. City of High Point, 69 N.C. App. 378, 317 S.E.2d 701, cert. denied, 312 N.C. 82, 321 S.E.2d 895 (1984).

Only Limits on City Are Reasonable Limits. - Since a municipality is not an "electric supplier" as that term is used in section 62-110.2 its public works commission is not prohibited from supplying electric service to a customer outside city's limits, so long as its extension of service is within "reasonable limitations," as provided for in this section. South River Elec. Membership Corp. v. City of Fayetteville, 113 N.C. App. 401, 438 S.E.2d 464, cert. denied, 336 N.C. 74, 445 S.E.2d 38 (1994).

V. EXTENSION OF SERVICES OUTSIDE CORPORATE LIMITS.

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Right to Operate Utilities Beyond Corporate Boundaries Within Reasonable Limitations. - A municipality is authorized to construct and operate utilities for the benefit of the public beyond its corporate boundaries within reasonable limitations. If the authority was not thus limited this section would contravene fundamental law. Public Serv. Co. v. City of Shelby, 252 N.C. 816, 115 S.E.2d 12 (1960).

The term "reasonable limitations" does not refer solely to the territorial extent of the venture, but embraces all facts and circumstances which affect the reasonableness of the venture. Domestic Elec. Serv., Inc. v. City of Rocky Mount, 285 N.C. 135, 203 S.E.2d 838 (1974); Lumbee River Elec. Membership Corp. v. City of Fayetteville, 309 N.C. 726, 309 S.E.2d 209 (1983); Morgan v. Town of Hertford, 70 N.C. App. 725, 321 S.E.2d 170 (1984).

Right to Distribute Electricity Beyond Corporate Limits. - A municipality has the power to purchase, generate, or distribute electricity for its own use and the use of its inhabitants, and is given legislative authority to extend its lines beyond its corporate limits for the purpose of selling electricity to nonresidents; therefore, a complaint in an action against a municipality alleging injury from negligent maintenance of power lines outside the corporate limits was not demurrable on the ground that the alleged negligence of its officers and employees was ultra vires. Kennerly v. Town of Dallas, 215 N.C. 532, 2 S.E.2d 538 (1939).

A municipal corporation engaged in the production and distribution of electric power is authorized to extend this service to consumers outside its corporate limits, and this would confer authority on a city to construct and operate transmission lines for the distribution of electric current for the benefit of the public beyond its corporate boundaries within reasonable limitations. But if from lawful competition the town's business is curtailed, it would seem that no actionable wrong would result, nor would the town be entitled to injunctive relief therefrom. Town of Grimesland v. City of Washington, 234 N.C. 117, 66 S.E.2d 794 (1951).

Section Provides Sole Authority Therefor. - This section provides the sole authority for and restriction upon municipalities furnishing electric service outside corporate limits. State ex rel. Utilities Comm'n v. VEPCO, 310 N.C. 302, 311 S.E.2d 586 (1984); Duke Power Co. v. City of High Point, 69 N.C. App. 378, 317 S.E.2d 701, cert. denied, 312 N.C. 82, 321 S.E.2d 895 (1984).

This section vests municipalities with a right to serve potential new customers outside its corporate limits so long as this extension of service is within reasonable limitations. State ex rel. Utilities Comm'n v. VEPCO, 310 N.C. 302, 311 S.E.2d 586 (1984).

Operation of Electric System Outside Municipality. - The 1965 Electric Act, appearing in G.S. 160A-331 through 160A-338 and G.S. 62-110.2, does not empower or authorize municipalities to operate electric systems outside corporate limits, nor does it restrict such service. Insofar as the General Statutes are concerned, the sole authority for, and the only restriction upon municipalities furnishing electric service outside corporate limits is found in this section. Lumbee River Elec. Membership Corp. v. City of Fayetteville, 309 N.C. 726, 309 S.E.2d 209 (1983).

For analysis of the dichotomy between a city's rights to extend electric service outside city limits under this section and its rights to extend such service within city limits under G.S. 160A-331 to 160A-338, see Duke Power Co. v. City of High Point, 69 N.C. App. 378, 317 S.E.2d 701, cert. denied, 312 N.C. 82, 321 S.E.2d 895 (1984).

For case holding that extension of city's electric system across city limits exceeded "reasonable limitations," see Domestic Elec. Serv., Inc. v. City of Rocky Mount, 285 N.C. 135, 203 S.E.2d 838 (1974).

Effect of Utilities Commission's Assignment of Area to Electric Suppliers. - The Utilities Commission's assignment of an area to an electric supplier does not automatically preclude a city from extending its service lines into the area. Domestic Elec. Serv., Inc. v. City of Rocky Mount, 285 N.C. 135, 203 S.E.2d 838 (1974).

All municipalities have been given the right to extend water and sewer facilities beyond the corporate limits of the municipality. Upchurch v. City of Raleigh, 252 N.C. 676, 114 S.E.2d 772 (1960).

Municipalities have legislative permission to extend their sewer and water lines beyond corporate boundaries. Such extensions may be made either because necessary to the effective operation of the improvement within the city, or to provide services for a profit beyond the corporate limits. Eakley v. City of Raleigh, 252 N.C. 683, 114 S.E.2d 777 (1960).

Extension of Water and Sewer Facilities for Profit Requires Vote. - A municipality has the power to extend funds for the construction and operation of water and sewer facilities without a vote when such facilities are for the benefit of the citizens of the municipality, but extension of such facilities outside its corporate limits for the purpose of profit is a proprietary function requiring a vote of its citizens. Eakley v. City of Raleigh, 252 N.C. 683, 114 S.E.2d 777 (1960).

Right to Impose Conditions on Furnishing Water and Sewer Service Outside Corporate Limits. - Since it is optional with the city as to whether or not it will furnish water to residents outside its corporate limits and permit such residents to connect their sewer facilities with the sewerage system of the city, or with any other sewerage system which connects with the city system, it may fix the terms upon which the service may be rendered and its facilities used. George v. City of Asheville, 80 F.2d 50, 103 A.L.R. 568 (4th Cir. 1935); Williamson v. City of High Point, 213 N.C. 96, 195 S.E. 90 (1938); Kennerly v. Town of Dallas, 215 N.C. 532, 2 S.E.2d 538 (1939); Atlantic Constr. Co. v. City of Raleigh, 230 N.C. 365, 53 S.E.2d 165 (1949).

A municipality which operates its own waterworks is under no duty in the first instance to furnish water to persons outside its limits. It has the discretionary power, however, to engage in this undertaking. When a municipality exercises this discretionary power, it does not assume the obligations of a public service corporation toward nonresident consumers. It retains the authority to specify the terms upon which nonresidents may obtain its water. Fulghum v. Town of Selma, 238 N.C. 100, 76 S.E.2d 368 (1953).

Duty of Equal Service in Furnishing Water Owed Only to Consumers within Corporate Limits. - When a municipality engages in supplying water to its inhabitants, it owes the duty of equal service in furnishing water only to consumers within its corporate limits. Fulghum v. Town of Selma, 238 N.C. 100, 76 S.E.2d 368 (1953).

The factors used to ascertain whether an extension of service is reasonable are the electric providers' current levels of service in the area in question, particularly in the immediate vicinity of the potential customer, and the present readiness, willingness, and ability of each to serve the potential customer. South River Elec. Membership Corp. v. City of Fayetteville, 113 N.C. App. 401, 438 S.E.2d 464, cert. denied, 336 N.C. 74, 445 S.E.2d 38 (1994).

Discontinuance of Service. - Town had the legal right to discontinue sewerage service to plaintiff's facility, which was located outside the corporate limits of the town, provided that the town was not unfairly discriminating between plaintiff and other non-residents similarly situated who received sewerage service. Further, the town had the legal right to condition continued service to plaintiff's facility on the voluntary annexation of the facility into the town's corporate limits, again provided that the town was not unfairly discriminating between plaintiff and other non-residents similarly situated who received the town's sewerage service. United States Cold Storage, Inc. v. Town of Warsaw, 246 N.C. App. 781, 784 S.E.2d 575 (2016).

City's operation of a fiber optics network is a cable television system authorized to be owned and operated as a public enterprise. BellSouth Telecomms., Inc. v. City of Laurinburg, 168 N.C. App. 75, 606 S.E.2d 721, cert. denied, - N.C. - , 615 S.E.2d 660, cert. denied, 359 N.C. 629, - S.E.2d - (2005).

Approval for Condemnation Not Required. - Summary judgment was properly entered in a declaratory action regarding the applicability of G.S. 153A-15(b) because a condemnation action by a city in order to facilitate the construction of a water supply and distribution facility did not require any approval since the city and the land were located in the same county; moreover, the evidence showed that the real and substantial benefits of the condemnation accrued to the city in question, and not other parties in the case that were located in different counties. Caswell County v. Town of Yanceyville, 170 N.C. App. 124, 611 S.E.2d 451 (2005).

Opinions of Attorney General

Ownership and Operation of Private For-Profit Corporation. - The authority of a city to hold property granted by G.S. 160A-11 should not be interpreted to authorize a city to act as a shareholder of a private for-profit corporation organized under the provisions of Chapter 55, and to appoint city officials and employees as corporate directors or officers. See opinion of the Attorney General to H. Michael Boyd, Deputy City Attorney, City of Charlotte, 60 N.C.A.G. 114 (1992).


§ 160A-313. Financing public enterprise.

Subject to the restrictions, limitations, procedures, and regulations otherwise provided by law, a city shall have full authority to finance the cost of any public enterprise by levying taxes, borrowing money, and appropriating any other revenues therefor, and by accepting and administering gifts and grants from any source on behalf thereof.

History

(1971, c. 698, s. 1.)

CASE NOTES

Town had authority to impose impact and tap fees under this section and G.S. 160A-314(a). South Shell Inv. v. Town of Wrightsville Beach, 703 F. Supp. 1192 (E.D.N.C. 1988), aff'd, 900 F.2d 255 (4th Cir. 1990).

Town of Wrightsville Beach had the authority to impose utility system impact fees and tap fees for water and sewer services under the public enterprise statute and no specific enabling legislation was necessary; section 160A-314(a) makes no distinction between increasing rates, rents, or fees in order to raise the money necessary for capital improvements, and there is no language in the statute limiting a town's authority to impose fees for the use of the services as a method of raising money for capital expansion or requiring that a town only increase rates for the services furnished to fund such improvements; thus, under G.S. 160A-313 the town could increase fees, rates or both to raise money needed. South Shell Inv. v. Town of Wrightsville Beach, 703 F. Supp. 1192 (E.D.N.C. 1988), aff'd, 900 F.2d 255 (4th Cir. 1990).

Town Had No Authority to Impose Impact Fees. - Water and sewer "impact fee" ordinances were invalid because the Public Enterprise Statutes failed to empower the town to impose impact fees for future services; the enabling statutes clearly and unambiguously empowered the town to charge for the contemporaneous use of water and sewer services, not to collect fees for future discretionary spending, and because the legislature alone controlled the extension of municipal authority, the ordinances exceeded the powers delegated to the town. Quality Built Homes, Inc. v. Town of Carthage, 369 N.C. 15, 789 S.E.2d 454 (2016).

Cited in Madison Cablevision, Inc. v. City of Morganton, 325 N.C. 634, 386 S.E.2d 200 (1989).


§ 160A-314. Authority to fix and enforce rates.

  1. A city may establish and revise from time to time schedules of rents, rates, fees, charges, and penalties for the use of or the services furnished or to be furnished by any public enterprise. Schedules of rents, rates, fees, charges, and penalties may vary according to classes of service, and different schedules may be adopted for services provided outside the corporate limits of the city.
  2. (1)  Before it establishes or revises a schedule of rates, fees, charges, or penalties for stormwater management programs and structural and natural stormwater and drainage systems under this section, the city council shall hold a public hearing on the matter. A notice of the hearing shall be given at least once in a newspaper having general circulation in the area, not less than seven days before the public hearing. The hearing may be held concurrently with the public hearing on the proposed budget ordinance.
  3. A fee for the use of a disposal facility provided by the city may vary based on the amount, characteristics, and form of recyclable materials present in solid waste brought to the facility for disposal. This section does not prohibit a city from providing aid to low-income persons to pay all or part of the cost of solid waste management services for those persons. A city may, upon a finding that a fund balance in a utility or public service enterprise fund used for operation of a landfill exceeds the requirements for funding the operation of that fund, including closure and post-closure expenditures, transfer excess funds accruing due to imposition of a surcharge imposed on another local government located within the State for use of the disposal facility, as authorized by G.S. 160A-314.1, to be used to support the other services supported by the city's general fund.
  4. Revisions in the rates, fees, or charges for electric service for cities that are members of the North Carolina Eastern Municipal Power Agency must comply with the public hearing provisions applicable to those cities under G.S. 159B-17.
  5. A city shall have power to collect delinquent accounts by any remedy provided by law for collecting and enforcing private debts, and may specify by ordinance the order in which partial payments are to be applied among the various enterprise services covered by a bill for the services. A city may also discontinue service to any customer whose account remains delinquent for more than 10 days. When service is discontinued for delinquency, it shall be unlawful for any person other than a duly authorized agent or employee of the city to do any act that results in a resumption of services. If a delinquent customer is not the owner of the premises to which the services are delivered, the payment of the delinquent account may not be required before providing services at the request of a new and different tenant or occupant of the premises, but this restriction shall not apply when the premises are occupied by two or more tenants whose services are measured by the same meter.
  6. A city shall not do any of the following in its debt collection practices:
    1. Suspend or disconnect service to a customer because of a past-due and unpaid balance for service incurred by another person who resides with the customer after service has been provided to the customer's household, unless one or more of the following apply:
      1. The customer and the person were members of the same household at a different location when the unpaid balance for service was incurred.
      2. The person was a member of the customer's current household when the service was established, and the person had an unpaid balance for service at that time.
      3. The person is or becomes responsible for the bill for the service to the customer.
    2. Require that in order to continue service, a customer must agree to be liable for the delinquent account of any other person who will reside in the customer's household after the customer receives the service, unless one or more of the following apply:
      1. The customer and the person were members of the same household at a different location when the unpaid balance for service was incurred.
      2. The person was a member of the customer's current household when the service was established, and the person had an unpaid balance for service at that time.
  7. Notwithstanding the provisions of subsection (b1) of this section, if a customer misrepresents his or her identity in a written or verbal agreement for service or receives service using another person's identity, the city shall have the power to collect a delinquent account using any remedy provided by subsection (b) of this section from that customer.
  8. , (b4)  Reserved.
  9. (Applicable to certain localities) Except as provided in subsections (a1) and (d) of this section and G.S. 160A-314.1, rents, rates, fees, charges, and penalties for enterprisory services shall be legal obligations of the person contracting for them, and shall in no case be a lien upon the property or premises served, provided that no contract shall be necessary in the case of structural and natural stormwater and drainage systems.
  10. (Applicable to other localities) Except as provided in subsection (d) of this section and G.S. 160A-314.1, rents, rates, fees, charges, and penalties for enterprisory services shall be legal obligations of the person contracting for them, and shall in no case be a lien upon the property or premises served, provided that no contract shall be necessary in the case of structural and natural stormwater and drainage systems.
  11. Notwithstanding subsection (b1) of this section, rents, rates, fees, charges, and penalties for enterprisory services shall be legal obligations of the owner of the premises served when:
    1. The property or premises is leased or rented to more than one tenant and services rendered to more than one tenant are measured by the same meter.
    2. Charges made for use of a sewage system are billed separately from charges made for the use of a water distribution system.
  12. Nothing in this section shall repeal any portion of any city charter inconsistent herewith.
    1. A city may adopt an ordinance providing that a fee charged by the city for sewer services and remaining unpaid for a period of 90 days may be collected in any manner by which delinquent personal or real property taxes can be collected. If the ordinance states that delinquent fees may be collected in the same manner as delinquent real property taxes, the delinquent fees are a lien on the real property owned by the person contracting with the city for the service, and the ordinance shall provide for an appeals process. If a lien is placed on real property, the lien shall be valid from the time of filing in the office of the clerk of superior court of the county in which the service was provided and shall include a statement containing the name and address of the person against whom the lien is claimed, the name of the city claiming the lien, the specific service that was provided, the amount of the unpaid charge for that service, and the date and place of furnishing that service. A lien on real property is not effective against an interest in real property conveyed after the fees become delinquent if the interest is recorded in the office of the register of deeds prior to the filing of the lien for delinquent water or sewer services. No lien under this act shall be valid unless filed in accordance with this section after 90 days of the date of the failure to pay for the service or availability fees and within 180 days of the date of the failure to pay for the service or fees. The lien may be discharged as provided in G.S. 44-48. (f) (1)  A city may adopt an ordinance providing that a fee charged by the city for sewer services and remaining unpaid for a period of 90 days may be collected in any manner by which delinquent personal or real property taxes can be collected. If the ordinance states that delinquent fees may be collected in the same manner as delinquent real property taxes, the delinquent fees are a lien on the real property owned by the person contracting with the city for the service, and the ordinance shall provide for an appeals process. If a lien is placed on real property, the lien shall be valid from the time of filing in the office of the clerk of superior court of the county in which the service was provided and shall include a statement containing the name and address of the person against whom the lien is claimed, the name of the city claiming the lien, the specific service that was provided, the amount of the unpaid charge for that service, and the date and place of furnishing that service. A lien on real property is not effective against an interest in real property conveyed after the fees become delinquent if the interest is recorded in the office of the register of deeds prior to the filing of the lien for delinquent water or sewer services. No lien under this act shall be valid unless filed in accordance with this section after 90 days of the date of the failure to pay for the service or availability fees and within 180 days of the date of the failure to pay for the service or fees. The lien may be discharged as provided in G.S. 44-48.
    2. This section [subsection] applies only to the City of Locust and to the Towns of Bolton, Fairmont, La Grange, New London, Pembroke, Proctorville, Rowland, St. Pauls, and Stanfield.
  13. A city may require system development fees only in accordance with Article 8 of Chapter 162A of the General Statutes.

(2) The fees established under this subsection must be made applicable throughout the area of the city. Schedules of rates, fees, charges, and penalties for providing stormwater management programs and structural and natural stormwater and drainage system service may vary according to whether the property served is residential, commercial, or industrial property, the property's use, the size of the property, the area of impervious surfaces on the property, the quantity and quality of the runoff from the property, the characteristics of the watershed into which stormwater from the property drains, and other factors that affect the stormwater drainage system. Rates, fees, and charges imposed under this subsection may not exceed the city's cost of providing a stormwater management program and a structural and natural stormwater and drainage system. The city's cost of providing a stormwater management program and a structural and natural stormwater and drainage system includes any costs necessary to assure that all aspects of stormwater quality and quantity are managed in accordance with federal and State laws, regulations, and rules.

(3) No stormwater utility fee may be levied under this subsection whenever two or more units of local government operate separate stormwater management programs or separate structural and natural stormwater and drainage system services in the same area within a county. However, two or more units of local government may allocate among themselves the functions, duties, powers, and responsibilities for jointly operating a stormwater management program and structural and natural stormwater and drainage system service in the same area within a county, provided that only one unit may levy a fee for the service within the joint service area. For purposes of this subsection, a unit of local government shall include a regional authority providing stormwater management programs and structural and natural stormwater and drainage system services.

(4) A city may adopt an ordinance providing that any fee imposed under this subsection may be billed with property taxes, may be payable in the same manner as property taxes, and, in the case of nonpayment, may be collected in any manner by which delinquent personal or real property taxes can be collected. If an ordinance states that delinquent fees can be collected in the same manner as delinquent real property taxes, the fees are a lien on the real property described on the bill that includes the fee.

This subdivision applies only to the Cities of Creedmoor, Durham and Winston-Salem, the Towns of Bolton, Butner, Fairmont, Garner, Kernersville, Knightdale, La Grange, Morrisville, Pembroke, Proctorville, Rowland, St. Pauls, Stem, Wendell, and Zebulon, and the Village of Clemmons.

(5) A city shall not impose a stormwater utility fee on a runway or taxiway located on military property.

(6) For all airports other than those covered by the exemption in subdivision (5) of this subsection, a city shall list separately the amount of a stormwater utility fee levied on airport runways and taxiways from the amount levied on the remainder of the airport property. An airport shall be exempt from paying a stormwater utility fee levied on its runways and taxiways. To qualify for an exemption under this subdivision, an airport shall use the amount of savings realized from this exemption for attracting business to the airport and shall provide certification to the city that the savings realized shall be used for this purpose. Except as otherwise prohibited under federal law, and upon request, an airport shall provide the levying city with evidence that the full amount of savings realized from the exemption authorized under this subdivision has been used or encumbered for the purpose set forth in this subdivision. Any amount of savings realized from the exemption authorized under this subdivision that is not used or encumbered for the purpose set forth in this subdivision shall be remitted to the city to be used in accordance with applicable law governing the use of stormwater utility fee proceeds. Savings realized from the exemption authorized under this subdivision shall be in addition to, and not in lieu of, any local funding provided by the city to the airport.

This subsection applies only to the Cities of Creedmoor, Durham and Winston-Salem, the Towns of Butner, Garner, Kernersville, Knightdale, Morrisville, Stem, Wendell, and Zebulon, and the Village of Clemmons.

The city shall adopt an appeals process providing notice and an opportunity to be heard in protest of the imposition of such liens. The county tax office, once notified of the city's lien, shall include the lien amount on any tax bills printed subsequent to the notification. The county tax office shall add or remove liens from the tax bill at the request of the city (such as in the case of an appeal where the city decides to cancel the lien).

History

(1971, c. 698, s. 1; 1991, c. 591, s. 1; c. 652, s. 4; 1991 (Reg. Sess., 1992), c. 1007, s. 46; 1995 (Reg. Sess., 1996), c. 594, s. 28; 2000-70, s. 4; 2005-441, ss. 3(a), (b), 4; 2009-302, s. 3(a), (b); 2010-59, ss. 1, 2; 2011-109, s. 1; 2012-55, s. 2; 2012-167, s. 2; 2013-413, s. 59.4(d); 2017-44, ss. 1, 2(a)-(c); 2017-132, s. 2; 2017-138, s. 4(a).)

Section set out twice. - The section above is effective January 1, 2018. For this section effective until January 1, 2018, see the preceding section, also numbered G.S. 160A-314.

Local Modification. - City of Charlotte: 1998-66; city of Dunn: 1991, c. 502; city of Durham: 1991 (Reg. Sess., 1992), c. 925; 2011-109, s. 1 (as to subsections (a1) and (c), applicable to stream-clearing activities commenced on or after September 27, 2005); city of Reidsville: 1983, c. 125; 1989 (Reg. Sess., 1990), c. 957, s. 1; city of Winston-Salem: 2011-109, s. 1 (as to subsections (a1) and (c), applicable to stream-clearing activities commenced on or after September 27, 2005); town of Angier: 2008-63, s. 3; town of Erwin: 1991, c. 502; town of Garner: 2011-109, s. 1 (as to subsections (a1) and (c), applicable to stream-clearing activities commenced on or after September 27, 2005); town of Kernersville: 2005-441, s. 3, as amended by 2011-109, s. 1 (as to subsections (a1) and (c), applicable to stream-clearing activities commenced on or after September 27, 2005); town of Knightdale: 2011-109, s. 1 (as to subsections (a1) and (c), applicable to stream-clearing activities commenced on or after September 27, 2005); town of Lake Lure: 1987, c. 194, s. 1; town of Lillington: 1991, c. 502; town of Morrisville: 2011-109, s. 1 (as to subsections (a1) and (c), applicable to stream-clearing activities commenced on or after September 27, 2005); town of Wendell: 2011-109, s. 1 (as to subsections (a1) and (c), applicable to stream-clearing activities commenced on or after September 27, 2005); town of Zebulon: 2011-109, s. 1 (as to subsections (a1) and (c), applicable to stream-clearing activities commenced on or after September 27, 2005); village of Clemmons: 2005-441, s. 3, as amended by 2011-109, s. 1 (as to subsections (a1) and (c), applicable to stream-clearing activities commenced on or after September 27, 2005).

Editor's Note. - Session Laws 2005-441, s. 3(a), effective September 27, 2005, and applicable to stream-clearing activities commenced on or after that date, added a new subsubdivision (a1)(4), which, pursuant to s. 4 of that act, was applicable only to the Town of Kernersville and the Village of Clemmons. Session Laws 2005-441, s. 3(b), effective September 27, 2005, and applicable to stream-clearing activities commenced on or after that date, amended subsection (c), which s. 4 of the act also made applicable only to the Town of Kernersville and the Village of Clemmons. Section 4 of the act was subsequently amended by Session Laws 2011-109, s. 1, and by Session Laws 2012-55, s. 2, making the amendments by Session Laws 2005-441, s. 3(a) and (b), applicable to more than 10 localities. At the direction of the Revisor of Statutes, effective June 21, 2012, subdivision (a1)(4), as added by Session Laws 2005-441, s. 3(a), and the second sentence of Session Laws 2005-441, s. 4, as amended by Session Laws 2011-109, s. 1, and by Session Laws 2012-55, s. 2, have been codified as a new subdivision (a1)(4). Also at the direction of the Revisor of Statutes, effective June 21, 2012, subsection (c), as amended by Session Laws 2005-441, s. 3(b), and the second sentence of Session Laws 2005-441, s. 4, as amended by Session Laws 2011-109, s. 1, and by Session Laws 2012-55, s. 2, have been codified as a new subdivision (b5).

Session Laws 2017-44, s. 2(a), (b), codified Session Laws 2010-59, ss. 1, 2 as subsection (f) of this section, effective June 22, 2017. The bracketed "[subsection]" in subdivision (f)(2) was added at the direction of the Revisor of Statutes.

Session Laws 2017-132, s. 3, made subdivisions (a1)(5) and (6), as added by Session Laws 2017-132, s. 2, effective January 1, 2018, and applicable to fees levied on or after that date.

Session Laws 2017-138, s. 4, enacted subsection (e). It has been redesignated as subsection (g) at the direction of the Revisor of Statutes.

Session Laws 2017-138, s. 11, made the amendment of subsection (a) and the addition of subsection (g) by Session Laws 2017-138, s. 4(a), effective October 1, 2017, and applicable to system development fees imposed on or after that date. Session Laws 2017-138, s. 11, further provides: "Nothing in this act provides retroactive authority for any system development fee, or any similar fee for water or sewer services to be furnished, collected by a local governmental unit prior to October 1, 2017."

Effect of Amendments. - Session Laws 2009-302, s. 3(a) and (b), effective July 17, 2009, added subsections (b1) and (b2); and in subsection (d), added "Notwithstanding subsection (b1) of this section" at the beginning of the introductory language.

Session Laws 2012-167, s. 2, effective October 1, 2012, added subsection (a3).

Session Laws 2013-413, s. 59.4(d), effective August 1, 2013, added the third sentence in subsection (a2).

Session Laws 2017-44, s. 1, effective June 22, 2017, added "Bolton," "Fairmont," "LaGrange," and "Pembroke, Proctorville, Rowland, St. Pauls" in subdivision (a1)(4).

Session Laws 2017-44, s. 2(c), effective June 22, 2017, inserted Bolton, Fairmont, La Grange, Pembroke, Proctorville, Rowland, and St. Pauls to the list of towns in Subdivision (f)(2).

Session Laws 2017-132, s. 2, added subdivisions (a1)(5) and (6). For effective date and applicability, see editor's note.

Session Laws 2017-138, s. 4, inserted "or to be furnished" in the first sentence of subsection (a); and added subsection (g). For effective date and applicability, see editor's note.

Legal Periodicals. - For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).

For survey of 1981 administrative law, see 60 N.C.L. Rev. 1165 (1982).

For survey of 1982 law on taxation, see 61 N.C.L. Rev. 1217 (1983).

For article, "Down the Drain: How North Carolina Municipalities Lost Immunity for Storm Drains in Jennings v. Fayetteville," see 88 N.C.L. Rev. 2272 (2010).

For article, "North Carolina's Annexation Wars: Whys, Wherefores, and What Next," see 91 N.C.L. Rev. 165 (2012).

For article, "Searching Everywhere for a Section 24(1)(A) Standard: City of Asheville, Town of Boone, and the Unclear Future of Local-State Relations in North Carolina," see 96 N.C.L. Rev. 1882 (2018).

CASE NOTES

Editor's Note. - Some of the cases cited below were decided under former similar provisions.

A municipality is authorized to establish and revise rates for water and sewer services. Mulberry-Fairplains Water Ass'n v. Town of N. Wilkesboro, 105 N.C. App. 258, 412 S.E.2d 910, cert. denied, 332 N.C. 148, 419 S.E.2d 573 (1992).

A municipality may establish a charge for sewerage service and require all its water customers to pay for such service whether such customers live within or without the corporate limits of such municipality. Covington v. City of Rockingham, 266 N.C. 507, 146 S.E.2d 420 (1966).

Sewerage Charge Is Not in the Nature of a Tax. - A properly adopted ordinance of a municipality establishing a sewerage service charge is not in the nature of a tax for the use of the users' sewer facilities, but a charge for the use of the sewer facilities of the municipality in the disposal of polluted water and sewage which drains into the disposal system of the municipality. Covington v. City of Rockingham, 266 N.C. 507, 146 S.E.2d 420 (1966).

Setting of Rates for Water and Sewerage as Proprietary Function. - Setting of rates and charges for water and sewer services furnished by a municipality to its customers is a proprietary function, subject only to limitations imposed upon such action by statute or contractual obligation assumed in such actions. Town of Spring Hope v. Bissette, 53 N.C. App. 210, 280 S.E.2d 490 (1981), aff'd, 305 N.C. 248, 287 S.E.2d 851 (1982).

Town Had No Authority to Impose Impact Fees. - Water and sewer "impact fee" ordinances were invalid because the Public Enterprise Statutes failed to empower the town to impose impact fees for future services; the enabling statutes clearly and unambiguously empowered the town to charge for the contemporaneous use of water and sewer services, not to collect fees for future discretionary spending, and because the legislature alone controlled the extension of municipal authority, the ordinances exceeded the powers delegated to the town. Quality Built Homes, Inc. v. Town of Carthage, 369 N.C. 15, 789 S.E.2d 454 (2016).

Reclassification of Services. - Trial court erred in finding that a reclassification and concurrent change in billing methodology for water and sewer services at a retirement facility were arbitrary, capricious, unreasonable, and unreasonably discriminatory because the statutory three-year statute of limitations barred the facility owner's complaint where, while the owner submitted a number of cases on the continuing wrong doctrine and the trial court appeared to have applied it, there was not a continuing violation, occasioned by continual unlawful acts, but rather only continual ill effects from an original violation, the reclassification of the water meters; the monthly bills constituted the continual ill effects from that reclassification. ACTS Retirement-Life Cmtys., Inc. v. Town of Columbus, 248 N.C. App. 456, 789 S.E.2d 527 (2016), appeal dismissed, 370 N.C. 694, 810 S.E.2d 681, 2018 N.C. LEXIS 208 (2018).

Since this section expressly authorizes a city to base its stormwater utility (SWU) fees on the impervious area of a piece of property, the rate scheme enacted by the City of Durham pursuant to its SWU ordinance was rationally related to the amount of runoff from each lot and was not an arbitrary exercise of the city's statutory authority. Smith Chapel Baptist Church v. City of Durham, 350 N.C. 805, 517 S.E.2d 874 (1999) (decided prior to 2000 amendment).

City's Stormwater Management Program Exceeded Statutory Authority. - Durham city ordinance, designed to satisfy the EPA's National Pollutant Discharge Elimination System's permit requirements required by the Water Quality Act's demands for pollution control of stormwater discharges into public waters, and fees thereunder, exceeded its enabling authority as laid out by G.S. 160A-311 and subsection (a1) of this section. Smith Chapel Baptist Church v. City of Durham, 350 N.C. 805, 517 S.E.2d 874 (1999) (decided prior to 2000 amendment).

Charge of Stormwater Fees Did Not Give Rise to Duty to Maintain Private Pipes. - Business owners failed to present sufficient evidence that a city had a duty to maintain the owners' pipes and drainage system underneath their parking lot or that any actions by the city were the proximate cause of sinkholes that opened in the owners' parking lots. Nor did the city have a duty to maintain the owners' private pipes as a result of stormwater management fees that it charged the public. Asheville Sports Props., LLC v. City of Asheville, 199 N.C. App. 341, 683 S.E.2d 217 (2009).

Landowners Entitled to Refund Where Ordinance and Fees Were Illegal. - Where city's stormwater utility ordinance and fees charged thereunder were invalid as a matter of law, plaintiffs were entitled to a full refund of the illegally collected fees, plus interest on those fees to the date of judgment. Smith Chapel Baptist Church v. City of Durham, 350 N.C. 805, 517 S.E.2d 874 (1999) (decided prior to 2000 amendment).

Not Invalidated by Courts Absent Arbitrary or Discriminatory Action. - Setting of rates and charges for water and sewer services furnished by a municipality is a matter for the judgment and discretion of municipal authorities, not to be invalidated by the courts absent some showing of arbitrary or discriminatory action. Town of Spring Hope v. Bissette, 53 N.C. App. 210, 280 S.E.2d 490 (1981), aff'd, 305 N.C. 248, 287 S.E.2d 851 (1982).

Test of Arbitrariness. - Test is not whether any particular customer has directly benefited from the use of a discrete or particular component of the utility plant, but whether the municipal authority has acted arbitrarily in establishing its rates. Town of Spring Hope v. Bissette, 53 N.C. App. 210, 280 S.E.2d 490 (1981), aff'd, 305 N.C. 248, 287 S.E.2d 851 (1982).

Inclusion in Rates of Capital Costs of Improvement. - Great weight of authority is to the effect that in the setting of rates and charges for water and sewer services a municipal body may include not only operating expenses and depreciation, but also capital costs associated with actual or anticipated growth or improvement of the facilities required for the furnishing of such services. Town of Spring Hope v. Bissette, 53 N.C. App. 210, 280 S.E.2d 490 (1981), aff'd, 305 N.C. 248, 287 S.E.2d 851 (1982).

Propriety of Rates Calculated to Recoup Costs of New Facilities Not Yet in Use. - Where the costs of necessary new facilities constructed to serve a municipality's customers are known or are predictable, rates calculated to begin recoupment of those costs are not unlawful or illegal merely because the new facilities have not yet been put into actual use. Town of Spring Hope v. Bissette, 53 N.C. App. 210, 280 S.E.2d 490 (1981), aff'd, 305 N.C. 248, 287 S.E.2d 851 (1982).

Right to Classify Consumers Under Reasonable Classifications. - The statutory authority of a city to fix and enforce rates for its services and to classify its customers is not a license to discriminate among customers of essentially the same character and services. Rather, this section must be read as a codification of the general rule that a city has the right to classify consumers under reasonable classifications based upon such factors as the cost of service or any other matter which presents a substantial difference as a ground of distinction. Town of Taylorsville v. Modern Cleaners, 34 N.C. App. 146, 237 S.E.2d 484 (1977).

No License to Discriminate. - The statutory authority of a city to fix and enforce rates for public services furnished by it and to classify its customers is not a license to discriminate among customers of essentially the same character and services. Wall v. City of Durham, 41 N.C. App. 649, 255 S.E.2d 739, cert. denied, 298 N.C. 304, 259 S.E.2d 918 (1979).

A public utility, whether publicly or privately owned, may not discriminate in the distribution of services or the establishment of rates. There must be substantial differences in service or conditions to justify differences in rates. There must be no unreasonable discrimination between those receiving the same kind and degree of service. Cabarrus County v. City of Charlotte, 71 N.C. App. 192, 321 S.E.2d 476 (1984).

City is free to establish such fees and charges for services rendered to residents outside its corporate limits as it may deem reasonable and proper, by contract or by ordinance. Atlantic Constr. Co. v. City of Raleigh, 230 N.C. 365, 53 S.E.2d 165 (1949).

Town had authority to impose impact and tap fees under this section and G.S. 160A-313. South Shell Inv. v. Town of Wrightsville Beach, 703 F. Supp. 1192 (E.D.N.C. 1988), aff'd, 900 F.2d 255 (4th Cir. 1990).

Town of Wrightsville Beach had the authority to impose utility system impact fees and tap fees for water and sewer services under the public enterprise statute and no specific enabling legislation was necessary; this section makes no distinction between increasing rates, rents, or fees in order to raise the money necessary for capital improvements, and there is no language in the statute limiting a town's authority to impose fees for the use of the services as a method of raising money for capital expansion or requiring that a town only increase rates for the services furnished to fund such improvements; thus, under this section the town could increase fees, rates or both to raise money needed. South Shell Inv. v. Town of Wrightsville Beach, 703 F. Supp. 1192 (E.D.N.C. 1988), aff'd, 900 F.2d 255 (4th Cir. 1990).

Contractor Lacked Standing to Contest City's Reimbursement Policy. - Solid waste contractor had no standing to claim a city's policy of reimbursing certain waste collection fees paid by apartment complexes using the city's preferred contractor was discriminatory because (1) the complaining contractor was not a customer of the city's public enterprise services, (2) the anti-discrimination principle embodied in G.S. 160A-314 protected only customers of public enterprise services, not service providers, and (3) the complaining contractor's ultimate argument that the city treated similarly situated apartment complexes differently by paying for fees for complexes who hired the preferred contractor and not those who hired another provider did not pertain to the complaining contractor, as that contractor was not assessed the fees at issue, nor was the complaining contractor a customer for whom the city provided solid waste services. Cedar Greene, LLC v. City of Charlotte, 222 N.C. App. 1, 731 S.E.2d 193 (2012).

Apartment Complex Had Standing to Contest City's Reimbursement Policy. - Apartment complex had standing to claim a city's policy of reimbursing certain waste collection fees paid by apartment complexes using the city's preferred contractor was discriminatory because (1) the complex was a customer under the public enterprise statute at issue, (2) the complex demonstrated an immediate or threatened injury by the city's actions, as, construing the complex's allegations as true, due to the city's policy of reimbursing only the city's preferred contractor for disposal of certain solid waste collected from multi-family complexes, the complex was faced with the choice of either losing the benefit of part of the disposal fee the complex paid to the city each year for disposing of all solid waste collected from the complex and, in effect, paying twice for such disposal if the complex hired another contractor for supplemental waste collection, or accepting supplemental collection rates charged by the preferred contractor, which were higher than those of the other contractor, thereby preventing the complex from obtaining monetary savings in the collection and disposal of the complex's supplemental solid waste, and (3) the fact that the complex had not already suffered either alleged monetary loss was inapposite for standing purposes, since a showing of immediate or threatened injury sufficed for purposes of standing. Cedar Greene, LLC v. City of Charlotte, 222 N.C. App. 1, 731 S.E.2d 193 (2012).

City's Policy of Reimbursing Fees Paid by Apartment Complexes Using the City's Preferred Contractor Was Not Discriminatory. - City's policy of reimbursing certain waste collection fees paid by apartment complexes using the city's preferred waste collection contractor, but not when a complex used a different contractor, was not discriminatory, in violation of G.S. 160A-314, because (1) the policy forced no complex to contract with the preferred contractor, (2) the city charged all complexes the same fee, (3) that fee gave all complexes an equal chance to receive the same city service, and (4) a difference in waste collection costs complained about by a certain complex was solely due to the complex's choice of contractors. Cedar Greene, LLC v. City of Charlotte, 222 N.C. App. 1, 731 S.E.2d 193 (2012).

Rates Charged Consumers Outside Corporate Limits Held Not Discriminatory. - An amendment to an ordinance which substantially increased the rates charged for water supplied by a municipality for consumption outside its corporate limits could not be held discriminatory in a legal sense when it applied alike to all nonresidents, and it was immaterial that a nonresident consumer deemed such rates exorbitant or unreasonable. Fulghum v. Town of Selma, 238 N.C. 100, 76 S.E.2d 368 (1953).

Minimum Monthly Charge Assessed Against Condominium Complex Held Reasonable. - For a municipal water supplier to charge a condominium complex based only on the size of the service line rather than on the number of residential units in the complex would unfairly discriminate against single residential customers because it would place an unfair portion of the costs of water service on them. Accordingly, a minimum monthly charge assessed condominium complexes is neither discriminatory nor arbitrary, but is reasonable. Bogue Shores Homeowners Ass'n v. Town of Atl. Beach, 109 N.C. App. 549, 428 S.E.2d 258 (1993), pet. disc. rev. denied, 334 N.C. 162, 432 S.E.2d 356 (1993).

Ordinance Held Unenforceable Against City. - A county ordinance providing that no fees could be charged residents of the county or franchise haulers by the owners or operators of a sanitary landfill located within the county was improper, because it based fees upon the wrong criteria (residence rather than kind and degree of service) in violation of this section. Therefore, the county could not enforce the ordinance against city which operated a sanitary landfill in the county. Cabarrus County v. City of Charlotte, 71 N.C. App. 192, 321 S.E.2d 476 (1984).

Applied in Ricks v. Town of Selma, 99 N.C. App. 82, 392 S.E.2d 437 (1990).

Cited in City of Wilson v. Carolina Bldrs. of Wilson, Inc., 94 N.C. App. 117, 379 S.E.2d 712 (1989); Pulliam v. City of Greensboro, 103 N.C. App. 748, 407 S.E.2d 567 (1991); Davis v. Town of Southern Pines, 101 N.C. App. 570, 400 S.E.2d 82 (1991); Carolina Water Serv., Inc. v. Town of Atlantic Beach, 121 N.C. App. 23, 464 S.E.2d 317 (1995); Cunningham v. City of Greensboro, 212 N.C. App. 86, 711 S.E.2d 477 (2011).


§ 160A-314.1. Availability fees for solid waste disposal facilities; collection of any solid waste fees.

  1. A city may impose a fee for the collection of solid waste. The fee may not exceed the costs of collection.
  2. In addition to a fee that a city may impose for collecting solid waste or for using a disposal facility, a city may impose a fee for the availability of a disposal facility provided by the city. A fee for availability may not exceed the cost of providing the facility and may be imposed on all improved property in the city that benefits from the availability of the facility. A city may not impose an availability fee on property whose solid waste is collected by a county, a city, or a private contractor for a fee if the fee imposed by a county, a city, or a private contractor for the collection of solid waste includes a charge for the availability and use of a disposal facility provided by the city. Property served by a private contractor who disposes of solid waste collected from the property in a disposal facility provided by a private contractor that provides the same services as those provided by the city disposal facility is not considered to benefit from a disposal facility provided by the city and is not subject to a fee imposed by the city for the availability of a disposal facility provided by the city. To the extent that the services provided by the city disposal facility differ from the services provided by the disposal facility provided by a private contractor in the same city, the city may charge an availability fee to cover the costs of the additional services provided by the city disposal facility.
  3. A city may adopt an ordinance providing that any fee imposed under subsection (a) or under G.S. 160A-314 for collecting or disposing of solid waste may be billed with property taxes, may be payable in the same manner as property taxes, and, in the case of nonpayment, may be collected in any manner by which delinquent personal or real property taxes can be collected. If an ordinance states that delinquent fees can be collected in the same manner as delinquent real property taxes, the fees are a lien on the real property described on the bill that includes the fee.

A city may impose a fee for the use of a disposal facility provided by the city. Except as provided in this subsection, the fee for use may not exceed the cost of operating the facility. The fee may exceed those costs if the city enters into a contract with another local government located within the State to accept the other local government's solid waste and the city by ordinance levies a surcharge on the fee. The fee authorized by this paragraph may only be used to cover the costs of operating the facility. The surcharge authorized by this paragraph may be used for any purpose for which the city may appropriate funds. A fee under this paragraph may be imposed only on those who use the facility. The fee for use may vary based on the amount, characteristics, and form of recyclable materials present in solid waste brought to the facility for disposal.

In determining the costs of providing and operating a disposal facility, a city may consider solid waste management costs incidental to a city's handling and disposal of solid waste at its disposal facility. A fee for the availability or use of a disposal facility may be based on the combined costs of the different disposal facilities provided by the city.

History

(1991, c. 652, s. 5; 2007-550, s. 10(b); 2013-413, s. 59.4(c).)

Effect of Amendments. - Session Laws 2007-550, s. 10(b), effective August 1, 2007, in the first paragraph of subsection (a), inserted "that provides the same services as those provided by the city disposal facility" in the fourth sentence, and added the last sentence.

Session Laws 2013-413, s. 59.4(c), effective August 1, 2013, redesignated former subsection (a) as present subsection (a1), and added subsection (a).

§ 160A-315. Billing and collecting agents for certain sewer systems.

Any city that maintains and operates a sewage collection and disposal system but does not maintain and operate a water distribution system is authorized to contract with the owner or operator of the water distribution system operating within the area served by the city sewer system to act as the billing and collection agent of the city for any charges, rents, or penalties imposed by the city for sewer services.

History

(1933, c. 322, s. 1; 1941, c. 106; 1961, c. 1074; 1971, c. 698, s. 1.)

§ 160A-316. Independent water companies to supply information.

The owner or operator of any independent or private water distribution system operating within a city that maintains and operates a sewage collection and disposal system shall furnish to the city upon request copies of water meter readings and any other water consumption records and data that the city may require to bill and collect its sewer rents and charges. The city shall pay the reasonable cost of supplying this information.

History

(1933, c. 322, s. 1; 1941, c. 106; 1961, c. 1074; 1971, c. 698, s. 1.)

§ 160A-317. Power to require connections to water or sewer service and the use of solid waste collection services.

  1. Connections. - A city may require an owner of developed property on which there are situated one or more residential dwelling units or commercial establishments located within the city limits and within a reasonable distance of any water line or sewer collection line owned, leased as lessee, or operated by the city or on behalf of the city to connect the owner's premises with the water or sewer line or both, and may fix charges for the connections. In lieu of requiring connection under this subsection and in order to avoid hardship, the city may require payment of a periodic availability charge, not to exceed the minimum periodic service charge for properties that are connected.
  2. System Development Fees. - A city may require system development fees only in accordance with Article 8 of Chapter 162A of the General Statutes.
  3. Solid Waste. - A city may require an owner of improved property to do any of the following:
    1. Place solid waste in specified places or receptacles for the convenience of city collection and disposal.
    2. Separate materials before the solid waste is collected.
    3. Participate in a recycling program by requiring separation of designated materials by the owner or occupant of the property prior to disposal. An owner of recovered materials as defined by G.S. 130A-290(a)(24) retains ownership of the recovered materials until the owner conveys, sells, donates, or otherwise transfers the recovered materials to a person, firm, company, corporation, or unit of local government. A city may not require an owner to convey, sell, donate, or otherwise transfer recovered materials to the city or its designee. If an owner places recovered materials in receptacles or delivers recovered materials to specific locations, receptacles, and facilities that are owned or operated by the city or its designee, then ownership of these materials is transferred to the city or its designee.
    4. Participate in any solid waste collection service provided by the city or by a person who has a contract with the city if the owner or occupant of the property has not otherwise contracted for the collection of solid waste from the property.
  4. A city may impose a fee for the solid waste collection service provided under subdivision (4) of subsection (b) of this section. The fee may not exceed the costs of collection.
  5. In accordance with G.S. 87-97.1, when developed property is located so as to be served by a city water line and the property owner has connected to that water line, the property owner may continue to use any private water well located on the property for nonpotable purposes as long as the water well is not interconnected to the city water line and the city shall not require the owner of any such water well to abandon, cap, or otherwise compromise the integrity of the water well.

History

(1917, c. 136, subch. 7, s. 2; C.S., s. 2806; 1971, c. 698, s. 1; 1979, c. 619, s. 14: 1981, c. 823; 1989, c. 741, s. 2; 1991, c. 698, s. 2; 1993, c. 165, s. 2; 1995, c. 511, s. 4; 2015-246, s. 3.5(f); 2017-138, s. 4(b).)

Editor's Note. - Session Laws 1993, c. 165, which amended this section, in s. 3 provides that the act is effective upon ratification and does not apply to any contracts in existence at that time or to any extensions or renewals thereof. The act was ratified on June 16, 1993.

Session Laws 1995, c. 511, which amended this section, in s. 5 provides: "It is the express purpose of this act to provide additional and alternative powers to political subdivisions and authorities affected by this act and to provide additional and alternative methods by which the functions affected by this act may be performed. This act is not intended, and shall not be construed, to derogate, limit, or repeal any power now existing under any other law, whether general, special, or local."

Session Laws 1995, c. 511, which amended this section, in s. 6 provides: "All general, special, or local laws, or parts thereof, inconsistent with the provisions of this act are declared to be inapplicable to the provisions of this act."

Session Laws 2015-246, s. 3.5(j), made subsection (d), as added by Session Laws 2015-246, s. 3.5(f), effective August 1, 2016.

Session Laws 2015-246, s. 20, is a severability clause.

Session Laws 2017-138, s. 11, made subsection (a4), as added by Session Laws 2017-138, s. 4(b), effective October 1, 2017, and applicable to system development fees imposed on or after that date. Session Laws 2017-138, s. 11, further provides: "Nothing in this act provides retroactive authority for any system development fee, or any similar fee for water or sewer services to be furnished, collected by a local governmental unit prior to October 1, 2017."

Effect of Amendments. - Session Laws 2015-246, s. 3.5(f), effective August 1, 2016, added subsection (d).

Session Laws 2017-138, s. 4(b), added subsection (a4). For effective date and applicability, see editor's note.

CASE NOTES

Legislature Contemplated Anticompetitive Conduct by Cities Respecting Sewage Services Within City Limits. - Section 160A-312 grants cities the authority to acquire, construct, maintain, improve, own, operate, and regulate sewage collection systems of all types, and additionally, the North Carolina scheme explicitly contemplates anticompetitive activity because it expressly authorizes cities to require those within its limits to use its sewer facilities. Therefore, the North Carolina legislature contemplated anticompetitive conduct by cities respecting sewage services within city limits. Pinehurst Enters., Inc. v. Town of S. Pines, 690 F. Supp. 444 (M.D.N.C. 1988), aff'd, 887 F.2d 1080 (4th Cir. 1989).

Section Not Applicable to Property Located Outside City. - A municipality is not authorized to compel owners of improved property located outside the city, but which may be located upon or near one of its sewer lines, or a line which empties into the city's sewerage system, to connect with the sewerline. Atlantic Constr. Co. v. City of Raleigh, 230 N.C. 365, 53 S.E.2d 165 (1949); Smith v. City of Winston-Salem, 247 N.C. 349, 100 S.E.2d 835 (1957), decided under former G.S. 160-240.

Authority to Impose Impact and Tap Fees. - Town of Wrightsville Beach had the authority to impose utility system impact fees and tap fees for water and sewer services under the public enterprise statute and no specific enabling legislation was necessary; G.S. 160A-314(a) makes no distinction between increasing rates, rents, or fees in order to raise the money necessary for capital improvements, and there is no language in the statute limiting a town's authority to impose fees for the use of the services as a method of raising money for capital expansion or requiring that a town only increase rates for the services furnished to fund such improvements; thus, under G.S. 160A-314 the town could increase fees, rates or both to raise money needed. South Shell Inv. v. Town of Wrightsville Beach, 703 F. Supp. 1192 (E.D.N.C. 1988), aff'd, 900 F.2d 255 (4th Cir. 1990).

Cited in Blevins v. Denny, 114 N.C. App. 766, 443 S.E.2d 354 (1994); Homebuilders Ass'n v. City of Charlotte, 336 N.C. 37, 442 S.E.2d 45 (1994).


§ 160A-318. Mutual aid contracts.

  1. Any two or more cities, counties, water and sewer authorities, metropolitan sewage districts, sanitary districts, or private utility companies or combination thereof may enter into contracts with each other to provide mutual aid and assistance in restoring electric, water, sewer, or gas services in the event of natural disasters or other emergencies under such terms and conditions as may be agreed upon. Mutual aid contracts may include provisions for furnishing personnel, equipment, apparatus, supplies and materials; for reimbursement or indemnification of the aiding party for loss or damage incurred by giving aid; for delegating authority to a designated official or employee to send aid upon request; and any other provisions not inconsistent with law.
  2. Officials and employees furnished by one party in aid of another party pursuant to a mutual aid contract entered into under authority of this section shall be conclusively deemed for all purposes to remain officials and employees of the aiding party. While providing aid to another and while traveling to and from another city or county pursuant to giving aid, they shall retain all rights, privileges, and immunities, including coverage under the North Carolina Workers' Compensation Act, as they enjoy while performing their normal duties.
  3. Notwithstanding any other provisions of law to the contrary, any party to a mutual aid contract entered into under authority of this section, may sell or otherwise convey or deliver to another party to the contract personal property to be used in restoring utility services pursuant to the contract, without following procedures for the sale or disposition of property prescribed by any general law, local act, or city charter.
  4. Nothing in this section shall be construed to deprive any party to a mutual aid contract of its discretion to send or decline to send its personnel, equipment, and apparatus in aid of another party to the contract under any circumstances, whether or not obligated by the contract to do so. In no case shall a party to a mutual aid contract or any of its officials or employees be held to answer in any civil or criminal action for declining to send personnel, equipment, or apparatus to another party to the contract, whether or not obligated by contract to do so.

History

(1967, c. 450; 1971, c. 698, s. 1; 1991, c. 636, s. 3.)

§ 160A-319. Utility franchises.

  1. A city shall have authority to grant upon reasonable terms franchises for a telephone system and any of the enterprises listed in G.S. 160A-311, except a cable television system. A franchise granted by a city authorizes the operation of the franchised activity within the city. No franchise shall be granted for a period of more than 60 years. A franchise granted for a sanitary landfill shall be subject to all requirements pertaining thereto under G.S. 130A-294. A franchise for solid waste collection or disposal systems and facilities, other than sanitary landfills, shall not be granted for a period of more than 30 years. Except as otherwise provided by law, when a city operates an enterprise, or upon granting a franchise, a city may by ordinance make it unlawful to operate an enterprise without a franchise.
  2. For the purposes of this section, "cable television system" means any system or facility that, by means of a master antenna and wires or cables, or by wires or cables alone, receives, amplifies, modifies, transmits, or distributes any television, radio, or electronic signal, audio or video or both, to subscribing members of the public for compensation. "Cable television system" does not include providing master antenna services only to property owned or leased by the same person, firm, or corporation, nor communication services rendered to a cable television system by a public utility that is regulated by the North Carolina Utilities Commission or the Federal Communications Commission in providing those services.

History

(Code, ss. 704, 3117; 1901, c. 283; 1905, c. 526; Rev., s. 2916; 1907, c. 978; P.L. 1917, c. 223; C. S., s. 2623; Ex. Sess. 1921, c. 58; 1927, c. 14; 1933, c. 69; 1949, c. 938; 1955, c. 77; 1959, c. 391; 1961, c. 308; 1967, c. 100, s. 2; c. 1122, s. 1; 1969, c. 944; 1971, c. 698, s. 1; 1975, c. 664, s. 11; 1991 (Reg. Sess., 1992), c. 1013, s. 2; 2006-151, s. 15; 2017-10, s. 3.2(c); 2018-114, s. 21(b).)

Editor's Note. - Session Laws 1991 (Reg. Sess., 1992), c. 1013, which amended this section, in s. 8 provides: "Any contract for solid waste collection or disposal entered into by any county, city, or town that would have been lawful if this act had been in effect at the time the contract was entered into is validated. The provisions of this act that limit a contract or franchise for the collection and disposal of solid waste to a period of not more than 30 years shall not be construed to invalidate any contract or franchise for a longer period up to 60 years that was entered into by any county, city, or town prior to the date this act is effective." The act became effective July 22, 1992.

Effect of Amendments. - Session Laws 2006-151, s. 15, effective January 1, 2007, in subsection (a), in the first sentence, substituted "a telephone system and" for "the operation within the city of" and substituted "G.S. 160A-311, except a cable television system" for "G.S. 160A-311 and for the operation of telephone systems" at the end, added the second sentence, and deleted "years and cable television franchises shall not be granted for a period of more than 20" following "period of more than 30" at the end of the third sentence.

Session Laws 2017-10, s. 3.2(c), effective retroactively to July 1, 2015, in the second sentence of subsection (a), substituted "including a franchise granted to a sanitary landfill for the life-of-site of the landfill pursuant to G.S. 130A-294(b1); provided, however" for "except" and inserted "other than sanitary landfills" following "disposal systems and facilities."

Session Laws 2018-114, s. 21(b), effective June 27, 2018, in subsection (a), rewrote the third sentence and added the fourth sentence.

Legal Periodicals. - For note, "North Carolina's Theft of Cable Television Service Statute: Prospects of a Brighter Future for the Cable Television Industry," see 63 N.C.L. Rev. 1296 (1985).

CASE NOTES

Editor's Note. - Most of the cases cited below were decided under former similar provisions.

Every town has the power to grant franchises to public utilities, that is, the right to engage within the corporate boundaries in business of a public nature. Duke Power Co. v. Blue Ridge Elec. Membership Corp., 253 N.C. 596, 117 S.E.2d 812 (1961).

Grant of Franchise is Governmental Function. - In the granting of a franchise to a public utility to operate a system for furnishing gas for cooking and heating to residents of the municipality, the municipality exercises a governmental function, and may not be held liable in tort to a person injured by a gas explosion, even if it be conceded that the city was negligent in continuing the franchise after the pipelines and equipment of the licensee had become defective. Denning v. Goldsboro Gas Co., 246 N.C. 541, 98 S.E.2d 910 (1957).

Grant or Refusal of Franchise Vested Solely in Governing Body. - The power to grant or to refuse to grant a franchise is vested solely in the governing body of the city; this power is essentially legislative in nature, and its exercise is discretionary. Madison Cablevision, Inc. v. City of Morganton, 325 N.C. 634, 386 S.E.2d 200 (1989).

The sovereign right to franchise implies the power to control for public benefit, including among other things, the right to fix reasonable rates and to specify where the franchise may or may not be exercised, so as to afford adequate service to the public. Duke Power Co. v. Blue Ridge Elec. Membership Corp., 253 N.C. 596, 117 S.E.2d 812 (1961).

Terms and Conditions Within Discretion of Local Body. - The terms and conditions upon which franchises to public utilities are to be granted, unless clearly unreasonable or expressly prohibited by law, rest in the sound discretion of the local body. Mullen v. Town of Louisburg, 225 N.C. 53, 33 S.E.2d 484 (1945).

A franchise need not be exclusive. Indeed, if it is exclusive, an additional question as to its validity arises under N.C. Const., Art. I, §§ 32 and 34. Kornegay v. City of Raleigh, 269 N.C. 155, 152 S.E.2d 186 (1967).

No grant of franchise by a city is deemed exclusive unless so expressed by the grant. Hill v. Elizabeth City, 298 F. 67 (4th Cir. 1924).

Grant of Exclusive Privilege Held Unconstitutional. - Those provisions of an ordinance granting the exclusive privilege to construct and maintain a waterworks within the corporate limits of a town, and the exclusive use of its streets, alleys, sidewalks, public grounds, streams and bridges, came within the confirmation of N.C. Const., Art. I, § 34, which declares that "perpetuities and monopolies are contrary to the genius of a free state and shall not be allowed." Thrift v. Elizabeth City, 122 N.C. 31, 30 S.E. 349 (1898).

No Right to Grant Franchise for Use of Streets Absent Legislative Authority. - The law is well settled that the title either of the fee in the soil or an easement is vested in the municipality, in trust for the use of the people as and for a public highway, and that it cannot, without legislative authority, divert them from this use. Therefore, a grant by a city of a franchise allowing gas pipes to be laid in its streets is void unless allowed by express legislation. Elizabeth City v. Banks, 150 N.C. 407, 64 S.E. 189 (1909).

City Must Follow Procedural Restrictions of Charter. - Where the charter of a city provides procedural restrictions upon the granting by the city of franchises, such city must follow such procedural restrictions of its charter in granting a franchise, regardless of whether the authority to grant the particular franchise is conferred upon the city by statute or by its own charter. Shaw v. City of Asheville, 269 N.C. 90, 152 S.E.2d 139 (1967).

Statutory Term Read into Contract. - Where a franchise granted by a municipality fails to stipulate a term, the statutory term of 60 years will be read into the contract as a part thereof. Boyce v. City of Gastonia, 227 N.C. 139, 41 S.E.2d 355 (1947).

Grant of Right to Construct City-Wide Television Cable System as Franchise. - The grant by a city to a person, firm or corporation of the right to construct a city-wide television cable system of towers, poles, cables, wires, and other apparatus in, along, and over its streets and other public ways and to operate such systems for the profit of the grantee is clearly a franchise, for it is the grant of a right which is not held by all persons in common and which may be granted only by the act of the sovereign or its authorized agent. Kornegay v. City of Raleigh, 269 N.C. 155, 152 S.E.2d 186 (1967).

Acceptance of a municipal franchise by a water company carries with it the duty of supplying water to all persons along the lines of its mains without discrimination and at uniform rates. Griffin v. Goldsboro Water Co., 122 N.C. 206, 30 S.E. 319 (1898).

A water company operating under a franchise-contract from a city or town, and receiving the benefits and advantages arising thereunder, may not repudiate the duty of supplying water free to public schools, etc., which it had expressly contracted to do in accepting the franchise containing such provision, and collect for water it had furnished upon quantum meruit or otherwise. Henderson Water Co. v. Trustees of Henderson Graded Schools, 151 N.C. 171, 65 S.E. 927 (1909).

License Granted to Railroad Not a Permanent Easement. - A license granted by a city to a railroad company to lay a track upon and to that extent use the streets, in the absence of an express power in the charter to do so, cannot be construed into a grant of a permanent easement. State v. Atlantic & N.C.R.R., 141 N.C. 736, 53 S.E. 290 (1906).

Power to Annul License. - After a city, by ordinance, has granted a street railroad a right to construct its line over certain streets, it cannot by subsequent ordinance arbitrarily annul such license. Asheville Street Ry. v. City of Asheville, 109 N.C. 688, 14 S.E. 316 (1891).

Displacement of Cable Television Service Competition. - The powers conferred upon cities by the North Carolina General Statutes with respect to provision and franchising of cable television service reflect the clear contemplation that competition may be displaced with respect to this service. Madison Cablevision, Inc. v. City of Morganton, 325 N.C. 634, 386 S.E.2d 200 (1989).

Rights of Abutting Owners. - As against the rights of abutting owners, the municipal authorities have no power to grant to a railroad company an easement to lay its track upon and operate its trains over the streets of a town, even though the title to the streets be in the town. Staton v. Atlantic Coast Line R.R., 147 N.C. 428, 61 S.E. 455 (1908).

No Violation of Chapter 75. - Municipal ownership and operation of cable television systems does not violate Chapter 75, which relates to monopolies. Madison Cablevision, Inc. v. City of Morganton, 325 N.C. 634, 386 S.E.2d 200 (1989).

Town Was Equitably Estopped from Requiring a Franchise for a Landfill. - Neighboring town was equitably estopped from arguing that a county failed to receive a public enterprise franchise from the town for the operation of a proposed landfill, despite an ordinance that the town passed after it gave its approval for the landfill before later withdrawing its approval. County of Wake v. N.C. Dep't of Env't, 155 N.C. App. 225, 573 S.E.2d 572 (2002), cert. dismissed, 357 N.C. 62, 579 S.E.2d 387 (2003).

City's operation of a fiber optics network is a cable television system authorized to be owned and operated as a public enterprise. BellSouth Telecomms., Inc. v. City of Laurinburg, 168 N.C. App. 75, 606 S.E.2d 721, cert. denied, - N.C. - , 615 S.E.2d 660, cert. denied, 359 N.C. 629, - S.E.2d - (2005).

Applied in City of Lexington v. Summit Communications, Inc., 76 N.C. App. 333, 332 S.E.2d 519 (1985).

Cited in Duke Power Co. v. City of High Point, 22 N.C. App. 91, 205 S.E.2d 774 (1974); Pulliam v. City of Greensboro, 103 N.C. App. 748, 407 S.E.2d 567 (1991).


§ 160A-320. Public enterprise improvements.

  1. Authorization. - A city may contract with a developer or property owner, or with a private party who is under contract with the developer or property owner, for public enterprise improvements that are adjacent or ancillary to a private land development project. Such a contract shall allow the city to reimburse the private party for costs associated with the design and construction of improvements that are in addition to those required by the city's land development regulations. Such a contract is not subject to Article 8 of Chapter 143 of the General Statutes if the public cost will not exceed two hundred fifty thousand dollars ($250,000) and the city determines that: (i) the public cost will not exceed the estimated cost of providing for those improvements through either eligible force account qualified labor or through a public contract let pursuant to Article 8 of Chapter 143 of the General Statutes; or (ii) the coordination of separately constructed improvements would be impracticable. A city may enact ordinances and policies setting forth the procedures, requirements, and terms for agreements authorized by this section.
  2. Property Acquisition. - The improvements may be constructed on property owned or acquired by the private party or on property owned or acquired by the city. The private party may assist the city in obtaining easements in favor of the city from private property owners on those properties that will be involved in or affected by the project. The contract between the city and the private party may be entered into before the acquisition of any real property necessary to the project.

History

(2005-426, s. 8(d).)

§ 160A-321. Sale, lease, or discontinuance of city-owned enterprise.

  1. A city is authorized to sell or lease as lessor any public enterprise that it may own upon any terms and conditions that the council may deem best. However, except as to transfers to another governmental entity pursuant to G.S. 160A-274 or as provided in subsection (b) of this section, a city-owned public enterprise shall not be sold, leased to another, or discontinued unless the proposal to sell, lease, or discontinue is first submitted to a vote of the people and approved by a majority of those who vote thereon. Voter approval shall not be required for the sale, lease, or discontinuance of airports, off-street parking systems and facilities, or solid waste collection and disposal systems.
  2. For the sale, lease, or discontinuance of water treatment systems, water distribution systems, or wastewater collection and treatment systems, a city may, but is not required to, submit to its voters the question of whether such sale, lease, or discontinuance shall be undertaken. The referendum is to be conducted pursuant to the general and local laws applicable to special elections in such city.

History

(Code, ss. 704, 3117; 1901, c. 283; 1905, c. 526; Rev., s. 2916; 1907, c. 978; P.L. 1917, c. 223; C.S., s. 2623; Ex. Sess. 1921, c. 58; 1927, c. 14; 1933, c. 69; 1949, c. 938; 1955, c. 77; 1959, c. 391; 1961, c. 308; 1967, c. 100, s. 2; c. 1122, s. 1; 1969, c. 944; 1971, c. 698, s. 1; 1973, c. 489, s. 2; 2011-212, s. 1; 2018-5, s. 37.1(e).)

Effect of Amendments. - Session Laws 2011-212, s. 1, effective January 1, 2012, added the subsection (a) designation, and therein inserted "or as provided in subsection (b) of this section" in the second sentence; and added subsection (b).

Session Laws 2018-5, s. 37.1(e), effective July 1, 2018, inserted "public" twice in subsection (a).

CASE NOTES

Approval of Voters Not Required for Sale of Diesel Engines. - Where a municipality decided to abandon the generation of electricity by the use of diesel engines and substitute therefor electricity purchased wholesale for distribution through its electric plant, and in pursuance of such change of policy advertised a sale of diesel engines, there was no sale by such municipality of its electric plant requiring approval of a majority of the qualified voters. Mullen v. Town of Louisburg, 225 N.C. 53, 33 S.E.2d 484 (1945), decided under former similar statutory provisions.

As to private sale under former statutory provisions, see Allen v. Town of Reidsville, 178 N.C. 513, 101 S.E. 267 (1919).


§ 160A-322. Contracts for electric power and water.

A city is authorized to enter into contracts for a period not exceeding 40 years for the supply of water, and for a period not exceeding 30 years for the supply of electric power or other public commodity or services.

History

(Code, ss. 704, 3117; 1901, c. 283; 1905, c. 526; Rev., s. 2916; 1907, c. 978; P.L. 1917, c. 223; C. S., s. 2623; Ex. Sess. 1921, c. 58; 1927, c. 14; 1933, c. 69; 1949, c. 938; 1955, c. 77; 1959, c. 391; 1961, c. 308; 1967, c. 100, s. 2; c. 1122, s. 1; 1969, c. 944; 1971, c. 698, s. 1.)

CASE NOTES

Cited in Mulberry-Fairplains Water Ass'n v. Town of N. Wilkesboro, 105 N.C. App. 258, 412 S.E.2d 910 (1992).


§ 160A-323. Load management and peak load pricing of electric power.

In addition and supplemental to the powers conferred upon municipalities by the laws of the State and for the purposes of conserving electricity and increasing the economy of operation of municipal electric systems, any municipality owning or operating an electric distribution system, any municipality engaging in a joint project pursuant to Chapter 159B of the General Statutes and any joint agency created pursuant to Chapter 159B of the General Statutes, shall have and may exercise the power and authority:

  1. To investigate, study, develop and place into effect procedures and to investigate, study, develop, purchase, lease, own, operate, maintain, and put into service devices, which will temporarily curtail or cut off certain types of appliances or equipment for short periods of time whenever an unusual peak demand threatens to overload the electric system or economies would result; and
  2. To fix rates and bill customers by a system of nondiscriminatory peak pricing, with incentive rates for off-peak use of electricity charging more for peak periods than for off-peak periods to reflect the higher cost of providing electric service during periods of peak demand on the electric system.

History

(1977, c. 232.)

§ 160A-324. Contract with private solid waste collection firm(s).

  1. If the area to be annexed described in an act of the General Assembly includes an area where a firm (i) meets the requirements of subsection (a1) of this section, (ii) on the ninetieth day preceding the date of introduction in the House of Representatives or the Senate of the bill which became the act making the annexation, was providing solid waste collection services in the area to be annexed, (iii) is still providing such services on the date the act becomes law, and (iv) by reason of the annexation the firm's franchise with a county or arrangements with third parties for solid waste collection will be terminated, the city shall do one of the following:
    1. Contract with the firm for a period of two years after the effective date of the annexation ordinance to allow the firm to provide collection services to the city in the area to be annexed for sums determined under subsection (d) of this section.
    2. Pay the firm for the firm's economic loss, with one-third of the economic loss to be paid within 30 days of the termination and the balance paid in 12 equal monthly installments during the next succeeding 12 months. Any remaining economic loss payment is forfeited if the firm terminates service to customers in the annexation area prior to the effective date of the annexation.
    3. Make other arrangements satisfactory to the parties.
  2. To qualify for the options set forth in subsection (a) of this section, a firm must have, subsequent to receiving notice of the annexation in accordance with subsection (b) of this section, filed with the city clerk at least 10 days prior to the effective date of the annexation a written request to contract with the city to provide solid waste collection services containing a certification, signed by an officer or owner of the firm, that the firm serves at least 50 customers within the county at that time.
  3. Firms shall file notice of provision of solid waste collection service with the city clerk of all cities located in the firm's collection area or within five miles thereof.
  4. The city shall make a good faith effort to provide at least 30 days before the effective date of the annexation a copy of the act to each private firm providing solid waste collection services in the area to be annexed. The notice shall be sent to all firms that filed notice in accordance with subsection (a2) of this section by certified mail, return receipt requested, to the address provided by the firm under subsection (a2) of this section.
  5. The city may require that the contract contain:
    1. A requirement that the firm post a performance bond and maintain public liability insurance coverage;
    2. A requirement that the firm agree to service customers in the annexed area that were not served by that firm on the effective date of annexation;
    3. A provision that divides the annexed area into service areas if there were more than one firm being contracted within the area, such that the entire area is served by the firms, or by the city as to customers not served by the firms;
    4. A provision that the city may serve customers not served by the firm on the effective date of annexation;
    5. A provision that the contract can be cancelled in writing, delivered by certified mail to the firm in question with 30 days to cure, substantial violations of the contract, but no contract may be cancelled on these grounds unless the Local Government Commission finds that substantial violations have occurred, except that the city may suspend the contract for up to 30 days if it finds substantial violation of health laws;
    6. Performance standards, not exceeding city standards existing at the time of notice provided pursuant to subsection (b) of this section, with provision that the contract may be cancelled for substantial violations of those standards, but no contract may be cancelled on those grounds unless the Local Government Commission finds that substantial violations have occurred;
    7. A provision for monetary damages if there are violations of the contract or of performance standards.
  6. If the services to be provided to the city by reason of the annexation are substantially the same as rendered under the franchise with the county or arrangements with the parties, the amount paid by the city shall be at least ninety percent (90%) of the amount paid or required under the existing franchise or arrangements. If such services are required to be adjusted to conform to city standards or as a result of changes in the number of customers and as a result there are changes in disposal costs (including mileage and landfill charges), requirements for storage capacity (dumpsters and/or residential carts), and/or frequency of collection, the amount paid by the city for the service shall be increased or decreased to reflect the value of such adjusted services as if computed under the existing franchise or arrangements. In the event agreement cannot be reached between the city and the firm under this subsection, the matters shall be determined by the Local Government Commission.
  7. ,  (f) Repealed by Session Laws 2006-193, s. 1, applicable to annexations for which the bill making the annexation is enacted  on or after January 1, 2007.
  8. If the city fails to offer a contract to the firm within 30 days following the effective date of the annexation act, the firm may appeal within 60 days following the effective date of the annexation act to the Local Government Commission for an order directing the city to offer a contract. If the Local Government Commission finds that the city has not made an offer which complies with this section, it shall order the city to pay to the firm a civil penalty of the amount of payments it finds that the city would have had to make under the contract, during the noncompliance period until the contract offer is made. Either the firm or the city may obtain judicial review in accordance with Chapter 150B of the General Statutes.
  9. A firm which has given notice under subsection (a) of this section that it desires to contract, and any firm that the city believes is eligible to give such notice, shall make available to the city not later than 30 days following a written request of the city all information in its possession or control, including but not limited to operational, financial and budgetary information, necessary for the city to determine if the firm qualifies for the benefits of this section and to determine the nature and scope of the potential contract and/or economic loss. The firm forfeits its rights under this section if it fails to make a good faith response within 30 days following receipt of the written request for information from the city, provided that the city's written request so states by specific reference to this section.
    1. As used in this section, the following terms mean:
    1. Economic loss. - A sum equal to 15 times the average gross monthly revenue for the three months prior to the introduction of the bill under subsection (a) of this section, collected or due the firm for residential, commercial, and industrial collection service in the area annexed or to be annexed; provided that revenues shall be included in calculations under this subdivision only if policies of the city will provide solid waste collection to those customers such that arrangements between the firm and the customers will be terminated.
    2. Firm. - A private solid waste collection firm.

History

(1989, c. 598, s. 1; 2006-193, s. 3.)

Effect of Amendments. - Session Laws 2006-193, s. 3, effective August 3, 2006, and applicable to annexations for which the bill making the annexation is enacted on or after January 1, 2007, rewrote subsection (a); added subsections (a1), (a2) and (i); added the last sentence in subsection (b); deleted "private" preceding "firm" and "firms" throughout subsections (c), (d) and (g); substituted "in writing, delivered by certified mail to the firm in question with 30 days to cure" for "for" in subdivision (c)(5); inserted "existing at the time of notice provided pursuant to subsection (b) of this section" in subdivision (c)(6); substituted "the" for "such" near the end of subsection (d); deleted subsections (e) and (f); and, in subsection (h), substituted "30 days" for "five days" in the first sentence and added the last sentence.

§ 160A-325. Selection or approval of sites for certain sanitary landfills; solid waste defined.

  1. The governing board of a city shall consider alternative sites and socioeconomic and demographic data and shall hold a public hearing prior to selecting or approving a site for a new sanitary landfill that receives residential solid waste that is located within one mile of an existing sanitary landfill within the State. The distance between an existing and a proposed site shall be determined by measurement between the closest points on the outer boundary of each site. The definitions set out in G.S. 130A-290 apply to this subsection. As used in this subsection:
    1. "Approving a site" refers to prior approval of a site under G.S. 130A-294(a)(4).
    2. "Existing sanitary landfill" means a sanitary landfill that is in operation or that has been in operation within the five-year period immediately prior to the date on which an application for a permit is submitted.
    3. "New sanitary landfill" means a sanitary landfill that includes areas not within the legal description of an existing sanitary landfill as set out in the permit for the existing sanitary landfill.
    4. "Socioeconomic and demographic data" means the most recent socioeconomic and demographic data compiled by the United States Bureau of the Census and any additional socioeconomic and demographic data submitted at the public hearing.
  2. As used in this Part, "solid waste" means nonhazardous solid waste, that is, solid waste as defined in G.S. 130A-290 but not including hazardous waste.

History

(1991 (Reg. Sess., 1992), c. 1013, s. 3.)

Editor's Note. - Session Laws 1991 (Reg. Sess., 1992), c. 1013, which enacted this section, in s. 8 provides: "Any contract for solid waste collection or disposal entered into by any county, city, or town that would have been lawful if this act had been in effect at the time the contract was entered into is validated. The provisions of this act that limit a contract or franchise for the collection and disposal of solid waste to a period of not more than 30 years shall not be construed to invalidate any contract or franchise for a longer period up to 60 years that was entered into by any county, city, or town prior to the date this act is effective." The act became effective July 22, 1992.

Session Laws 1991 (Reg. Sess., 1992), c. 1013, s. 9 provides: "G.S. 153A-136(c), as enacted by Section 1 of this act, and G.S. 160A-325(a), as enacted by Section 3 of this act, shall not apply to the selection or approval of a site for a new sanitary landfill if, prior to the effective date of this act [July 22, 1992]:

"(1) The site was selected or approved by the board of commissioners of a county or the governing board of a city;

"(2) A public hearing on the selection or approval of the site has been held;

"(3) A long-term contract was approved by the Department of Environment, Health, and Natural Resources [now the Department of Environmental Quality] under Part 4 of Article 15 of Chapter 153A of the General Statutes; or

"(4) An application for a permit for a sanitary landfill to be located on the site has been submitted to the Department of Environment, Health and Natural Resources [now the Department of Environmental Quality]."

CASE NOTES

Exemption From Statute Prior to July 2, 1992. - The defendants were only required to comply with one of four conditions of Session Laws 1991 Reg. Sess., 1992, c. 1013, s. 9 in order to qualify for the exemption provided in this section; in this case, a showing that the site was selected and approved by Alderman was sufficient to comply with condition (1). Grassy Creek Neighborhood Alliance v. City of Winston-Salem, 142 N.C. App. 290, 542 S.E.2d 296 (2001).

Cited in County of Wake v. N.C. Dep't of Env't, 155 N.C. App. 225, 573 S.E.2d 572 (2002), cert. dismissed, 357 N.C. 62, 579 S.E.2d 387 (2003).


§ 160A-326. Limitations on rail transportation liability.

  1. As used in this section:
    1. "Claim" means a claim, action, suit, or request for damages, whether compensatory, punitive, or otherwise, made by any person or entity against:
      1. The City, a railroad, or an operating rights railroad; or
      2. An officer, director, trustee, employee, parent, subsidiary, or affiliated corporation as defined in G.S. 105-130.2, or agent of: the City, a railroad, or an operating rights railroad.
    2. "Operating rights railroad" means a railroad corporation or railroad company that, prior to January 1, 2001, was granted operating rights by a State-Owned Railroad Company or operated over the property of a State-Owned Railroad Company under a claim of right over or adjacent to facilities used by or on behalf of the City.
    3. "Passenger rail services" means the transportation of rail passengers by or on behalf of the City and all services performed by a railroad pursuant to a contract with the City in connection with the transportation of rail passengers, including, but not limited to, the operation of trains; the use of right-of-way, trackage, public or private roadway and rail crossings, equipment, or station areas or appurtenant facilities; the design, construction, reconstruction, operation, or maintenance of rail-related equipment, tracks, and any appurtenant facilities; or the provision of access rights over or adjacent to lines owned by the City or a railroad, or otherwise occupied by the City or a railroad, pursuant to charter grant, fee-simple deed, lease, easement, license, trackage rights, or other form of ownership or authorized use.
    4. "Railroad" means a railroad corporation or railroad company, including a State-Owned Railroad Company as defined in G.S. 124-11, that has entered into any contracts or operating agreements of any kind with the City concerning passenger rail services.
  2. Contracts Allocating Financial Responsibility Authorized. - The City may contract with any railroad to allocate financial responsibility for passenger rail services claims, including, but not limited to, the execution of indemnity agreements, notwithstanding any other statutory, common law, public policy, or other prohibition against same, and regardless of the nature of the claim or the conduct giving rise to such claim.
  3. Insurance Required. -
    1. If the City enters into any contract authorized by subsection (b) of this section, the contract shall require the City to secure and maintain, upon and after the commencement of the operation of trains by or on behalf of the City, a liability insurance policy covering the liability of the parties to the contract, a State-Owned Railroad Company as defined in G.S. 124-11 that owns or claims an interest in any real property subject to the contract, and any operating rights railroad for all claims for property damage, personal injury, bodily injury, and death arising out of or related to passenger rail services. The policy shall name the parties to the contract, a State-Owned Railroad Company as defined in G.S. 124-11 that owns or claims an interest in any real property subject to the contract, and any operating rights railroad as named insureds and shall have policy limits of not less than two hundred million dollars ($200,000,000) per single accident or incident, and may include a self-insured retention in an amount of not more than five million dollars ($5,000,000).
    2. If the City does not enter into any contract authorized by subsection (b) of this section, upon and after the commencement of the operation of trains by or on behalf of the City, the City shall secure and maintain a liability insurance policy, with policy limits and a self-insured retention consistent with subdivision (1) of this subsection, for all claims for property damage, personal injury, bodily injury, and death arising out of or related to passenger rail services.
  4. Liability Limit. - The aggregate liability of the City, the parties to the contract or contracts authorized by subsection (b) of this section, a State-Owned Railroad Company as defined in G.S. 124-11, and any operating rights railroad for all claims arising from a single accident or incident related to passenger rail services for property damage, personal injury, bodily injury, and death is limited to two hundred million dollars ($200,000,000) per single accident or incident or to any proceeds available under any insurance policy secured pursuant to subsection (c) of this section, whichever is greater.
  5. Effect on Other Laws. - This section shall not affect the damages that may be recovered under the Federal Employers' Liability Act, 45 U.S.C. § 51, et seq., (1908); or under Article 1 of Chapter 97 of the General Statutes.
  6. Applicability. - This section shall apply only to municipalities with a population of more than 500,000 persons, according to the latest decennial census, or to municipalities that have entered into a transit governance interlocal agreement with, among other local governments, a city with a population of more than 500,000 persons.

History

(2002-78, s. 3; 2012-79, s. 1.14(f).)

Editor's Note. - The definitions in subsection (a) were redesignated at the direction of the Revisor of Statutes to preserve alphabetical order.

Effect of Amendments. - Session Laws 2012-79, s. 1.14(f), effective June 26, 2012, substituted "G.S. 105-130.2" for "G.S. 105-130.6" in subdivision (a)(1)b.


§ 160A-327. Displacement of private solid waste collection services.

  1. A unit of local government shall not displace a private company that is providing collection services for municipal solid waste or recovered materials, or both, except as provided for in this section.
  2. Before a local government may displace a private company that is providing collection services for municipal solid waste or recovered materials, or both, the unit of local government shall publish notice of the first meeting where the proposed change in solid waste collection service will be discussed. Notice shall be published once a week for at least four consecutive weeks in at least one newspaper of general circulation in the area in which the unit of local government and the proposed displacement area are located. The first public notice shall be given no less than 30 days but no more than 60 days prior to the displacement issue being placed on the agenda for discussion or action at an official meeting of the governing body of the unit of local government. The notice shall specify the date and place of the meeting, the geographic location in which solid waste collection services are proposed to be changed, and the types of solid waste collection services that may be affected. In addition, the unit of local government shall send written notice by certified mail, return receipt requested, to all companies that have filed notice with the unit of local government clerk pursuant to the provisions of subsection (f) of this section. The unit of local government shall deposit notice in the U.S. mail at least 30 days prior to the displacement issues being placed on the agenda for discussion or action at an official meeting of the governing body of the unit of local government.
  3. Following the public notice required by subsection (b) of this section, but in no event later than six months after the date of the first meeting pursuant to subsection (b) of this section, the unit of local government may proceed to take formal action to displace a private company. The unit of local government or other public or private entity selected by the unit of local government may not commence the actual provision of these services for a period of 15 months from the date of the first publication of notice, unless the unit of local government provides compensation to the displaced private company as follows:
    1. Subject to subdivision (3) of this subsection, if the private company has provided collection services in the displacement area prior to announcement of the displacement action, the unit of local government shall provide compensation to the displaced private company in an amount equal to the total gross revenues for collection services provided in the displacement area for the six months prior to the first publication of notice required under subsection (b) of this section.
    2. Subject to subdivision (3) of this subsection, if the displaced private company has provided collection services in the displacement area for less than six months prior to the first publication of notice required under subsection (b) of this section, the unit of local government shall provide compensation to the displaced private company in an amount equal to the total gross revenues for the period of time that the private company provided such services in the displacement area.
    3. If the displaced private company purchased an existing operation of another private company providing such services, compensation shall be for six months based on the monthly average total gross revenues for three months the immediate preceding the first publication of notice required under subsection (b) of this section.
  4. If the local government elects to provide compensation pursuant to subsection (c) of this section, the amount due from the unit of local government to the displaced company shall be paid as follows: one-third of the compensation to be paid within 30 days of the displacement and the balance paid in six equal monthly installments during the next succeeding six months.
  5. If the unit of local government fails to change the provision of solid waste services as described in the notices required under subsection (b) of this section within six months of the date of the first meeting pursuant to subsection (b) of this section, the unit of local government shall not take action to displace without complying again with the provisions of subsection (b) of this section.
  6. Notice of the provision of solid waste collection service shall be filed with the unit of local government clerk of all cities and counties located in the private company's collection area or within five miles thereof.
  7. This section shall not apply when a private company is displaced as the result of an annexation under Article 4A of Chapter 160A of the General Statutes or an annexation by an act of the General Assembly. The provisions of G.S. 160A-37.3, 160-49.3, or 160A-324 shall apply.
  8. If a unit of local government intends to provide compensation under subsection (c) of this section to a private company that has given notice under subsection (f) of this section, the private company shall make available to the unit of local government not later than 30 days following a written request of the unit of local government, sent by certified mail, return receipt requested, all information in its possession or control, including operational, financial, and budgetary information necessary for the unit of local government to determine if the private company qualifies for compensation. The private company forfeits its rights under this section if it fails to make a good faith response within 30 days following receipt of the written request for information from the unit of local government provided that the unit of local government's written request so states by specific reference to this section.
  9. Nothing in this section shall affect the authority of a city or county to establish recycling service where recycling service is not currently being offered.
  10. As used in this section, the following terms mean:
    1. Collection. - The gathering of municipal solid waste, recovered materials, or recyclables from residential, commercial, industrial, governmental, or institutional customers and transporting it to a sanitary landfill or other disposal facility. Collection does not include transport from a transfer station or processing point to a disposal facility.
    2. Displacement. - Any formal action by a unit of local government that prohibits a private company from providing all or a portion of the collection services for municipal solid waste, recovered materials, or recyclables that the company is providing in the affected area at least 90 days prior to the date of the first publication of notice required by subsection (b) of this section. Displacement also means an action by a unit of local government to use an availability fee, nonoptional fee, or taxes to fund competing collection services for municipal solid waste, recovered materials, or recyclables that the private company is providing in the affected areas at least 90 days prior to the date of the first publication of notice required under subsection (b) of this section is given. Displacement does not include any of the following actions:
      1. Failure to renew a franchise agreement or contract with a private company.
      2. Taking action that results in a change in solid waste collection services because the private company's operations present an imminent and substantial threat to human health or safety or are causing a substantial public nuisance.
      3. Taking action that results in a change in solid waste collection services because the private company has materially breached its franchise agreement or the terms of a contract with the local government, or the company has notified the local government that it no longer intends to honor the terms of the franchise agreement or contract. Notice of breach must be delivered in writing, delivered by certified mail to the firm in question with 30 days to cure the violation of the contract.
      4. Terminating an existing contract or franchise in accordance with the provisions of the contract or franchise agreement.
      5. Providing temporary collection services under a declared state of emergency.
      6. Taking action that results in a change in solid waste collection services due to the existing providers' felony conviction of a violation in the State of federal or State law governing the solid waste collection or disposal.
      7. Contracting with a private company to continue its existing services or provide a different level of service at a negotiated price on terms agreeable to the parties.
    3. Municipal solid waste. - As defined in G.S. 130A-290(18a).
    4. Unit of local government. - A county, municipality, authority, or political subdivision that is authorized by law to provide for collection of solid waste or recovered materials, or both.

History

(2006-193, s. 4.)

§ 160A-328. Local government landfill liaison.

  1. A city that has planning jurisdiction over any portion of the site of a sanitary landfill may employ a local government landfill liaison. No person who is responsible for any aspect of the management or operation of the landfill may serve as a local government landfill liaison. A local government landfill liaison shall have a right to enter public or private lands on which the landfill facility is located at reasonable times to inspect the landfill operation in order to:
    1. Ensure that the facility meets all local requirements.
    2. Identify and notify the Department of suspected violations of applicable federal or State laws, regulations, or rules.
    3. Identify and notify the Department of potentially hazardous conditions at the facility.
  2. Entry pursuant to this section shall not constitute a trespass or taking of property.

History

(2007-550, s. 11(b).)

Editor's Note. - Session Laws 2007-550, s. 11(b), enacted this section as G.S. 160A-325. It has been renumbered as this section at the direction of the Revisor of Statutes.


§ 160A-329. Provision of municipal services to certain properties.

  1. A municipality shall provide municipal services as defined under subsection (b) of this section to any property if that property owner submitted a petition for voluntary annexation under Article 4A of this Chapter, and the municipal governing board voted on an annexation ordinance for that property but the annexation ordinance failed of adoption. This section applies if the property owner (i) submits to the governing board a notice exercising the provisions of this section within 60 days of this section becoming law and (ii) agrees in writing to all the requirements contained in any utility extension agreement that was presented to the governing board at the same meeting as the annexation that failed of adoption. The municipal governing board may not impose more burdensome requirements or commitments on the property owner that are inconsistent with the requirements and commitments that are contained in the utility extension agreement.
  2. For purposes of this section, prior to the effective date of the annexation of the property, the term "municipal services" only means water and sewer services, but only if the municipality has water and sewer capacity. For purposes of this section, prior to or after the effective date of annexation into a municipality, for any property subject to a declaration of covenants, conditions, and restrictions of a subdivision that permits an association to enter into agreement with utility providers prior to July 1, 2014, "municipal services" includes water service but not sewer service despite any language to the contrary in an executed and recorded utility extension agreement. For purposes of this section, prior to the effective date of annexation, the term "municipal services" specifically does not include any of the following services of the municipality: police protection, fire protection, solid waste services, or street maintenance services.
  3. Requirements and commitments contained in the utility extension agreement that was presented to the governing board at the same meeting as the annexation ordinance that failed of adoption shall continue as obligations of the agreement unless the city council relieves the property owner of the requirement or commitment. Those requirements and commitments include, but are not limited to, the committed elements of a development plan in a zoning map case approved by the county where the property is located.

History

(2013-386, s. 1; 2014-47, s. 2.)

Effect of Amendments. - Session Laws 2014-47, s. 2, effective June 30, 2014, in subsection (b), substituted "and" for "or" twice in the first sentence and added the second sentence.

§ 160A-330: Reserved for future codification purposes.

PART 2. ELECTRIC SERVICE IN URBAN AREAS.

§ 160A-331. Definitions.

Unless the context otherwise requires, the following words and phrases shall have the meanings indicated when used in this Part:

  1. "Assigned area" means any portion of an area annexed to or incorporated into a city which, on or before the effective date of annexation or incorporation, had been assigned by the North Carolina Utilities Commission to a specific electric supplier pursuant to G.S. 62-110.2.
  2. "Assigned supplier" means a person, firm, or corporation to which the North Carolina Utilities Commission had assigned a specific area for service as an electric supplier pursuant to G.S. 62-110.2, which area, in whole or in part, is subsequently annexed to or incorporated into a city.
  3. The "determination date" is
    1. April 20, 1965, with respect to areas within the corporate limits of any city as of April 20, 1965;
    2. The effective date of annexation with respect to areas annexed to any city after April 20, 1965;
    3. The date a primary supplier comes into being with respect to any city first incorporated after April 20, 1965.
  4. "Line" means any conductor located inside the city, or any conductor within 300 feet of areas annexed by the city that is a primary supplier, for distributing or transmitting electricity, except as follows:
    1. For overhead construction, a conductor from the pole nearest the premises of a consumer to such premises, or a conductor from a line tap to such premises.
    2. For underground construction, a conductor from the transformer (or the junction point, if there be one) nearest the premises of a consumer to such premises.
  5. "Premises" means the building, structure, or facility to which electricity is being or is to be furnished. Two or more buildings, structures, or facilities that are located on one tract or contiguous tracts of land and are used by one electric consumer for commercial, industrial, institutional, or governmental purposes, shall together constitute one "premises," except that any such building, structure, or facility shall not, together with any other building, structure, or facility, constitute one "premises" if the electric service to it is separately metered and the charges for such service are calculated independently of charges for service to any other building, structure, or facility.
  6. "Primary supplier" means a city that owns and maintains its own electric system, or a person, firm, or corporation that furnishes electric service within a city pursuant to a franchise granted by, or contract with, a city, or that, having furnished service pursuant to a franchise or contract, is continuing to furnish service within a city after the expiration of the franchise or contract.
  7. "Secondary supplier" means a person, firm, or corporation that is not a primary supplier, but that furnishes electricity at retail to one or more consumers other than itself within the limits of a city, or that has a conductor located within 300 feet of an area annexed by a city that is a primary supplier. A primary supplier that furnishes electric service within a city pursuant to a franchise or contract that limits or restricts the classes of consumers or types of electric service permitted to such supplier shall, in and with respect to any area annexed by the city after April 20, 1965, be a primary supplier for such classes of consumers or types of service, and if it furnishes other electric service in the annexed area on the effective date of annexation, shall be a secondary supplier, in and with respect to such annexed area, for all other electric service. A primary supplier that continues to furnish electric service after the expiration of a franchise or contract that limited or restricted such primary supplier with respect to classes of consumers or types of electric service shall, in and with respect to any area annexed by the city after April 20, 1965, be a secondary supplier for all electric service if it is furnishing electric service in the annexed area on the effective date of annexation.

History

(1965, c. 287, s. 1; 1971, c. 698, s. 1; 1973, c. 426, s. 52; 1997-346, s. 1; 1999-111, s. 1; 2003-24, s. 1; 2005-150, s. 2.)

Editor's Note. - Session Laws 1997-346, s. 6, as amended by Session Laws 1999-111, s. 1, which added subdivision (1), defining "Assigned area", and subdivision (1a), defining "Assigned supplier", provides in part: "This act expires on December 31, 2003." Session Laws 2003-24, s. 1, repealed the expiration provision.

Effect of Amendments. - Session Laws 2005-150, s. 2, effective July 5, 2005, in subdivision (2), in the introductory paragraph, inserted "or any conductor within 300 feet of areas annexed by the city that is a primary supplier," and substituted "except as follows:" for "other than"; in subdivision (5), in the first sentence, inserted "that is not a primary supplier, but," and substituted "city, or that has a conductor located within 300 feet of an area annexed by a city that is" for "city but is not"; and made a minor related stylistic and punctuation change.

Legal Periodicals. - For note, "Utilities - Extension of Electric Service: The Municipalities' Power Play," see 63 N.C.L. Rev. 1095 (1985).

CASE NOTES

Legislative Intent. - By defining and restricting the rights of competing electric companies, the Legislature, in the 1965 Electric Act, limited free competition among private electric suppliers in rural areas. It is for the Legislature, not for the court to determine whether legislation other than G.S. 160A-312 is needed to curtail the competitive rights of municipal electric suppliers in rural areas. Duke Power Co. v. City of High Point, 69 N.C. App. 378, 317 S.E.2d 701, cert. denied, 312 N.C. 82, 321 S.E.2d 895 (1984).

The Electric Act of 1965 was originally intended to prevent or reduce litigation regarding electric service rights between competing suppliers. City of Concord v. Duke Power Co., 346 N.C. 211, 485 S.E.2d 278 (1997).

Section 62-110.2 was passed together with this Part, as part of the same act. Domestic Elec. Serv., Inc. v. City of Rocky Mount, 20 N.C. App. 347, 201 S.E.2d 508, aff'd on other grounds, 285 N.C. 135, 203 S.E.2d 838 (1974).

Purpose of § 62-110.2 and This Part. - Both G.S. 62-110.2, applying to rural areas, and this Part, applying to municipalities, sought to eliminate the wasteful duplication of power lines by assigning territories to specific suppliers of electricity. Domestic Elec. Serv., Inc. v. City of Rocky Mount, 20 N.C. App. 347, 201 S.E.2d 508, aff'd on other grounds, 285 N.C. 135, 203 S.E.2d 838 (1974).

Considered together, G.S. 62-110.2 and this Part cover the entire State, and reflect the interests of municipalities, utility companies and cooperatives. They form a unified plan for eliminating duplication of electric facilities by assigning territories to particular suppliers. Domestic Elec. Serv., Inc. v. City of Rocky Mount, 20 N.C. App. 347, 201 S.E.2d 508, aff'd on other grounds, 285 N.C. 135, 203 S.E.2d 838 (1974).

Common-law doctrine of abandonment does not apply to the 1965 Electric Act. Duke Power Co. v. City of Morganton, 90 N.C. App. 755, 370 S.E.2d 54, cert. denied, 323 N.C. 364, 373 S.E.2d 544 (1988).

Rights of Certain Nonmunicipal Suppliers Recognized. - By the enactment of this Part, the General Assembly took a considerable step in recognizing rights of nonmunicipal suppliers of electric power in cities operating their own systems. Duke Power Co. v. City of High Point, 22 N.C. App. 91, 205 S.E.2d 774, cert. denied, 285 N.C. 661, 207 S.E.2d 752 (1974).

The Territorial Assignment Act of 1965, as codified at G.S. 62-110.2 and G.S. 160A-331 to 160A-338, represents an attempt to eliminate the uneconomic duplication of transmission and distribution systems bred of unbridled competition between public utilities, electric membership corporations and municipalities by designating the various competitors' rights. Morgan v. Town of Hertford, 70 N.C. App. 725, 321 S.E.2d 170 (1984).

Municipality as "Secondary Supplier". - A town, a municipal corporation, is a "person" or "corporation" within the meaning of subdivision (5) of this section and therefore qualifies as a "secondary supplier." Morgan v. Town of Hertford, 70 N.C. App. 725, 321 S.E.2d 170 (1984).

Applicability of Provisions to Municipality. - A municipality operating an electric service within the corporate limits of another municipality is subject to the provisions of G.S. 160A-331 to 160A-338. Morgan v. Town of Hertford, 70 N.C. App. 725, 321 S.E.2d 170 (1984).

The clause "subject to part 2 of this article," as used in G.S. 160A-312, refers to those situations where a city extending its electric lines outside its corporate limits necessarily begins construction within its corporate limits. When a city extending service outside its corporate limits constructs lines beginning at some point within its corporate limits, then pursuant to G.S. 160A-312 and 160A-332, such lines as are within the city limits may not infringe on the guaranteed corridor rights of a secondary supplier. Duke Power Co. v. City of High Point, 69 N.C. App. 378, 317 S.E.2d 701, cert. denied, 312 N.C. 82, 321 S.E.2d 895 (1984).

The furnishing of electric service to an area subsequently annexed must be carried out pursuant to the 1965 Electric Act (G.S. 160A-331 to 160A-338 and 62-110.1 to 62-110.2). State ex rel. Utils. Comm'n v. VEPCO, 310 N.C. 302, 311 S.E.2d 586 (1984).

Operation of Electric System Outside Municipality. - The 1965 Electric Act, appearing in G.S. 160A-331 through 160A-338 and G.S. 62-110.2, does not empower or authorize municipalities to operate electric systems outside corporate limits, nor does it restrict such service. Insofar as the General Statutes are concerned, the sole authority for, and the only restriction upon municipalities furnishing electric service outside corporate limits is found in G.S. 160A-312. Lumbee River Elec. Membership Corp. v. City of Fayetteville, 309 N.C. 726, 309 S.E.2d 209 (1983).

Nothing in this Part empowers or restricts municipalities in the operation of their electric systems outside their corporate limits. State ex rel. Utils. Comm'n v. VEPCO, 310 N.C. 302, 311 S.E.2d 586 (1984).

For analysis of the dichotomy between a city's rights to extend electric service outside city limits under G.S. 160A-312 and its rights to extend such service within city limits under G.S. 160A-331 to 160A-338, see Duke Power Co. v. City of High Point, 69 N.C. App. 378, 317 S.E.2d 701, cert. denied, 312 N.C. 82, 321 S.E.2d 895 (1984).

Section 160A-312 does not affect a city's right to furnish electric service to a newly annexed territory within its corporate limits, such right being determined solely by the provisions of G.S. 160A-331 to 160A-338. Duke Power Co. v. City of High Point, 69 N.C. App. 378, 317 S.E.2d 701, cert. denied, 312 N.C. 82, 321 S.E.2d 895 (1984).

In situations in which multiple annexations have occurred, the determination date is the annexation date in which a primary and secondary supplier competing for the right to service a premises initially requiring electric service first existed. City of Concord v. Duke Power Co., 346 N.C. 211, 485 S.E.2d 278 (1997).

The definition of premises is clearly and unambiguously defined; both buildings constructed by the hospital on its contiguous tracts of land constituted one premises that was being served by the city. City of New Bern v. Carteret-Craven Elec. Mbrshp. Corp., 145 N.C. App. 140, 548 S.E.2d 845 (2001), cert. granted, 354 N.C. 215, 553 S.E.2d 909 (2001).

Where a customer constructed a new building on an adjacent lot, that was separately metered, and then demolished the old building, the new building was considered a new premises, and the customer was entitled to choose between secondary electric service providers under Electric Act, under the specific facts of the instant case. City of New Bern v. Carteret-Craven Elec. Mbrshp. Corp., 356 N.C. 123, 567 S.E.2d 131 (2002).

Applied in State ex rel. Utils. Comm'n v. Hunt Mfg. Co., 16 N.C. App. 335, 192 S.E.2d 16 (1972); State ex rel. Utils. Comm'n v. VEPCO, 62 N.C. App. 262, 302 S.E.2d 642 (1983); City of Concord v. Duke Power Co., 122 N.C. App. 248, 468 S.E.2d 615 (1996).


§ 160A-331.1: Repealed by Session Laws 2007-419, s. 3, effective August 21, 2007.

Editor's Note. - Session Laws 2007-419, s. 3, provides in part: "Agreements previously entered into pursuant to G.S. 117-10.3 and G.S. 160A-331.1 shall not be affected by this repeal."


§ 160A-331.2. Agreements of electric suppliers.

  1. The General Assembly finds and determines that, in order to avoid the unnecessary duplication of electric facilities and to facilitate the settlement of disputes between cities that are primary suppliers and other electric suppliers, it is desirable for the State to authorize electric suppliers to enter into agreements pursuant to which the parties to the agreements allocate to each other the right to provide electric service to premises each would not have the right to serve under this Article but for the agreement, provided that no agreement between a city that is a primary supplier and another electric supplier shall be enforceable by or against an electric supplier that is subject to the territorial assignment jurisdiction of the North Carolina Utilities Commission until the agreement has been approved by the Commission. The Commission shall approve an agreement entered into pursuant to this section unless it finds that such agreement is not in the public interest. Such agreements may allocate the right to serve premises by reference to specific premises, geographical boundaries, or amounts of unspecified load to be served, but no agreement shall affect in any way the rights of other electric suppliers who are not parties to the relevant agreement. The provisions of this section apply to agreements relating to electric service inside and outside the corporate limits of a city.
  2. Repealed by Session Laws 2007-419, s. 1, effective August 21, 2007.
  3. To the extent negotiations undertaken pursuant to subsection (b) of this section, as enacted by S.L. 2005-150, have not resulted in an agreement between a negotiating electric membership corporation and a negotiating city by May 31, 2007, jurisdiction shall immediately lie in the North Carolina Utilities Commission to resolve all issues related to those negotiations. Either party to the negotiations may petition the Commission to exercise the jurisdiction conferred in this subsection upon the filing of a petition and the payment of a filing fee of five hundred dollars ($500.00). In reaching its decision, the Commission shall include consideration of the public convenience and necessity. The Commission shall not consider rate differentials between the involved city and the involved electric membership corporation.
  4. Notwithstanding an order of the Commission issued pursuant to subsection (c) of this section:
    1. Any electric membership corporation or city may furnish electric service to any consumer who desires service from that electric membership corporation or city at any premises being served by another electric membership corporation or city, or at premises which another electric membership corporation or city has the right to serve pursuant to subsection (c) of this section, upon agreement of the affected electric membership corporation or city, subject to approval by the Commission.
    2. The Commission shall have the authority and jurisdiction, after notice to all affected electric membership corporations and cities and after a hearing, if a hearing is requested by any affected electric membership corporation or city, or any other interested party, to order any electric membership corporation or city which may reasonably do so to furnish electric service to any consumer who desires service from that electric membership corporation or city at any premises being served by another electric membership corporation or city pursuant to subsection (c) of this section or subdivision (1) of this subsection, or which another electric membership corporation or city has the right to serve pursuant to subsection (c) of this section or subdivision (1) of this subsection, and to order the other electric membership corporation or city to cease and desist from furnishing electric service to such premises, upon finding that service to the consumer by the electric membership corporation or city which is then furnishing service, or which has the right to furnish service to those premises, is or will be inadequate or undependable, or that the rates, conditions of service, or service regulations, applied to such consumer, are unreasonably discriminatory.
  5. Assignments or reassignments made or approved by the Commission pursuant to subsection (c) or (d) of this section shall be deemed to be service area agreements approved pursuant to subsection (a) of this section.

History

(2005-150, s. 3; 2007-419, s. 1.)

Editor's Note. - Session Laws 2007-419, s. 4, provides in part: "Any disputes submitted to the Public Staff of the North Carolina Utilities Commission pursuant to G.S. 7A-38.3C(i) [repealed] are transferred to the North Carolina Utilities Commission to be considered by the Commission pursuant to G.S. 160A-331.2(c), as enacted by this act, and the Commission shall exercise its jurisdiction upon payment of the filing fee required by that subsection by the petitioner."

Effect of Amendments. - Session Laws 2007-419, s. 1, effective August 21, 2007, deleted subsection (b) and added subsections (c) through (e).

§ 160A-332. Electric service within city limits.

  1. The suppliers of electric service inside the corporate limits of any city in which a secondary supplier was furnishing electric service on the determination date, as defined in G.S. 160A-331(1b), shall have rights and be subject to restrictions as follows:
    1. The secondary supplier shall have the right to serve all premises being served by it, or to which any of its facilities are attached, on the determination date.
    2. The secondary supplier shall have the right, subject to subdivision (3) of this section, to serve all premises initially requiring electric service after the determination date which are located wholly within 300 feet of its lines and located wholly more than 300 feet from the lines of the primary supplier, as such suppliers' lines existed on the determination date.
    3. Any premises initially requiring electric service after the determination date which are located wholly within 300 feet of a secondary supplier's lines and wholly within 300 feet of another secondary supplier's lines, but wholly more than 300 feet from the primary supplier's lines, as the lines of all suppliers existed on the determination date, may be served by the secondary supplier which the consumer chooses, and no other supplier shall thereafter furnish electric service to such premises, except with the written consent of the supplier then serving the premises.
    4. A primary supplier shall not furnish electric service to any premises which a secondary supplier has the right to serve as set forth in subdivisions (1), (2), and (3) of this section, except with the written consent of the secondary supplier.
    5. Any premises initially requiring electric service after the determination date which are located wholly or partially within 300 feet of the primary supplier's lines and are located wholly or partially within 300 feet of the secondary supplier's lines, as such suppliers' lines existed on the determination date, may be served by either the secondary supplier or the primary supplier, whichever the consumer chooses, and no other supplier shall thereafter furnish service to such premises, except with the written consent of the supplier then serving the premises.
    6. Any premises initially requiring electric service after the determination date, which are located only partially within 300 feet of the secondary supplier's lines and are located wholly more than 300 feet from the primary supplier's lines, as such supplier's lines existed on the determination date, may be served either by the secondary supplier or the primary supplier, whichever the consumer chooses, and no other supplier shall thereafter furnish service to such premises, except with the written consent of the supplier then serving the premises.
    7. Notwithstanding any other provision of law, a secondary supplier, upon obtaining the prior written consent of the city, shall be the exclusive provider of electric service within (i) any assigned area for which that secondary supplier had been assigned supplier prior to the determination date; or (ii) any area previously unassigned by the North Carolina Utilities Commission pursuant to G.S. 62-110.2. However, any rights of other electric suppliers existing under G.S. 62-110.2 prior to the determination date to provide service shall continue to exist without impairment in the areas described in (i) and (ii) above.
    8. A primary supplier or secondary supplier that, after the determination date, offers to serve any premises initially requiring electric service for which a consumer has a right to choose suppliers under subsections (5) or (6) of this section, without providing the consumer written notice that the consumer may be entitled to choose another electric supplier for the premises, shall not have the right to serve those premises.
    9. Except as provided in subdivisions (1), (2), (3), (5), (6), and (6a) of this section, a secondary supplier shall not furnish electric service within the corporate limits of any city unless it first obtains the written consent of the city and the primary supplier.
  2. In any city that is first incorporated after April 20, 1965, in which, on the effective date of the incorporation, there is more than one supplier of electric service, all suppliers of electric service therein shall continue to have the rights and be subject to the restrictions in effect before the city was incorporated until there is a primary supplier within the city.
  3. It shall be unlawful for a primary supplier or secondary supplier to serve premises within a city that the supplier does not have the right to serve under the provisions of this Article. Upon receiving written notice from another supplier of electric service that has authority to lawfully provide service to the premises in dispute that the provision of service by the current supplier is unlawful, the primary supplier or secondary supplier that is providing electric service shall be obligated to discontinue service and remove all of its facilities used in the provision of the unlawful service within 30 days after substitute electric service can be provided by an electric supplier with authority to lawfully provide service to the premises, unless the supplier currently providing service has a good faith basis for believing it has authority to continue rendering such service. If the primary or secondary supplier is determined to be providing electric services unlawfully, and is found to have unreasonably failed to fulfill its obligation to discontinue service as required above, the supplier of electric service that has authority to lawfully provide service to the premises may bring an action to compel performance of those obligations, and may recover in that action its costs of enforcing this subsection, including its reasonable attorneys' fees.

History

(1965, c. 287, s. 1; 1971, c. 698, s. 1; 1997-346, s. 2; 1999-111, s. 1; 2003-24, s. 1; 2005-150, ss. 4, 5; 2017-102, s. 30.)

Editor's Note. - Session Laws 1997-346, s. 6, as amended by Session Laws 1999-111, s. 1, which added subdivision (a)(6a), making certain secondary suppliers exclusive, provides in part: "This act expires on December 31, 2003." Session Laws 2003-24, s. 1, repealed the expiration provision.

Effect of Amendments. - Session Laws 2005-150, ss. 4 and 5, effective July 5, 2005, added subdivision (a)(6b) and subsection (c).

Session Laws 2017-102, s. 30, effective July 12, 2017, substituted "as defined in G.S. 160A-331(1b)" for "(as defined in G.S. 160A-331(1))" in the introductory language of subsection (a).

Legal Periodicals. - For note, "Utilities - Extension of Electric Service: The Municipalities' Power Play," see 63 N.C.L. Rev. 1095 (1985).

CASE NOTES

Legislative Intent. - By defining and restricting the rights of competing electric companies, the Legislature in the 1965 Electric Act, limited free competition among private electric suppliers in rural areas. It is for the Legislature, not for the court to determine whether legislation other than G.S. 160A-312 is needed to curtail the competitive rights of municipal electric suppliers in rural areas. Duke Power Co. v. City of High Point, 69 N.C. App. 378, 317 S.E.2d 701, cert. denied, 312 N.C. 82, 321 S.E.2d 895 (1984).

The Electric Act of 1965 was originally intended to prevent or reduce litigation regarding electric service rights between competing suppliers. City of Concord v. Duke Power Co., 346 N.C. 211, 485 S.E.2d 278 (1997).

Common-law doctrine of abandonment does not apply to the 1965 Electric Act. Duke Power Co. v. City of Morganton, 90 N.C. App. 755, 370 S.E.2d 54, cert. denied, 323 N.C. 364, 373 S.E.2d 544 (1988).

In situations in which multiple annexations have occurred, the determination date is the annexation date in which a primary and secondary supplier competing for the right to service a premises initially requiring electric service first existed. City of Concord v. Duke Power Co., 346 N.C. 211, 485 S.E.2d 278 (1997).

Agreement Failed to Meet Requirements of the Statute. - North Carolina Utilities Commission did not err in denying approval of an agreement between a town and a utility company that allocated rights to serve certain areas of the town because the agreement did not meet the requirements of the statute; the parties were not exchanging the right to provide electric service to premises each would not have the right to serve but for the agreement because they already had the right to serve those premises. In re Town of Smithfield, 230 N.C. App. 252, 749 S.E.2d 293 (2013).

Commission Correctly Interpreted Statute. - North Carolina Utilities Commission did not err in denying approval of an agreement between a town and a utility company that allocated rights to serve certain areas of the town because both parties had rights to serve the premises they purported to exchange; the Commission correctly interpreted subsection (a) to only authorize those agreements wherein the parties exchanged rights to serve premises that each would not have the right to serve but for the agreement. In re Town of Smithfield, 230 N.C. App. 252, 749 S.E.2d 293 (2013).

Applied in State ex rel. Utils. Comm'n v. Hunt Mfg. Co., 16 N.C. App. 335, 192 S.E.2d 16 (1972); Morgan v. Town of Hertford, 70 N.C. App. 725, 321 S.E.2d 170 (1984); City of Concord v. Duke Power Co., 122 N.C. App. 248, 468 S.E.2d 615 (1996).


§ 160A-333. Temporary electric service.

No electric supplier shall furnish temporary electric service for the construction of premises which it would not have the right to serve under this Part if such premises were already constructed. The construction of lines for, and the furnishing of, temporary electric service for the construction of premises which any other electric supplier, if chosen by the consumer, would have the right to serve if such premises were already constructed, shall not impair the right of such other electric supplier to furnish service to such premises after the construction thereof, if then chosen by the consumer; nor, unless the consumer chooses to have such premises served by the supplier that furnished the temporary service, shall the furnishing of such temporary service or the construction of a line therefor impair the right of any other electric supplier to furnish service to any other premises which, without regard to the construction of such temporary service line, it has the right to serve.

History

(1965, c. 287, s. 1; 1971, c. 698, s. 1; 1973, c. 426, s. 53.)

§ 160A-334. Authority and jurisdiction of Utilities Commission.

Notwithstanding G.S. 160A-332 and 160A-333, if the North Carolina Utilities Commission finds that service being furnished to or to be furnished to the consumer by a secondary supplier is or will be inadequate or undependable, or that rates, conditions of service or service regulations, applied to such consumer, are unreasonably discriminatory, the Commission shall have the authority and jurisdiction, after notice to each affected electric supplier, and after hearing, if a hearing is requested by an interested party, to:

  1. Order a primary supplier that is subject to the jurisdiction of the Commission to furnish electric service to any consumer who desires service from the primary supplier at any premises served by a secondary supplier, or at premises which a secondary supplier has the right to serve pursuant to other sections of this Part, and to order such secondary supplier to cease and desist from furnishing electric service to such premises, or
  2. Order any secondary supplier to cease and desist from furnishing electric service to any premises being served by it or to any premises which it has the right to serve pursuant to other sections of this Part, if the consumer desires service from a primary supplier that is not subject to the jurisdiction of the Commission and which is willing to furnish service to such premises.

History

(1965, c. 287, s. 1; 1971, c. 698, s. 1; 1973, c. 426, s. 54.)

CASE NOTES

Applied in State ex rel. Utils. Comm'n v. Hunt Mfg. Co., 16 N.C. App. 335, 192 S.E.2d 16 (1972); Morgan v. Town of Hertford, 70 N.C. App. 725, 321 S.E.2d 170 (1984).


§ 160A-335. Discontinuance of service and transfer of facilities by secondary supplier.

A secondary supplier may voluntarily discontinue its service to any premises and remove any of its electric facilities located inside the corporate limits of a city or sell and transfer such facilities to a primary supplier in such city, subject to approval by the North Carolina Utilities Commission, if the Commission determines that the public interest will not thereby be adversely affected.

History

(1965, c. 287, s. 1; 1971, c. 698, s. 1.)

§ 160A-336. Electric service for city facilities.

No provisions of this Part shall prevent a city that is a primary supplier from furnishing its own electric service for city facilities, or prevent any other primary supplier from furnishing electric street lighting service to a city inside its corporate limits.

History

(1965, c. 287, s. 1; 1971, c. 698, s. 1.)

§ 160A-337. Effect of Part on rights and duties of primary supplier.

Except for the rights granted to and restrictions upon primary suppliers contained in the provisions of this Part, nothing in this Part shall diminish, enlarge, alter, or affect in any way the rights and duties of a primary supplier to furnish electric service to premises within the corporate limits of a city.

History

(1965, c. 287, s. 1; 1971, c. 698, s. 1.)

§ 160A-338. Electric suppliers subject to police power.

No provisions of this Part shall restrict the exercise of the police power of a city over the erection and maintenance of poles, wires, and other facilities of electric suppliers in streets, alleys, and other public ways.

History

(1965, c. 287, s. 1; 1971, c. 698, s. 1.)

Legal Periodicals. - For note, "Utilities - Extension of Electric Service: The Municipalities' Power Play," see 63 N.C.L. Rev. 1095 (1985).

CASE NOTES

Cited in City of Concord v. Duke Power Co., 346 N.C. 211, 485 S.E.2d 278 (1997).


§ 160A-339: Reserved for future codification purposes.

ARTICLE 16A. Provision of Communications Service by Cities.

Sec.

§ 160A-340. Definitions.

The following definitions apply in this Article:

  1. City-owned communications service provider. - A city that provides communications service using a communications network, whether directly, indirectly, or through an interlocal agreement or a joint agency.
  2. Communications network. - A wired or wireless network for the provision of communications service.
  3. Communications service. - The provision of cable, video programming, telecommunications, broadband, or high-speed Internet access service to the public, or any sector of the public, for a fee, regardless of the technology used to deliver the service. The terms "cable service," "telecommunications service," and "video programming service" have the same meanings as in G.S. 105-164.3. The following is not considered the provision of communications service:
    1. The sharing of data or voice between governmental entities for internal governmental purposes.
    2. The remote reading or polling of data from utility or parking meters, or the provisioning of energy demand reduction or smart grid services for an electric, water, or sewer system.
    3. The provision of free services to the public or a subset thereof.
  4. High-speed Internet access service. - Internet access service with transmission speeds that are equal to or greater than the requirements for basic broadband tier 1 service as defined by the Federal Communications Commission for broadband data gathering and reporting.
  5. Interlocal agreement. - An agreement between units of local government as authorized by Part 1 of Article 20 of Chapter 160A of the General Statutes.
  6. Joint agency. - A joint agency created under Part 1 of Article 20 of Chapter 160A of the General Statutes.

History

(2011-84, s. 1(a).)

Cross References. - As to local planning and development regulation, see G.S. 160D-101 et seq.

Editor's Note. - Session Laws 2011-84, s. 6, provides: "Any city that is designated as a public utility under Chapter 62 of the General Statutes when this act becomes law [May 21, 2011] shall not be subject to the provisions of this act with respect to any of its operations that are authorized by that Chapter."

Session Laws 2011-84, s. 7, is a severability clause.

Session Laws 2011-84, s. 8, provides: "Except as otherwise provided, this act is effective when it becomes law [May 21, 2011] and applies to the provision of communications service by a city or joint agency under Part 1 of Article 20 of Chapter 160A of the General Statutes on and after that date."


§ 160A-340.1. City-owned communications service provider requirements.

  1. A city-owned communications service provider shall meet all of the following requirements:
    1. Comply in its provision of communications service with all local, State, and federal laws, regulations, or other requirements applicable to the provision of the communications service if provided by a private communications service provider.
    2. In accordance with the provisions of Chapter 159 of the General Statutes, the Local Government Finance Act, establish one or more separate enterprise funds for the provision of communications service, use the enterprise funds to separately account for revenues, expenses, property, and source of investment dollars associated with the provision of communications service, and prepare and publish an independent annual report and audit in accordance with generally accepted accounting principles that reflect the fully allocated cost of providing the communications service, including all direct and indirect costs. An annual independent audit conducted under G.S. 159-34 and submitted to the Local Government Commission satisfies the audit requirement of this subdivision.
    3. Limit the provision of communications service to within the corporate limits of the city providing the communications service.
    4. Shall not, directly or indirectly, under the powers of a city, exercise power or authority in any area, including zoning or land-use regulation, or exercise power to withhold or delay the provision of monopoly utility service, to require any person, including residents of a particular development, to use or subscribe to any communications service provided by the city-owned communications service provider.
    5. Shall provide nondiscriminatory access to private communications service providers on a first-come, first-served basis to rights-of-way, poles, or conduits owned, leased, or operated by the city unless the facilities have insufficient capacity for the access and additional capacity cannot reasonably be added to the facilities. For purposes of this subdivision, the term "nondiscriminatory access" means that, at a minimum, access shall be granted on the same terms and conditions as that given to a city-owned communications service provider.
    6. Shall not air advertisements or other promotions for the city-owned communications service on a public, educational, or governmental access channel if the city requires another communications service provider to carry the channel. The city shall not use city resources that are not allocated for cost accounting purposes to the city-owned communications service to promote city-owned communications service in comparison to private services or, directly or indirectly, require city employees, officers, or contractors to purchase city services.
    7. Shall not subsidize the provision of communications service with funds from any other noncommunications service, operation, or other revenue source, including any funds or revenue generated from electric, gas, water, sewer, or garbage services.
    8. Shall not price any communications service below the cost of providing the service, including any direct or indirect subsidies received by the city-owned communications service provider and allocation of costs associated with any shared use of buildings, equipment, vehicles, and personnel with other city departments. The city shall, in calculating the costs of providing the communications service, impute (i) the cost of the capital component that is equivalent to the cost of capital available to private communications service providers in the same locality and (ii) an amount equal to all taxes, including property taxes, licenses, fees, and other assessments that would apply to a private communications service provider, including federal, State, and local taxes; rights-of-way, franchise, consent, or administrative fees; and pole attachment fees. In calculating the costs of the service the city may amortize the capital assets of the communications system over the useful life of the assets in accordance with generally accepted principles of governmental accounting.
    9. The city shall annually remit to the general fund of the city an amount equivalent to all taxes or fees a private communications service provider would be required to pay the city or county in which the city is located, including any applicable tax refunds received by the city-owned communications service provider because of its government status and a sum equal to the amount of property tax that would have been due if the city-owned communications service provider were a private communications service provider.
  2. A city-owned communications service provider shall not be required to obtain voter approval under G.S. 160A-321 prior to the sale or discontinuance of the city's communications network.

History

(2011-84, s. 1(a).)

Editor's Note. - Session Laws 2011-84, s. 8, provides: "Except as otherwise provided, this act is effective when it becomes law [May 21, 2011] and applies to the provision of communications service by a city or joint agency under Part 1 of Article 20 of Chapter 160A of the General Statutes on and after that date."


§ 160A-340.2. Exemptions.

  1. The provisions of G.S. 160A-340.1, 160A-340.4, 160A-340.5, and 160A-340.6 do not apply to the purchase, lease, construction, or operation of facilities by a city to provide communications service within the city's corporate limits for the city's internal governmental purposes, including the sharing of data or voice between governmental entities for internal governmental purposes, or within the corporate limits of another unit of local government that is a party with the city to an interlocal agreement under Part 1 of Article 20 of Chapter 160A of the General Statutes for the provision of internal government services.
  2. The provisions of G.S. 160A-340.1, 160A-340.4, and 160A-340.5 do not apply to the provision of communications service in an unserved area. A city seeking to provide communications service in an unserved area shall petition the North Carolina Utilities Commission for a determination that an area is unserved. The petition shall identify with specificity the geographic area for which the designation is sought. Any private communications service provider, or any other interested party, may, within a time established by order of the Commission, which time shall be no fewer than 30 days, file with the Commission an objection to the designation on the grounds that one or more areas designated in the petition is not an unserved area or that the city is not otherwise eligible to provide the service. For purposes of this subsection, the term "unserved area" means a census block, as designated by the most recent census of the U.S. Census Bureau, in which at least fifty percent (50%) of households either have no access to high-speed Internet service or have access to high-speed Internet service only from a satellite provider. A city may petition the Commission to serve multiple contiguous unserved areas in the same proceeding.
  3. The provisions of G.S. 160A-340.1, 160A-340.3, 160A-340.4, 160A-340.5, and 160A-340.6 do not apply to a city or joint agency providing communications service as of January 1, 2011, provided the city or joint agency limits the provision of communications service to any one or more of the following:
    1. Persons within the corporate limits of the city providing the communications service. For the purposes of this subsection, corporate limits shall mean the corporate limits of the city as of April 1, 2011, or as expanded through annexation.
    2. Existing customers of the communications service as of April 1, 2011. Service to a customer outside the service area of the city or joint agency who is also a public entity must comply with the open bidding procedures of G.S. 143-129.8 upon the expiration or termination of the existing service contract.
    3. The following service areas:
      1. For the joint agency operated by the cities of Davidson and Mooresville, the service area is the combined areas of the city of Cornelius; the town of Troutman; the town of Huntersville; the unincorporated areas of Mecklenburg County north of a line beginning at Highway 16 along the west boundary of the county, extending eastward along Highway 16, continuing east along Interstate 485, and continuing eastward to the eastern boundary of the county along Eastfield Road; and the unincorporated areas of Iredell County south of Interstate 40, excluding Statesville and the extraterritorial jurisdiction of Statesville.
      2. For the city of Salisbury, the service area is the municipalities of Salisbury, Spencer, East Spencer, Granite Quarry, Rockwell, Faith, Cleveland, China Grove, Landis and the corridors between those cities. The service area also includes the economic development sites, public safety facilities, governmental facilities, and educational schools and colleges located outside the municipalities and the corridors between the municipalities and these sites, facilities, schools, and colleges. The corridors between Salisbury and these municipalities and these sites, facilities, schools, and colleges includes only the area necessary to provide service to these municipalities and these sites, facilities, schools, and colleges and shall not be wider than 300 feet. The elected bodies of Spencer, East Spencer, Granite Quarry, Rockwell, Faith, Cleveland, China Grove, and Landis shall vote to approve the service extension into each respective municipality before Salisbury can provide service to that municipality. The Rowan County Board of County Commissioners shall vote to approve service extension to any governmental economic development site, governmental facility, school, or college owned by Rowan County. The Rowan Salisbury School Board shall also vote to approve service extension to schools.
      3. For the city of Wilson, the service area is the county limits of Wilson County, including the incorporated areas within the County. Notwithstanding any other provision of this Article, the city of Wilson may continue the provision of communication services to persons and businesses in the temporary extension areas under the condition that the provision of communication services in such areas is terminated by a date which is 30 days after the date retail service is first available in the area from a competitive provider of communications service that will provide Fiber to the Premises (FTTP) service. For purposes of this subdivision, "temporary extension areas" shall mean (i) the corporate limits of the Town of Pinetops and (ii) any service connection located within 800 feet of the centerline of Christian Road (State Road No. 1942) between its intersection with Bloomery Road (State Road No. 1996) and West Hornes Church Road (State Road No. 1941). Prior to the cessation of service, the city of Wilson may establish rates, fees, charges, and penalties for the communication services provided in the temporary extension areas in the same manner as communication services provided in the county limits of Wilson County, including the incorporated areas within the County. Service will be deemed available for purposes of this provision upon the certification by a competitive provider to the city that service is available in a temporary extension area. For purposes of this subdivision, a competitive provider is an incumbent local exchange carrier or cable telecommunications company that is not presently providing Fiber to the Premises (FTTP) service in the temporary extension areas.
      4. For all other cities or joint agencies offering communications service, the service area is the area designated in the map filed as part of the initial notice of franchise with the Secretary of State as of January 1, 2011.
  4. The exemptions provided in this section do not exempt a city or joint agency from laws and rules of general applicability to governmental services, including nondiscriminatory obligations.
  5. In the event a city subject to the exemption set forth in subsection (c) of this section provides communications service to a customer outside the limits set forth in that subsection, the city shall have 30 days from the date of notice or discovery to cease providing service to the customer without loss of the exemption.

History

(2011-84, s. 1(a); 2017-180, s. 1.)

Editor's Note. - Session Laws 2011-84, s. 8, provides: "Except as otherwise provided, this act is effective when it becomes law [May 21, 2011] and applies to the provision of communications service by a city or joint agency under Part 1 of Article 20 of Chapter 160A of the General Statutes on and after that date."

Effect of Amendments. - Session Laws 2017-180, s. 1, effective July 25, 2017, added the second through last sentences in subdivision (c)(3)c.

§ 160A-340.3. Notice; public hearing.

A city or joint agency that proposes to provide communications service shall hold not fewer than two public hearings, which shall be held not less than 30 days apart, for the purpose of gathering information and comment. Notice of the hearings shall be published at least once a week for four consecutive weeks in the predominant newspaper of general circulation in the area in which the city is located. The notice shall also be provided to the North Carolina Utilities Commission, which shall post the notice on its Web site, and to all companies that have requested service of the notices from the city clerk. The city shall deposit the notice in the U.S. mail to companies that have requested notice at least 45 days prior to the hearing subject to the notice. Private communications service providers shall be permitted to participate fully in the public hearings by presenting testimony and documentation relevant to their service offerings and the city's plans. Any feasibility study, business plan, or public survey conducted or prepared by the city in connection with the proposed communications service project is a public record as defined by G.S. 132-1 and shall be made available to the public prior to the public hearings required by this section. This section does not apply to the repair, rebuilding, replacement, or improvement of an existing communications network, or equipment relating thereto.

History

(2011-84, s. 1(a).)

Editor's Note. - Session Laws 2011-84, s. 8, provides: "Except as otherwise provided, this act is effective when it becomes law [May 21, 2011] and applies to the provision of communications service by a city or joint agency under Part 1 of Article 20 of Chapter 160A of the General Statutes on and after that date."


§ 160A-340.4. Financing.

  1. A city or joint agency subject to the provisions of G.S. 160A-340.1 shall not enter into a contract under G.S. 160A-19 or G.S. 160A-20 to purchase or to finance the purchase of property for use in a communications network or to finance the construction of fixtures or improvements for use in a communications network unless it complies with subsection (b) of this section. The provisions of this section shall not apply to the repair, rebuilding, replacement, or improvement of an existing communications network, or equipment relating thereto.
  2. A city shall not incur debt for the purpose of constructing a communications system without first holding a special election under G.S. 163-297 on the question of whether the city may provide communications service. If a majority of the votes cast in the special election are for the city providing communications service, the city may incur the debt for the service. If a majority of the votes cast in the special election are against the city providing communications service, the city shall not incur the debt. However, nothing in this section shall prohibit a city from revising its plan to offer communications service and calling another special election on the question prior to providing or offering to provide the service. A special election required under Chapter 159 of the General Statutes as a condition to the issuance of bonds shall satisfy the requirements of this section.

History

(2011-84, s. 1(a); 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.)

Re-codification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled `Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification, in consultation with the State Ethics Commission, the State Board of Elections, the Secretary of State, and the new Bipartisan State Board of Elections and Ethics Enforcement. Pursuant to this authority, the Revisor of Statutes substituted "163A-1592" for "163-297" in the first sentence of subsection (b).

Session Laws 2018-146, ss. 3.1(a), (b) and 6.1 repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the change to the reference in subsection (b).

Session Laws 2011-84, s. 8, provides: "Except as otherwise provided, this act is effective when it becomes law [May 21, 2011] and applies to the provision of communications service by a city or joint agency under Part 1 of Article 20 of Chapter 160A of the General Statutes on and after that date."


§ 160A-340.5. Taxes; payments in lieu of taxes.

  1. A communications network owned or operated by a city or joint agency shall be exempt from property taxes. However, each city possessing an ownership share of a communications network and a joint agency owning a communications network shall, in lieu of property taxes, pay to any county authorized to levy property taxes the amount which would be assessed as taxes on real and personal property if the communications network were otherwise subject to valuation and assessment. Any payments in lieu of taxes shall be due and shall bear interest, if unpaid, as in the case of taxes on other property.
  2. A city-owned communications service provider shall pay to the State, on an annual basis, an amount in lieu of taxes that would otherwise be due the State if the communications service was provided by a private communications service provider, including State income, franchise, vehicle, motor fuel, and other similar taxes. The amount of the payment in lieu of taxes shall be set annually by the Department of Revenue and shall approximate the taxes that would be due if the communications service was undertaken by a private communications service provider. A city-owned communications service provider must provide information requested by the Secretary of Revenue necessary for calculation of the assessment. The Department must inform each city-owned communications service provider of the amount of the assessment by January 1 of each year. The assessment is due by March 15 of each year. If the assessment is unpaid, the State may withhold the amount due, including interest on late payments, from distributions otherwise due the city under G.S. 105-164.44I.
  3. A city-owned communications service provider or a joint agency that provides communications service shall not be eligible for a refund under G.S. 105-164.14(c) for sales and use taxes paid on purchases of tangible personal property and services related to the provision of communications service, except to the extent a private communications service provider would be exempt from taxation.

History

(2011-84, s. 1(a).)

State Payment in Lieu of Taxes Study Commission. - Session Laws 2013-340, ss. 3.1 through 3.9, provide: "3.1 There is established the State Payment in Lieu of Taxes Study Commission. The Commission shall consist of 13 members appointed as follows:

"(1) Three members of the House of Representatives appointed by the Speaker of the House of Representatives.

"(2) Three members of the Senate appointed by the President Pro Tempore of the Senate.

"(3) The Secretary of Revenue or the Secretary's designee.

"(4) Three members of the public appointed by the Speaker of the House of Representatives, two based on the recommendation of the North Carolina Association of County Commissioners and one based on the recommendation of the North Carolina League of Municipalities.

"(5) Three members of the public appointed by the President Pro Tempore of the Senate, two based on the recommendation of the North Carolina Association of County Commissioners and one based on the recommendation of the North Carolina League of Municipalities.

"3.2. The Speaker of the House of Representatives and the President Pro Tempore of the Senate shall each designate a cochair. The Commission may meet at any time upon the joint call of the cochairs. A quorum of the Commission shall be a majority of its members. No action may be taken except by a majority vote at a meeting at which a quorum is present.

"3.3. Vacancies on the Commission shall be filled by the same appointing authority that made the initial appointment.

"3.4. Subject to the approval of the Legislative Services Commission, the Commission may meet in the Legislative Building or the Legislative Office Building.

"3.5. The Legislative Services Commission, through the Legislative Services Officer, shall assign professional staff to assist the Commission in its work. The House of Representatives' and the Senate's Director of Legislative Assistants shall assign clerical support staff to the Commission, and the expenses relating to the clerical employees shall be borne by the Commission.

"3.6. The Commission, while in the discharge of its official duties, may exercise all powers provided for under G.S. 120-19 and G.S. 120-19.1 through G.S. 120-19.4. The Commission may contract for professional, clerical, or consultant services as provided by G.S. 120-32.02.

"3.7. Members of the Commission shall receive subsistence and travel expenses at the rates set forth in G.S. 120-3.1, 138-5, or 138-6, as appropriate.

"3.8. The Commission shall study issues relating to the development of a State payment in lieu of taxes for State properties, including wildlife and game lands. The Commission may consider any other issues deemed relevant.

"3.9. The Commission may submit an interim report on the results of its study, including any proposed legislation, to the members of the Senate and the House of Representatives at any time by filing a copy of the report with the Office of the President Pro Tempore of the Senate, the Office of the Speaker of the House of Representatives, and the Legislative Library. The Commission shall submit a final report on the results of its study, including any proposed legislation, to the members of the Senate and the House of Representatives, prior to the convening of the 2015 General Assembly, by filing a copy of the report with the Office of the President Pro Tempore of the Senate, the Office of the Speaker of the House of Representatives, and the Legislative Library. The Committee shall terminate upon the convening of the 2015 General Assembly or upon the filing of its final report, whichever occurs first."

Editor's Note. - Session Laws 2011-84, s. 8, provides: "Except as otherwise provided, this act is effective when it becomes law [May 21, 2011] and applies to the provision of communications service by a city or joint agency under Part 1 of Article 20 of Chapter 160A of the General Statutes on and after that date."


§ 160A-340.6. Public-private partnerships for communications service.

  1. Prior to undertaking to construct a communications network for the provision of communications service, a city shall first solicit proposals from private business in accordance with the procedures of this section.
  2. The city shall issue requests for proposals that specify the nature and scope of the requested communications service, the area in which it is to be provided, any specifications and performance standards, and information as to the city's proposed participation in providing equipment, infrastructure, or other aspects of the service. The city may prescribe the form and content of proposals and may require that proposals contain sufficiently detailed information to allow for an objective evaluation of proposals using the factors stated in subsection (d) of this section. Each proposal shall at minimum contain all of the following:
    1. Information regarding the proposer's experience and qualifications to perform the requirements of the proposal.
    2. Information demonstrating the proposer's ability to secure financing needed to perform the requirements of the proposal.
    3. Information demonstrating the proposer's ability to provide staffing, implement work tasks, and carry out all other responsibilities necessary to perform the requirements of the proposal.
    4. Information clearly identifying and specifying all elements of cost of the proposal for the term of the proposed contract, including the cost of the purchase or lease of equipment and supplies, design, installation, operation, management, and maintenance of any system, and any proposed services.
    5. Any other information the city determines has a material bearing on its ability to evaluate the proposal.
  3. The city shall provide notice that it is requesting proposals in accordance with this subsection. The notice shall state the time and place where plans and specifications for the proposed service may be obtained and the time and place for opening proposals. Any notice given under this subsection shall reserve to the city the right to reject any or all proposals. Notice of request for proposals shall be given by all of the following methods:
    1. By mailing a notice of request for proposals to each firm that has obtained a license or permit to use the public rights-of-way in the city to provide a communications service within the city by depositing such notices in the U.S. mail at least 30 days prior to the date specified for the opening of proposals. In identifying firms, the city may rely upon lists provided by the Office of the Secretary of State and the North Carolina Utilities Commission.
    2. By posting a notice of request for proposals on the city's Web site at least 30 days before the time specified for the opening of proposals.
    3. By publishing a notice of request for proposals in a newspaper of general circulation in the county in which the city is predominantly located at least 30 days before the time specified for the opening of proposals.
  4. In evaluating proposals, the city may consider any relevant factors, including system design, system reliability, operational experience, operational costs, compatibility with existing systems and equipment, and emerging technology. The city may negotiate aspects of any proposal with any responsible proposer with regard to these factors to determine which proposal is the most responsive. A determination of most responsive proposer by the city shall be final.
  5. The city may negotiate a contract with the most responsive proposer for the performance of communications service specified in the request for proposals. All contracts entered into pursuant to this section shall be approved and awarded by the governing body of the city.
  6. If the city is unable to successfully negotiate the terms of a contract with the most responsive proposer within 60 days of the opening of the proposals, the city may proceed to negotiate with the firm determined to be the next most responsive proposer if such a proposer exists. If the city is unable to successfully negotiate the terms of a contract with the next most responsive proposer within 60 days, it may proceed under this Article to provide communications service.
  7. All proposals shall be sealed and shall be opened in public. Provided, that trade secrets shall remain confidential as provided under G.S. 132-1.2.

History

(2011-84, s. 1(a).)

Cross References. - As to local planning and development regulation, see G.S. 160D-101.

Editor's Note. - Session Laws 2011-84, s. 8, provides: "Except as otherwise provided, this act is effective when it becomes law [May 21, 2011] and applies to the provision of communications service by a city or joint agency under Part 1 of Article 20 of Chapter 160A of the General Statutes on and after that date."


ARTICLE 17. Cemeteries.

Sec.

§ 160A-341. Authority to establish and operate cemeteries.

A city shall have authority to establish, operate, and maintain cemeteries either inside or outside its corporate limits, may acquire and hold real and personal property for cemetery purposes by gift, purchase, or (for real property) by exercise of the power of eminent domain, may devote any property owned by the city to use as a cemetery, may prohibit burials at any place within the city other than city cemeteries, and may regulate the manner of burial in city cemeteries. Nothing in this section shall confer upon any city authority to prohibit or regulate burials in cemeteries licensed by the State Burial Association Commissioner, or in church cemeteries.

As used in this Article "cemetery" includes columbariums and facilities for cremation.

History

(1917, c. 136, subch. 5, s. 1; 1919, cc. 136, 237; C.S., s. 2787; 1969, c. 402; 1971, c. 698, s. 1.)

CASE NOTES

City's Power over Interment. - The ownership of a lot in a cemetery or a license to inter therein is subject to the police power of the State; interments may be forbidden, and bodies already interred removed, by ordinance of the city, if authorized by act of the legislature. Humphrey v. Board of Trustees, 109 N.C. 132, 13 S.E. 793 (1891), decided under former G.S. 160-2(3).

Town was not impliedly authorized to enact an ordinance reserving to itself the exclusive right to set memorial markers in cemeteries and requiring the payment of a special charge for setting such markers not purchased from the town by former G.S. 160-2(3). Grave constitutional questions would be raised by any statute giving a town such authority. State v. McGraw, 249 N.C. 205, 105 S.E.2d 659 (1958).


§ 160A-342. Authority to transfer cemeteries.

A city may transfer and convey any city cemetery property, together with any accumulated perpetual care trust funds set aside for the maintenance of the cemetery, to any religious organization or cemetery licensed by the State Burial Association Commissioner, upon condition that the transferee will continue use of the property as a cemetery, will perpetually maintain it, and will apply any perpetual care trust funds so transferred only for maintenance of the cemetery.

History

(1917, c. 136, subch. 5, s. 1; 1919, cc. 136, 237; C.S., s. 2787; 1969, c. 402; 1971, c. 698, s. 1.)

§ 160A-343. Authority to abandon cemeteries.

A city shall have authority to abandon any cemetery that has not been used for interment purposes within 10 years. Upon abandonment, all monuments, tombstones, and the contents of all graves within the cemetery shall be transferred at city expense to another city cemetery, or to a cemetery licensed by the State Burial Association Commissioner. After the transfer of monuments, tombstones, and the contents of graves, the city may take possession of, convey, or use the former cemetery property for any lawful purpose.

History

(1917, c. 136, subch. 5, s. 1; 1919, cc. 136, 237; C.S., s. 2787; 1969, c. 402; 1971, c. 698, s. 1.)

§ 160A-344. Authority to assume control of abandoned cemeteries.

  1. Whenever property not under the control or in the possession of any church or religious organization in any city has been heretofore set aside or used for cemetery purposes, and the trustees or owners named in the deed or deeds for the property have died, or are unknown, or the deeds of conveyance have been lost or misplaced and no record of title thereto has been found, and the property has been occupied and used for burial purposes for a time sufficient to identify its use as cemetery property, the city in which the cemetery is located is authorized to take possession of the land and any adjoining land not held by known claimants of title, have the property surveyed and lines established, and to designate and appropriate the property as a city cemetery.
  2. The city may have the land subdivided and laid off into family burial plots, may sell any of the unused lots so laid off to any person for burial purposes, and may use the proceeds of the sale for the improvement and upkeep of the cemetery.
  3. The city may appropriate and use funds for the improvement and maintenance of the cemetery, and all laws and ordinances applicable to city cemeteries shall apply to the cemetery from and after the date that the city assumes control of it.

History

(1971, c. 698, s. 1.)

§ 160A-345. Authority to condemn cemeteries.

A city shall have authority to acquire title in fee simple by purchase or exercise of the power of eminent domain to any cemetery, graveyard, or burial place within the city and to operate and maintain the property so acquired as a city cemetery. This section shall not apply to a cemetery licensed by the North Carolina State Burial Association Commissioner, nor to property owned or controlled by any church or religious organization, unless the owner of the property consents to the acquisition.

History

(1951, c. 385, s. 1; 1971, c. 698, s. 1.)

§ 160A-346. Authority to condemn easements for perpetual care.

A city shall have authority to acquire an easement for perpetual care by gift, grant, purchase, or exercise of the power of eminent domain in any cemetery, graveyard, or burial place within the city. When a perpetual care easement is acquired under this section, all city ordinances concerning the care and upkeep of city cemeteries shall be applicable to the cemetery, and the income from city perpetual care trust funds may be used to care for and maintain the cemetery. This section shall not apply to a cemetery licensed by the North Carolina State Burial Association Commissioner or to property owned or controlled by any church or religious organization unless the owner of the property consents to the acquisition.

History

(1951, c. 385, s. 2; 1971, c. 698, s. 1.)

§ 160A-347. Perpetual care trust funds.

  1. A city is authorized to create a perpetual care trust fund for any cemeteries under its ownership or control, to accept gifts, grants, and devises on behalf of the perpetual care trust fund, to deposit any revenues realized from the sale of lots in or the operation of city cemeteries in the perpetual care trust fund, and to hold and administer the trust fund for the purpose of perpetually caring for and beautifying the city's cemeteries. The city may make contracts with the owners of plots in city cemeteries obligating the city to maintain the plots in perpetuity upon payment of such sums as the council may fix.
  2. The principal of perpetual care trust funds shall be held intact, and the income from such funds shall be used to carry out contracts with plot owners for the perpetual care of the plots, and to maintain and perpetually care for the cemetery.
  3. Perpetual care trust funds shall be kept separate and apart from all other city funds, and shall in no case be appropriated by, lent to, or in any manner used by the city for any purpose other than the perpetual care of city cemeteries.

History

(1917, c. 136, subch. 9, s. 1; C.S., ss. 2810, 2811, 2812; 1927, c. 254; 1971, c. 698, s. 1; 2011-284, s. 113.)

Effect of Amendments. - Session Laws 2011-284, s. 113, effective June 24, 2011, deleted "bequests" following "grants" in the first sentence.

§ 160A-348. Regulation of city cemeteries.

A city may by ordinance adopt rules and regulations concerning the opening of graves, the erection of tombstones and monuments, the building of walls and fences, the hours of opening and closing and all other matters concerning the use, operation, and maintenance of city cemeteries. The ordinance may impose a schedule of prices for lots and fees for the opening of graves in the cemetery, but it may not require the owners of plots to purchase monuments, vaults, or other items from the city.

History

(1971, c. 698, s. 1.)

§ 160A-349: Reserved for future codification purposes.

ARTICLE 17A. Cemetery Trustees.

Sec.

§ 160A-349.1. Creation of board authorized; official title; terms of office; vacancies.

The governing body of any municipal corporation which now owns or shall hereafter own a cemetery is authorized, if it is deemed proper, to create a board composed of not less than three nor more than five persons, to be known as "Cemetery Trustees of the Town or City of . . . . . . . . . . . ., North Carolina"; shall fix the term of office of each member, in no case to exceed five years, and in case of any vacancy by death, resignation or otherwise, elect a successor.

History

(Pub. Loc. 1923, c. 583, s. 1.)

Editor's Note. - This Article, which is derived from Public-Local Laws 1923, c. 583, as amended by Session Laws 1951, c. 87, and Session Laws 1973, c. 474, s. 31, was omitted from the General Statutes of 1943, and was codified for the first time in 1973.

§ 160A-349.2. Members to meet and organize; meetings; bond of secretary and treasurer; record of proceedings.

The members of said board, when properly elected, shall within 30 days after notice of their election convene and designate one of their number chairman, one secretary and treasurer, and provide for regular meetings at such times as the said board shall fix; it shall also fix the bond to be given by the secretary and treasurer, conditioned for the faithful accounting of all moneys which shall come into his hands; shall provide for special meetings, and shall cause the secretary to keep a record of its proceedings.

History

(Pub. Loc. 1923, c. 583, s. 2.)

§ 160A-349.3. Property vested.

Upon the creation of such board the title to all property held by the town or city and used for cemetery purposes shall pass to and vest in said board, subject to the same limitations, conditions and restrictions as it was held by the town or city; provided, that the governing body of the town or city may at any time by resolution direct that title to such property shall pass to and vest in the town or city itself, and in such event it shall be the duty of the board and its officers to execute all necessary documents to effect such transfer and vesting.

History

(Pub. Loc. 1923, c. 583, s. 3; 1979, 2nd Sess., c. 1247, s. 30.)

§ 160A-349.4. Control and management; superintendent and assistants; enumeration of powers.

The said board shall have the exclusive control and management of such cemetery; shall have the power to employ a superintendent and such assistants as may be needed, and may do any and all things pertaining to the control, maintenance, management and upkeep of the cemetery which the governing body of the town or city could have done, or which by law the governing body of the town or city shall hereafter be authorized to do.

History

(Pub. Loc. 1923, c. 583, s. 4.)

§ 160A-349.5. Rules continued in force.

All rules and regulations heretofore adopted by the town or city for the control, upkeep, management, and maintenance, as well as policing of the cemetery, shall continue in force and effect until and after the said board shall have changed the same as herein provided for.

History

(Pub. Loc. 1923, c. 583, s. 5.)

§ 160A-349.6. Rules for maintaining order and policing; force of rules; copy to governing body; publication.

The said board shall have power to adopt rules and regulations for maintaining order in the cemetery and policing the same, and such rules and regulations, when adopted, shall have the same force and effect as ordinances adopted and passed by the governing body of the town or city. When any such rules and regulations shall be adopted the secretary of the board shall transmit a copy thereof to the governing body of the town or city, and shall cause a copy to be published in some newspaper published in the town or city, and the said rules and regulations shall be in force and effect 10 days after their publication.

History

(Pub. Loc. 1923, c. 583, s. 6.)

§ 160A-349.7. Presentation of budget; details of budget; appropriation; payment to board.

Thirty days prior to the adoption of the annual budget by the governing body of the town or city, the said trustees shall present to such governing body a budget for the ensuing year, in which said budget there shall be set out in detail an accurate account of the receipts and expenditures of the board for the previous year, the estimated expense for the ensuing year, the estimated source of income from all sources, other than appropriation by the governing body of the town or city, any balance on hand, and such other information as the said trustees may think proper; and the said governing body of the town or city shall in the annual budget include such appropriation as it deems proper for the care and maintenance of the said cemetery for the ensuing year, which shall be paid over to the board of trustees in monthly installments.

For purposes of the Local Government Budget and Fiscal Control Act (Chapter 159, Subchapter III), the board of trustees of a cemetery is a board of the municipal corporation establishing the board of trustees and is not a public authority as defined by G.S. 159-7.

History

(Pub. Loc. 1923, c. 583, s. 7; 1971, c. 780, s. 37.3; 1973, c. 474, s. 31; 1979, 2nd Sess., c. 1247, s. 31.)

§ 160A-349.8. Commissioners to obtain maps, plats and deeds; list of lots sold and owners; surveys and plats to be made; additional lots, streets, walks and parkways; price of lots; regulation of sale of lots.

The board of trustees shall obtain from the governing body all maps, plats, deeds and other evidences relating to the lands, lots and property of the cemetery; they shall also obtain from the governing body of the town or city, as nearly as possible, an accurate list of the lots theretofore sold, together with the names of the owners thereof. The said board of trustees shall from time to time cause surveys to be made, maps and plats prepared, laying out additional lots, streets, paths, walks and parkways; shall fix a price at which such lots shall be sold, which price may from time to time, in the discretion of the board, be changed; shall adopt rules and regulations as to the sale of said lots and deliver to the purchaser or purchasers deed or evidences of title thereto.

History

(Pub. Loc. 1923, c. 583, s. 8.)

§ 160A-349.9. Power to acquire land; adjacent property; disposal of money from lot sales; investments; income from investment.

The said board shall have the power to acquire additional lands for cemetery purposes, either by purchase or otherwise. In making such additional acquisitions of property, if possible, they shall acquire adjacent property; all moneys received from the sale of lots shall be held by the board of trustees intact and used for the purchase of additional lands; to beautify and otherwise maintain and keep the present property and the future acquired property. The board may, if it seems best to it, invest the said money in good, interest-bearing securities, payable to the said board, and the income derived therefrom shall be by the board used in the beautifying, maintenance and upkeep of the cemetery or cemeteries under its control.

History

(Pub. Loc. 1923, c. 583, s. 9.)

§ 160A-349.10. Power to condemn land; procedure for condemnation; board incorporated.

If it becomes necessary to acquire additional lands for cemetery purposes and the board cannot agree with the owners upon the price thereof, the board shall have the power to condemn the lands for cemetery purposes, and in so doing the provisions of Chapter 40A of the General Statutes shall be followed as nearly as possible, and to that end, and for that purpose, the board of trustees of any cemetery acquired under this Article shall be deemed and considered a corporation and a body politic.

History

(Pub. Loc. 1923, c. 583, s. 10; 2001-487, s. 38(i).)

§ 160A-349.11. Price of lands included in budget.

If any lands are acquired by purchase or condemnation for cemetery purposes and the board of trustees shall not have sufficient funds with which to pay for the same, the amount necessary shall be included in their budget request, and the governing body of any town or city may make an appropriation to complete the purchase.

History

(Pub. Loc. 1923, c. 583, s. 11; 1979, 2nd Sess., c. 1247, s. 32.)

§ 160A-349.12. Power to accept gifts; exclusive use of gifts.

The board of trustees of any cemetery shall have the power to accept gifts, either by devise or otherwise, and hold the same for the purposes expressed in the gift, and any monies coming into the hands of such board by devise or otherwise shall be by the board used exclusively for the purposes for which it is given.

History

(Pub. Loc. 1923, c. 583, s. 12; 2011-284, s. 114.)

Effect of Amendments. - Session Laws 2011-284, s. 114, effective June 24, 2011, deleted "bequeath" following "devise" and made a minor stylistic change.

§ 160A-349.13. Sale of unnecessary property.

The board of trustees of any cemetery, created pursuant to this Article, shall have the power to sell at public auction, as provided by G.S. 160-59, any real property, title to which is held by it, which it shall determine to be unfit or unnecessary for cemetery purposes, except when such sale would violate the terms of any deed, gift or trust pursuant to which the property proposed to be sold was acquired. Any such sales and conveyances heretofore made by any such board of trustees are hereby validated.

History

(1951, c. 87.)

Editor's Note. - G.S. 160-59, referred to in this section, was repealed by Session Laws 1971, c. 698, s. 2. For present provisions as to sale of municipal property at public auction, see G.S. 160A-270.


§ 160A-349.14. Exercise of powers subject to approval.

The board may not act to acquire or sell land pursuant to G.S. 160A-349.9, G.S. 160A-349.10, or G.S. 160A-349.13 unless such action was approved in advance by the governing body of the town or city.

History

(1979, 2nd Sess., c. 1247, s. 33.)

§ 160A-349.15. Termination.

The governing body of the town or city shall have the authority to terminate the existence of the board at any time. In the event of such termination, all property and assets of the board shall automatically become the property of the town or city and the town or city shall succeed to all rights, obligations and liabilities of the board. Further, in the event of such termination, it shall be the duty of the board and its officers to execute all necessary documents to effect the transfer of property and assets to the town or city.

History

(1979, 2nd Sess., c. 1247, s. 34.)

ARTICLE 18. Parks and Recreation.

Sec.

§ 160A-350. Short title.

This Article shall be known and may be cited as the "Recreation Enabling Law."

History

(1945, c. 1052; 1971, c. 698, s. 1.)

Cross References. - As to power of counties to establish parks and recreational programs pursuant to this Article, see G.S. 153A-444.

CASE NOTES

Construction of Swimming Pool as Public Purpose. - While the construction of a swimming pool as a part of a city's recreation system may not be financed as a necessary expense of government under our constitutional limitation, N.C. Const., Art. V, § 4, without a vote of the people, nevertheless, such a facility is for a public purpose. City of Greensboro v. Smith, 239 N.C. 138, 79 S.E.2d 486 (1954), decided prior to enactment of this Article.


§ 160A-351. Declaration of State policy.

The lack of adequate recreational programs and facilities is a menace to the morals, happiness, and welfare of the people of this State. Making available recreational opportunities for citizens of all ages is a subject of general interest and concern, and a function requiring appropriate action by both State and local government. The General Assembly therefore declares that the public good and the general welfare of the citizens of this State require adequate recreation programs, that the creation, establishment, and operation of parks and recreation programs is a proper governmental function, and that it is the policy of North Carolina to forever encourage, foster, and provide these facilities and programs for all its citizens.

History

(1945, c. 1052; 1971, c. 698, s. 1.)

CASE NOTES

Governmental Immunity. - Determination that a county and a department were not entitled to governmental immunity in a negligence case seeking to recover damages after the estate's decedent drowned in a park area rented out for use by private parties was vacated because the decision turned solely or predominantly on the fact that the services provided could also have been provided by nongovernmental entities, but this distinction lacked the utility it once had; the intermediate appellate court made a passing reference to G.S. 160A-351, which was clearly relevant to the question of whether the maintaining and operating of the park was governmental or proprietary endeavor. However, even if the operation of a parks and recreation program was a governmental function by statute, the question remained whether the specific operation of the swimming area component of the park under these circumstances was a governmental function. Estate of Williams v. Pasquotank County Parks & Rec. Dep't, 366 N.C. 195, 732 S.E.2d 137 (2012).

Proprietary Functions. - Municipalities may perform proprietary functions within public parks; thus, a public park may include activities which are governmental and protected by governmental immunity as well as proprietary functions which are not. Estate of Williams v. Pasquotank County Parks & Rec. Dep't, 211 N.C. App. 627, 711 S.E.2d 450 (2011).

G.S. 160A-351 was not dispositive of a town's claim that the town was entitled to the defense of governmental immunity when the town was sued for personal injuries allegedly suffered in the town's park because, even if the operation of a parks and recreation program were a governmental function by statute, not every nuanced action that could occur in a park or other recreational facility was designated as governmental or proprietary in nature by the legislature, and, when the legislature did not directly resolve whether a specific activity was governmental or proprietary in nature, other factors were relevant, including whether the undertaking was one in which only a governmental agency could engage, whether the undertaking was traditionally one provided by a governmental entity, whether a substantial fee was charged for the service provided, and whether that fee did more than simply cover the operating costs of the service provider. Horne v. Town of Blowing Rock, 223 N.C. App. 26, 732 S.E.2d 614 (2012).

County Involved In Proprietary Function In Operation Of Park. - Trial court did not err in denying a county's motion for summary judgment in an estate's action to recover damages after a decedent drowned in a park area rented out for use by private parties because the county was involved in a proprietary function in the operation of the party facilities at the park; the county charged for the use of the park for a private party but did not make a profit from the rental fees for the park, and thus, the county was involved in a traditional government function that could be performed by private entities and did so for a substantial fee although it did not make a profit. Estate of Williams v. Pasquotank County Parks & Rec. Dep't, 211 N.C. App. 627, 711 S.E.2d 450 (2011).

Cited in River Birch Assocs. v. City of Raleigh, 326 N.C. 100, 388 S.E.2d 538 (1990); Hickman ex rel. Womble v. Fuqua, 108 N.C. App. 80, 422 S.E.2d 449 (1992).


§ 160A-352. Recreation defined.

"Recreation" means activities that are diversionary in character and aid in promoting entertainment, pleasure, relaxation, instruction, and other physical, mental, and cultural development and leisure time experiences.

History

(1945, c. 1052; 1971, c. 698, s. 1.)

CASE NOTES

Use of Land for Baseball Stadium. - Although the taxpayers argued that the county's authority to acquire and use land under G.S. 160A-352, G.S. 160A-353, and G.S. 153A-444 did not include the operation of a professional baseball stadium because it was a proprietary venture for pecuniary gain, the court found that G.S. 159-48(b)(13) expressly provided that parks and recreation facilities included stadiums, and neither G.S. 160A-352, G.S. 160A-353, nor G.S. 153-444 prohibited recreational facilities from being operated for a pecuniary gain. Moreover, the lease transaction achieved the proper governmental purpose of erecting a stadium as a recreational facility. Reese v. Mecklenburg County, 200 N.C. App. 491, 685 S.E.2d 34 (2009), review denied, 364 N.C. 242, 698 S.E.2d 653, 2010 N.C. LEXIS 445 (2010).

Cited in Hickman ex rel. Womble v. Fuqua, 108 N.C. App. 80, 422 S.E.2d 449 (1992).


§ 160A-353. Powers.

In addition to any other powers it may possess to provide for the general welfare of its citizens, each county and city in this State shall have authority to:

  1. Establish and conduct a system of supervised recreation;
  2. Set apart lands and buildings for parks, playgrounds, recreational centers, and other recreational programs and facilities;
  3. Acquire real property, either within or without the corporate limits of the city or the boundaries of the county, including water and air rights, for parks and recreation programs and facilities by gift, grant, purchase, lease, exercise of the power of eminent domain, or any other lawful method.
  4. Provide, acquire, construct, equip, operate, and maintain parks, playgrounds, recreation centers, and recreation facilities, including all buildings, structures, and equipment necessary or useful in connection therewith;
  5. Appropriate funds to carry out the provisions of this Article;
  6. Accept any gift, grant, lease, loan, or devise of real or personal property for parks and recreation programs. Devises and gifts may be accepted and held subject to such terms and conditions as may be imposed by the grantor or trustor, except that no county or city may accept or administer any terms that require it to discriminate among its citizens on the basis of race, sex, or religion.

History

(1945, c. 1052; 1971, c. 698, s. 1; 1973, c. 426, s. 55; 2011-284, s. 115.)

Local Modification. - City of Asheville: 1981, c. 23.

Effect of Amendments. - Session Laws 2011-284, s. 115, effective June 24, 2011, deleted "bequest" following "loan" in the first sentence, and deleted "bequests" following "Devises" in the last sentence.

Legal Periodicals. - For article, "Where Will You Go When the Well Runs Dry? Local Government Ownership and Water Allocation in North Carolina," see 32 Campbell L. Rev. 51 (2009).

CASE NOTES

Recreational Facility Need Not Be Designed Before Land Is Acquired. - Neither G.S. 40A-3(b)(3), which vests municipalities with the power of eminent domain to establish, enlarge or improve parks, playgrounds and other recreational facilities, nor this section, of similar import, nor any other statute, contains any requirement that the city design a public facility authorized by resolution before the land for the facility is acquired. City of Charlotte v. Rousso, 82 N.C. App. 588, 346 S.E.2d 693 (1986).

Dedication for Recreation Facilities Is for Public Purpose. - The power of cities to dedicate real property for use as recreation centers and for other recreational purposes was expressly conferred by former G.S. 160-156, and the exercise of this power was in the public interest and for a public purpose. Brumley v. Baxter, 225 N.C. 691, 36 S.E.2d 281, 162 A.L.R. 930 (1945). See also, White v. City of Charlotte, 209 N.C. 573, 183 S.E. 730 (1936); Atkins v. City of Durham, 210 N.C. 295, 186 S.E. 330 (1936).

Although the taxpayers argued that the county's authority to acquire and use land under G.S. 160A-352, G.S. 160A-353, and G.S. 153A-444 did not include the operation of a professional baseball stadium because it was a proprietary venture for pecuniary gain, the court found that G.S. 159-48(b)(13) expressly provided that parks and recreation facilities included stadiums, and neither G.S. 160A-352, G.S. 160A-353, nor G.S. 153-444 prohibited recreational facilities from being operated for a pecuniary gain. Moreover, the lease transaction achieved the proper governmental purpose of erecting a stadium as a recreational facility. Reese v. Mecklenburg County, 200 N.C. App. 491, 685 S.E.2d 34 (2009), review denied, 364 N.C. 242, 698 S.E.2d 653, 2010 N.C. LEXIS 445 (2010).

Issuance of Bonds to Establish Parks and Playgrounds Upheld. - Municipal corporations were given authority by former G.S. 160-156, 160-200(12), and 160-229, to establish parks and playgrounds necessary to the maintenance of the health of their inhabitants; hence, an ordinance of a populous industrial city which provided for the issuance of bonds to establish and maintain parks and playgrounds for the children of the city was a valid exercise of its police power under legislative authority for the promotion of the public health, safety, and morals. Atkins v. City of Durham, 210 N.C. 295, 186 S.E. 330 (1936).

Abandonment of Public Park. - The authority to acquire, establish, and regulate parks conferred by former G.S. 160-200(12) did not give a municipality the power to abandon an established public park. Wishart v. City of Lumberton, 254 N.C. 94, 118 S.E.2d 35 (1961).

Eminent Domain Proper Exercise of Power to Acquire Land for Parks. - It was not error to find that plaintiff was authorized to acquire land for parks, recreational programs and facilities through exercise of power of eminent domain. Town of Chapel Hill v. Burchette, 100 N.C. App. 157, 394 S.E.2d 698 (1990).

Cited in Hickman ex rel. Womble v. Fuqua, 108 N.C. App. 80, 422 S.E.2d 449 (1992).


§ 160A-354. Administration of parks and recreation programs.

A city or county may operate a parks and recreation system as a line department, or it may create a parks and recreation commission and vest in it authority to operate the parks and recreation system.

History

(1945, c. 1052; 1971, c. 698, s. 1.)

§ 160A-355. Joint parks and recreation systems.

Any two or more units of local government may cooperate in establishing parks and recreation systems as authorized in Article 20, Part 1, of this Chapter.

History

(1945, c. 1052; 1967, c. 1228; 1971, c. 698, s. 1.)

§ 160A-356. Financing parks and recreation.

Each county and city is authorized to expend for its parks and recreation system any of its revenues not otherwise limited as to use by law.

History

(1945, c. 1052; 1971, c. 698, s. 1; 1975, c. 664, s. 12.)

§ 160A-357: Repealed by Session Laws 1975, c. 664, s. 13.

§§ 160A-358, 160A-359: Reserved for future codification purposes.

ARTICLE 19. Planning and Regulation of Development.

§§ 160A-360 through 160A-459.1: Repealed by Session Laws 2019-111, s. 2.3, as amended by Session Laws 2020-3, s. 4.33(a), and Session Laws 2020-25, s. 51(a), (b), (d), effective June 19, 2020.

History

(G.S. 160A-360: 1959, c. 1204; 1961, c. 103; c. 548, ss. 1, 13/4; c. 1217; 1963, cc. 519, 889, 1076, 1105; 1965, c. 121; c. 348, s. 2; c. 450, s. 1; c. 864, ss. 3-6; 1967, cc. 15, 22, 149; c. 197, s. 2; cc. 246, 685; c. 1208, s. 3; 1969, cc. 11, 53; c. 1010, s. 5; c. 1099; 1971, c. 698, s. 1; c. 1076, s. 3; 1973, c. 426, s. 56; c. 525; c. 669, s. 1; 1977, c. 882; c. 912, ss. 2, 4; 1995 (Reg. Sess., 1996), c. 746, s. 1; 2005-418, s. 10; 2011-34, ss. 1, 2; 2011-363, s. 4; 2014-120, s. 15; repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-360.1: 2014-120, s. 16(c); repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-361: 1919, c. 23, s. 1; C.S., s. 2643; 1945, c. 1040, s. 2; 1955, cc. 489, 1252; 1959, c. 327, s. 2; c. 390; 1971, c. 698, s. 1; 1973, c. 426, s. 57; 1979, 2nd Sess., c. 1247, s. 35; 1997-309, s. 7; 1997-456, s. 27; 2004-199, s. 41(a); repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-362: 1959, c. 1204; 1961, c. 103; c. 548, ss. 1, 13/4; c. 1217; 1963, cc. 519, 889, 1076, 1105; 1965, c. 121; c. 348, s. 2; c. 450, s. 1; c. 864, ss. 3-6; 1967, cc. 15, 22, 149; c. 197, s. 2; cc. 246, 685; c. 1208, s. 3; 1969, cc. 11, 53; c. 1010, s. 5; c. 1099; 1971, c. 698, s. 1; 1983, c. 584, ss. 1-4; 1995 (Reg. Sess., 1996), c. 746, s. 2; 2005-418, s. 11; repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-363: 1919, c. 23, s. 1; C.S., s. 2643; 1945, c. 1040, s. 2; 1955, cc. 489, 1252; 1959, c. 327, s. 2; c. 390; 1971, c. 698, s. 1; 1983, c. 377, s. 9; 2004-199, s. 41(b); 2005-418, s. 1(a); 2007-371, s. 2; repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-364: 1923, c. 250, s. 4; C.S., s. 2776(u); 1927, c. 90; 1955, c. 1334, s. 1; 1971, c. 698, s. 1; 1973, c. 426, s. 58; 1977, c. 912, s. 5; 1979, 2nd Sess., c. 1247, s. 36; 1981, c. 891, s. 1; 2004-75, s. 2; 2005-426, s. 1(a); repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-364.1: 1981, c. 891, s. 3; 1995 (Reg. Sess., 1996), c. 746, s. 7; 2011-326, s. 22(b); 2011-384, s. 4; 2013-413, s. 5(b); 2019-111, ss. 1.8; repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-365: 1971, c. 698, s. 1; 2015-246, s. 3; repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-366: 1973, c. 669, s. 2; repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-371: 1955, c. 1334, s. 1; 1971, c. 698, s. 1; 2005-418, s. 2(a); repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-372: 1955, c. 1334, s. 1; 1961, c. 1168; 1971, c. 698, s. 1; 1973, c. 426, s. 59; 1985, c. 146, ss. 1, 2; 1987, c. 747, ss. 9, 18; 1989 (Reg. Sess., 1990), c. 1024, s. 39; 2005-426, s. 2(a); 2015-187, s. 1(a); 2017-40, s. 3(a); 2017-102, s. 31(a), (b); 2019-79, s. 1; 2019-174, s. 3(a); repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-373: 1955, c. 1334, s. 1; 1971, c. 698, s. 1; 1973, c. 426, s. 60; 1997-309, s. 8; 2005-418, s. 3(a); repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-374: 1955, c. 1334, s. 1; 1971, c. 698, s. 1; 1983 (Reg. Sess., 1984), c. 1080; 1985, c. 635; repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-375: 1955, c. 1334, s. 1; 1971, c. 698, s. 1; 1977, c. 820, s. 2; 1993, c. 539, s. 1087; 1994, Ex. Sess., c. 24, s. 14(c); 2005-426, s. 3(a); repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-376: 1955, c. 1334, s. 1; 1971, c. 698, s. 1; 1973, c. 426, s. 61; 1977, c. 912, s. 6; 2003-284, s. 29.23(a); 2005-426, s. 4(a); 2017-10, s. 2.5(b); repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-377: 2009-421, s. 2(a); 2013-126, s. 12; repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-381: 1923, c. 250, s. 1; C.S., s. 2776(r); 1967, c. 1208, s. 1; 1971, c. 698, s. 1; 1981, c. 891, s. 5; 1985, c. 442, s. 1; 1987, c. 747, s. 11; 1995, c. 357, s. 1; 2005-426, s. 5(a); 2007-381, s. 2; 2011-286, s. 2; 2013-126, s. 4; 2013-413, s. 6(b); 2014-115, s. 17; 2015-86, s. 1; 2015-246, ss. 3.1(a), 4(b), 16; 2015-286, s. 1.8(b); 2019-111, s. 1.12; 2019-174, s. 3(b); repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-382: 1923, c. 250, s. 2; C.S., s. 2776(s); 1931, c. 176, s. 1; 1933, c. 7; 1963, c. 1058, s. 1; 1971, c. 698, s. 1; 1973, c. 426, s. 60; 1985, c. 607, s. 1; 2005-426, s. 6(a); 2019-111, s. 1.14; repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-383: 1923, c. 250, s. 3; C.S., s. 2776(t); 1971, c. 698, s. 1; 2005-426, s. 7(a); 2006-259, s. 28; 2017-10, s. 2.4(c); 2018-5, s. 34.18(b); repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-383.1: 1987, c. 805, s. 1; repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-383.2: 2005-390, s. 7; repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-383.3: 2007-147, s. 1; repealed by 2019-111, s. 2.3, as
amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-383.4: 2007-241, ss. 1, 2; 2008-22, s. 1; 2009-95, s. 1; repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-383.5: 2014-94; repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-384: 1923, c. 250, s. 4; C.S., s. 2776(u); 1927, c. 90; 1971, c. 698, s. 1; 1985, c. 595, s. 2; 1987, c. 807, s. 1; 1989 (Reg. Sess., 1990), c. 980, s. 1; 1993, c. 469, s. 1; 1995, c. 546, s. 1; 2005-418, s. 4(a); 2009-178, s. 2; 2019-111, s. 1.4; repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-385: 1923, c. 250, s. 5; C.S., s. 2776(v); 1959, c. 434, s. 1; 1965, c. 864, s. 1; 1971, c. 698, s. 1; 1977, c. 912, s. 7; 1985, c. 540, s. 2; 1989 (Reg. Sess., 1990), c. 996, s. 1; 1991, c. 512, s. 4; 2005-418, s. 5; 2015-160, s. 1; 2016-111, s. 1; 2019-111, s. 1.3(a), (b); repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-385.1: 1989 (Reg. Sess., 1990), c. 996, s. 2; 2016-111, s. 2; 2019-111, s. 1.3(c); repealed by 2019-111, s. 2.3, as amended by 2020-3, s. 4.33(a), 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 160A-386: 1963, c. 1058, s. 2; 1971, c. 698, s. 1; 2005-418, s. 6; repealed by 2015-160, s. 2, effective August 1, 2015.)

Cross References. - As to present similar provisions pertaining to Local Planning and Development Regulation, see G.S. 160D-101 et seq.

Editor's Note. - Former G.S. 160A-360 pertained to territorial jurisdiction. Former G.S. 160A-360.1 pertained to permit choice. Former G.S. 160A-361 pertained to planning boards. Former G.S. 160A-362 pertained to extraterritorial representation. Former G.S. 160A-363 pertained to supplemental powers. Former G.S. 160A-364 pertained to the procedure for adopting, amending, or repealing ordinances under Article. Former G.S. 160A-364.1 pertained to statute of limitations. Former G.S. 160A-365 pertained to enforcement of ordinances. Former G.S. 160A-366 pertained to validation of ordinance. Former G.S. 160A-371 pertained to subdivision regulation. Former G.S. 160A-372 pertained to contents and requirements of ordinance. Former G.S. 160A-373 pertained to the ordinance to contain procedure for plat approval; approval prerequisite to plat recordation; statement by owner. Former G.S. 160A-374 pertained to the effect of plat approval on dedications. Former G.S. 160A-375 pertained to penalties for transferring lots in unapproved subdivisions. Former G.S. 160A-376 pertained to definition. Former G.S. 160A-377 pertained to appeals of decisions on subdivision plats. Former G.S. 160A-381 pertained to grant of power. Former G.S. 160A-382 pertained to districts. Former G.S. 160A-383 pertained to purposes in view. Former G.S. 160A-383.1 pertained to zoning regulations for manufactured homes. Former G.S. 160A-383.2 pertained to voluntary agricultural districts. Former G.S. 160A-383.3 pertained to reasonable accommodation of amateur radio antennas. Former G.S. 160A-383.4 pertained to local energy efficiency incentives. Former G.S. 160A-383.5 pertained to zoning of temporary health care structures. Former G.S. 160A-384 pertained to method of procedure. Former G.S. 160A-385 pertained to changes to land development regulations. Former G.S. 160A-385.1 pertained to vested rights. Former G.S. 160A-386 pertained to protest petition; form; requirements; time for filing. Former G.S. 160A-387 pertained to planning board; zoning plan; certification to city council. Former G.S. 160A-388 pertained to board of adjustment. Former G.S. 160A-389 pertained to remedies. Former G.S. 160A-390 pertained to conflict with other laws. Former G.S. 160A-391 pertained to other statutes not repealed. Former G.S. 160A-392 pertained to part applicable to buildings constructed by State and its subdivisions; exception. Former G.S. 160A-393 pertained to appeals in the nature of certiorari. Former G.S. 160A-393.1 pertained to civil action for declaratory relief, injunctive relief, other remedies; joinder of complaint and petition for writ of certiorari in certain cases. Former G.S. 160A-393.2 pertained to no estoppel effect when challenging development conditions. Former G.S. 160A-400.1 pertained to legislative findings. Former G.S. 160A-400.2 pertained to exercise of powers by counties as well as cities. Former G.S. 160A-400.3 pertained to character of historic district defined. Former G.S. 160A-400.4 pertained to designation of historic districts. Former G.S. 160A-400.5 pertained to designation of landmarks; adoption of an ordinance; criteria for designation. Former G.S. 160A-400.6 pertained to required landmark designation procedures. Former G.S. 160A-400.7 pertained to Historic Preservation Commission. Former G.S. 160A-400.8 pertained to powers of the Historic Preservation Commission. Former G.S. 160A-400.9 pertained to certificate of appropriateness required. Former G.S. 160A-400.10 pertained to conflict with other laws. Former G.S. 160A-400.11 pertained to remedies. Former G.S. 160A-400.12 pertained to appropriations. Former G.S. 160A-400.13 pertained to protection of certain landmarks; permissible changes. Former G.S. 160A-400.14 pertained to delay in demolition of landmarks and buildings within historic district. Former G.S. 160A-400.15 pertained to demolition by neglect to contributing structures outside local historic districts. Former G.S. 160A-400.20 pertained to authorization for development agreements. Former G.S. 160A-400.21 pertained to definitions. Former G.S. 160A-400.22 pertained to local governments authorized to enter into development agreements; approval of governing body required. Former G.S. 160A-400.23 pertained to developed property criteria; permissible durations of agreements. Former G.S. 160A-400.24 pertained to public hearing. Former G.S. 160A-400.25 pertained to what development agreement must provide; what it may provide; major modification requires public notice and hearing. Former G.S. 160A-400.26 pertained to law in effect at time of agreement governs development; exceptions. Former G.S. 160A-400.27 pertained to periodic review to assess compliance with agreement; material breach by developer; notice of breach; cure of breach or modification or termination of agreement. Former G.S. 160A-400.28 pertained to amendment or cancellation of development agreement by mutual consent of parties or successors in interest. Former G.S. 160A-400.29 pertained to validity and duration of agreement entered into prior to change of jurisdiction; subsequent modification or suspension. Former G.S. 160A-400.30 pertained to developer to record agreement within 14 days; burdens and benefits inure to successors in interest. Former G.S. 160A-400.31 pertained to applicability to local government of constitutional and statutory procedures for approval of debt. Former G.S. 160A-400.32 pertained to relationship of agreement to building or housing code; comprehensive plan amendment. Former G.S. 160A-400.50 pertained to purpose and compliance with federal law. Former G.S. 160A-400.51 pertained to definitions. Former G.S. 160A-400.51A pertained to local authority. Former G.S. 160A-400.52 pertained to construction of new wireless support structures or substantial modifications of wireless support structures. Former G.S. 160A-400.53 pertained to collocation and eligible facilities requests of wireless support structures. Former G.S. 160A-400.54 pertained to collocation of small wireless facilities. Former G.S. 160A-400.55 pertained to use of public right-of-way. Former G.S.
160A-400.56 pertained to access to city utility poles to install small wireless facilities. Former G.S. 160A-400.57 pertained to applicability. Former G.S. 160A-401 pertained to legislative intent. Former G.S. 160A-402 pertained to finding of necessity. Former G.S. 160A-403 pertained to counties or cities authorized to acquire and reconvey real property. Former G.S. 160A-404 pertained to joint action by governing bodies. Former G.S. 160A-405 pertained to powers of governing bodies. Former G.S. 160A-406 pertained to appropriations authorized. Former G.S. 160A-407 pertained to definitions. Former G.S. 160A-411 pertained to inspection department. Former G.S. 160A-411.1 pertained to qualifications of inspectors. Former G.S. 160A-412 pertained to duties and responsibilities. Former G.S. 160A-413 pertained to joint inspection department; other arrangements. Former G.S. 160A-413.5 pertained to alternate inspection method for component or element. Former G.S. 160A-413.6 pertained to mutual aid contracts. Former G.S. 160A-414 pertained to financial support; fee collection, accounting, and use limitation. Former G.S. 160A-415 pertained to conflicts of interest. Former G.S. 160A-416 pertained to failure to perform duties. Former G.S. 160A-417 pertained to permits. Former G.S. 160A-418 pertained to time limitations on validity of permits. Former G.S. 160A-419 pertained to changes in work. Former G.S. 160A-420 pertained to inspections of work in progress. Former G.S. 160A-421 pertained to stop orders. Former G.S. 160A-422 pertained to revocation of permits. Former G.S. 160A-423 pertained to certificates of compliance; temporary certificates of occupancy.

Former G.S. 160A-424 pertained to periodic inspections for hazardous or unlawful conditions. Former G.S. 160A-425 pertained to defects in buildings to be corrected. Former G.S. 160A-426 pertained to unsafe buildings condemned in localities. Former G.S. 160A-427 pertained to removing notice from condemned building. Former G.S. 160A-428 pertained to action in event of failure to take corrective action. Former G.S. 160A-429 pertained to order to take corrective action. Former G.S. 160A-430 pertained to appeal; finality of order if not appealed. Former G.S. 160A-431 pertained to failure to comply with order. Former G.S. 160A-432 pertained to enforcement. Former G.S. 160A-433 pertained to records and reports. Former G.S. 160A-434 pertained to appeals in general. Former G.S. 160A-435 pertained to establishment of fire limits. Former G.S. 160A-436 pertained to restrictions within primary fire limits. Former G.S. 160A-437 pertained to restriction within secondary fire limits. Former G.S. 160A-438 pertained to failure to establish primary fire limits. Former G.S. 160A-439 pertained to ordinance authorized as to repair, closing, and demolition of nonresidential buildings or structures; order of public officer. Former G.S. 160A-439.1 pertained to vacant building receivership. Former G.S. 160A-441 pertained to exercise of police power authorized. Former G.S. 160A-442 pertained to definitions. Former G.S. 160A-443 pertained to ordinance authorized as to repair, closing, and demolition; order of public officer. Former G.S. 160A-443.1 pertained to heat source required. Former G.S. 160A-444 pertained to standards. Former G.S. 160A-445 pertained to service of complaints and orders. Former G.S. 160A-446 pertained to remedies. Former G.S. 160A-447 pertained to compensation to owners of condemned property. Former G.S. 160A-448 pertained to additional powers of public officer. Former G.S. 160A-449 pertained to administration of ordinance. Former G.S. 160A-450 pertained to the supplemental nature of Part. Former G.S. 160A-451 pertained to membership and appointment of commission; joint commission. Former G.S. 160A-452 pertained to powers and duties of commission. Former G.S. 160A-453 pertained to staff services; advisory council. Former G.S. 160A-454 pertained to annual report. Former G.S. 160A-455 pertained to receipt and expenditure of funds. Former G.S. 160A-456 pertained to community development programs and activities. Former G.S. 160A-457 pertained to acquisition and disposition of property for redevelopment. Former G.S. 160A-457.1 pertained to Urban Development Action Grants. Former G.S. 160A-457.2 pertained to Urban homesteading programs. Former G.S. 160A-458 pertained to erosion and sedimentation control. Former G.S. 160A-458.1 pertained to floodway regulations. Former G.S. 160A-458.2 pertained to mountain ridge protection. Former G.S. 160A-458.3 pertained to downtown development projects. Former G.S. 160A-458.4 pertained to designation of transportation corridor official maps. Former G.S. 160A-458.5 pertained to restriction of certain forestry activities prohibited. Former G.S. 160A-459 pertained to stormwater control. Former G.S. 160A-459.1 pertained to the program to finance energy improvements.

Session Laws 2019-111, s. 3.2 provided for the delayed repeal of this Article, effective January 1, 2021, and applicable to local government development regulation decisions made on or after that date, and further provided that "Part II of this act clarifies and restates the intent of existing law and applies to ordinances adopted before, on, and after the effective date." Session Laws 2020-3, s. 4.33(a), extended the delayed repeal of this Article, making it effective August 1, 2021, and applicable to local government development regulation decisions made on or after that date. Session Laws 2020-25, s. 51(a), (d), repealed Session Laws 2019-111, s. 3.2, and Session Laws 2020-3, s. 4.33, effective June 19, 2020.

Session Laws 2020-3, s. 5, is a severability clause.

Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which repealed this Article] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:

"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or

"(2) July 1, 2021."

ARTICLE 20. Interlocal Cooperation.

Part 1. Joint Exercise of Powers.

Sec.

Part 2. Regional Councils of Governments.

Part 3. Regional Sports Authorities.

Part 4. Facility Authorities.

Part 5. Water and Wastewater Systems.

PART 1. JOINT EXERCISE OF POWERS.

§ 160A-460. Definitions.

The words defined in this section shall have the meanings indicated when used in this Part:

  1. "Undertaking" means the joint exercise by two or more units of local government, or the contractual exercise by one unit for one or more other units, of any power, function, public enterprise, right, privilege, or immunity of local government.
  2. "Unit," or "unit of local government" means a county, city, consolidated city-county, local board of education, sanitary district, facility authority created under Part 4 of this Article, special district created under Article 43 of Chapter 105 of the General Statutes, or other local political subdivision, authority, or agency of local government.

History

(1971, c. 698, s. 1; 1975, c. 821, s. 4; 1979, c. 774, s. 1; 1981, c. 641; 1995, c. 458, s. 3; 2009-527, s. 2(f).)

Local Modification. - Cherokee, Graham, Jackson and Swain: 1973, c. 1406.

Cross References. - As to application of this Part to joint construction of buildings by counties, cities or other units of local government, see G.S. 153A-164.

As to authority of counties under this Part, see also G.S. 153A-212.

As to power of county to take action under the provisions of this Part, see G.S. 153A-445.

Funds for Local Government Water and Sewer Improvement Grants. - Session Laws 2007-323, s. 13.13A, provides for the use of certain funds appropriated to the Rural Economic Development Center, Inc. for the 2007-2008 fiscal year for wastewater-related and public water system-related projects. See note at G.S. 160A-311.

Session Laws 2008-107, s. 13.8, provides for the use of certain funds appropriated to the Rural Economic Development Center, Inc. for the 2007-2008 fiscal year for wastewater-related and public water system-related projects. See note at G.S. 160A-311.

Session Laws 2008-107, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2008'."

Session Laws 2008-107, s. 30.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2008-2009 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2008-2009 fiscal year."

Session Laws 2008-107, s. 30.5, is a severability clause.

Effect of Amendments. - Session Laws 2009-527, s. 2(f), effective August 27, 2009, inserted "special district created under Article 43 of Chapter 105 of the General Statutes," in subdivision (2).

CASE NOTES

Applied in Trask v. City of Wilmington, 64 N.C. App. 17, 306 S.E.2d 832 (1983); Reese v. City of Charlotte, 196 N.C. App. 557, 676 S.E.2d 493, review denied, 363 N.C. 656, 685 S.E.2d 105 (2009).

Cited in Cash v. Granville County Board of Educ., 242 F.3d 219 (4th Cir. 2001); BellSouth Telecomms., Inc. v. City of Laurinburg, 168 N.C. App. 75, 606 S.E.2d 721, cert. denied, - N.C. - , 615 S.E.2d 660, cert. denied, 359 N.C. 629, - S.E.2d - (2005).

Opinions of Attorney General

Local boards of education have authority to make agreements establishing self-insurance program, provided (1) the contracts establishing such program contain the provisions required by G.S. 160A-464, and (2) the contracts incorporate certain limitations set forth in G.S. 115C-42 and 115C-43. See opinion of Attorney General to Mr. Gene Causby, Executive Director, North Carolina School Boards Association, 55 N.C.A.G. 77 (1986).


§ 160A-461. Interlocal cooperation authorized.

Any unit of local government in this State and any one or more other units of local government in this State or any other state (to the extent permitted by the laws of the other state) may enter into contracts or agreements with each other in order to execute any undertaking. The contracts and agreements shall be of reasonable duration, as determined by the participating units, and shall be ratified by resolution of the governing board of each unit spread upon its minutes.

History

(1971, c. 698, s. 1.)

CASE NOTES

This section merely extends the powers of a municipality to act in concert with other local governments and in no way restricts the anticompetitive conduct contemplated in supplying sewage services. Pinehurst Enters., Inc. v. Town of S. Pines, 690 F. Supp. 444 (M.D.N.C. 1988), aff'd, 887 F.2d 1080 (4th Cir. 1989).

Agreements Not Prohibited. - Nothing in Chapter 162A indicates it was designed to restrict the broad grant of authority to local governmental units for interlocal cooperation; therefore, an agreement to construct a water distribution facility was not prohibited because units of local government were permitted to enter into contracts under G.S. 160A-461. Caswell County v. Town of Yanceyville, 170 N.C. App. 124, 611 S.E.2d 451 (2005).

Property transactions encompassed by an Interlocal Cooperation Agreement between a city and a county were authorized by G.S. 160A-461, G.S. 160A-460(1), G.S. 160A-274(b), and G.S. 160A-266(a). The city and the county entered into the agreement to achieve the specific government-related goals of the development of an urban park; the development of a mixed-use, residential-commercial community; the development of a baseball stadium; and the sale of a city square to fund infrastructure improvements for the baseball facility. Reese v. City of Charlotte, 196 N.C. App. 557, 676 S.E.2d 493, review denied, 363 N.C. 656, 685 S.E.2d 105 (2009).

Applied in Trask v. City of Wilmington, 64 N.C. App. 17, 306 S.E.2d 832 (1983).

Cited in Chapel Hill Country Club, Inc. v. Town of Chapel Hill, 97 N.C. App. 171, 388 S.E.2d 168 (1990); Cash v. Granville County Board of Educ., 242 F.3d 219 (4th Cir. 2001); Grassy Creek Neighborhood Alliance v. City of Winston-Salem, 142 N.C. App. 290, 542 S.E.2d 296 (2001).


§ 160A-462. Joint agencies.

  1. Units agreeing to an undertaking may establish a joint agency charged with any or all of the responsibility for the undertaking. The units may confer on the joint agency any power, duty, right, or function needed for the execution of the undertaking, except that legal title to all real property necessary to the undertaking shall be held by the participating units individually, or jointly as tenants in common, in such manner and proportion as they may determine.
  2. The participating units may appropriate funds to the joint agency on the basis of an annual budget recommended by the agency and submitted to the governing board of each unit for approval.

History

(1971, c. 698, s. 1.)

Local Modification. - (As to subsection (a)) Clay County: 2003-127, s. 2.

Cross References. - As to transfer of ownership of provisionally approved septic tanks and innovative septic tank systems to joint agency in certain counties and inspection fees in those counties, see G.S. 130A-343.1.

Editor's Note. - Session Laws 2010-153, s. 1, as amended by Session Laws 2011-345, s. 1, provides: "A joint agency created by an interlocal agreement pursuant to G.S. 160A-462 to operate a cable system that provides video programming services is allowed a refund of sales and use tax paid by it on purchases made on or after July 1, 2007, and before June 30, 2011, to the same extent allowed to a city under G.S. 105-164.14(c). Notwithstanding G.S. 105-164.14, the joint agency must make a request for a refund in writing before January 1, 2011, for sales and use tax paid on or after July 1, 2007, and before June 30, 2010."

CASE NOTES

Cited in Grassy Creek Neighborhood Alliance v. City of Winston-Salem, 142 N.C. App. 290, 542 S.E.2d 296 (2001).


§ 160A-463. Personnel.

  1. The units may agree that any joint agency established under G.S. 160A-462 shall appoint the officers, agents, and employees necessary to execute the undertaking, or that the units jointly shall appoint these personnel, or that one of the units shall appoint the personnel with their services contracted for by the other units or by the joint agency. If the units determine that one unit shall appoint the personnel, the agreement shall provide that the jurisdiction, authority, rights, privileges, and immunities (including coverage under the workers' compensation laws) which the officers, agents, and employees of the appointing unit enjoy within the territory of that unit shall also be enjoyed by them outside its territory when they are acting pursuant to the agreement and within the scope of their authority or the course of their employment.
  2. When the subject of an undertaking is a sovereign function of government, the exercise of which has been delegated to an officer of each participating unit, the agreement may provide that one officer shall exercise the function for all the participating units, with all of the powers, duties, and obligations that an officer exercising the function in a single unit would have.

History

(1971, c. 698, s. 1; 1991, c. 636, s. 3.)

§ 160A-464. Provisions of the agreement.

Any contract or agreement establishing an undertaking shall specify:

  1. The purpose or purposes of the contract or agreement;
  2. The duration of the agreement;
  3. If a joint agency is established, its composition, organization, and nature, together with the powers conferred on it;
  4. The manner of appointing the personnel necessary to the execution of the undertaking;
  5. The method of financing the undertaking, including the apportionment of costs and revenues;
  6. The formula for ownership of real property involved in the undertaking, and procedures for the disposition of such property when the contract or agreement expires or is terminated;
  7. Methods for amending the contract or agreement;
  8. Methods for terminating the contract or agreement;
  9. Any other necessary or proper matter.

History

(1971, c. 698, s. 1.)

CASE NOTES

Cited in BellSouth Telecomms., Inc. v. City of Laurinburg, 168 N.C. App. 75, 606 S.E.2d 721, cert. denied, - N.C. - , 615 S.E.2d 660, cert. denied, 359 N.C. 629, - S.E.2d - (2005).

Opinions of Attorney General

Local boards of education have authority to make agreements establishing self-insurance program, provided (1) the contracts establishing such program contain the provisions required by G.S. 160A-464, and (2) the contracts incorporate certain limitations set forth in G.S. 115C-42 and G.S. 115C-43. See Opinion of Attorney General to Mr. Gene Causby, Executive Director, North Carolina School Boards Association, 55 N.C.A.G. 77 (1986).

Local boards of education may enter into interlocal agreements to form the North Carolina School Boards Trust. See opinion of Attorney General to Edwin Dunlap, Jr., Executive Director, North Carolina School Boards Association, 2002 N.C. AG LEXIS 12 (2/20/02).

§ 160A-465: Repealed by Session Laws 1979, c. 774, s. 2.

§ 160A-466. Revenue and expenditures for joint undertakings.

When two or more units of local government are engaged in a joint undertaking, they may enter into agreements regarding financing, expenditures, and revenues related to the joint undertaking. Funds collected by any participating unit of government may be transferred to and expended by any other unit of government in a manner consistent with the agreement. An agreement regarding expenses and revenues may be of reasonable duration not to exceed 99 years.

History

(2003-417, s. 1.)

Cross References. - As to local development act of 1925, see G.S. 158-7.1 et seq.


§§ 160A-467 through 160A-469: Reserved for future codification purposes.

PART 2. REGIONAL COUNCILS OF GOVERNMENTS.

§ 160A-470. Creation of regional councils; definition of "unit of local government".

  1. Any two or more units of local government may create a regional council of governments by adopting identical concurrent resolutions to that effect in accordance with the provisions and procedures of this Part. To the extent permitted by the laws of its state, a local government in a state adjoining North Carolina may participate in regional councils of governments organized under this Part to the same extent as if it were located in this State. The concurrent resolutions creating a regional council of governments, and any amendments thereto, will be referred to in this Part as the "charter" of the regional council.
  2. For the purposes of this Part, "unit of local government" means a county, city, or consolidated city-county.

History

(1971, c. 698, s. 1; 1973, c. 426, s. 71.)

Cross References. - As to power of county to take action under the provisions of this Part, see G.S. 153A-445.

Commerce Nonprofits/Reporting Requirements. - Session Laws 2011-145, s. 14.10(a)-(c), provides: "(a) Ag in the Classroom, Councils of Government, Defense & Security Technology Accelerator, FFA Foundation, High Point Market Authority, Indian Economic Development Initiative, Johnson & Wales University, Land Loss Prevention Project, North Carolina Association of Community Development Corporations, North Carolina Institute of Minority Economic Development, Inc., North Carolina Community Development Initiative, Inc., North Carolina Minority Support Center, and Partnership for the Sounds, Inc., shall do the following:

"(1) By September 1 of each year, and more frequently as requested, report to the Joint Legislative Commission on Governmental Operations and the Fiscal Research Division on prior State fiscal year program activities, objectives, and accomplishments and prior State fiscal year itemized expenditures and fund sources.

"(2) Provide to the Fiscal Research Division a copy of the organization's annual audited financial statement within 30 days of issuance of the statement.

"(b) Remaining allotments after September 1 shall not be released to any nonprofit organization that does not satisfy the reporting requirements provided in subsection (a) of this section.

"(c) Beginning in fiscal year 2012-2013, no more than one hundred twenty thousand dollars ($120,000) in State funds shall be used for the annual salary of any one employee of an entity named in subsection (a) of this section."

Session Laws 2013-360, s. 15.25, provides: "Ag in the Classroom, High Point Furniture Market Authority, Johnson & Wales University, North Carolina's Eastern Region, North Carolina's Northeast Commission, Southeastern North Carolina Regional Economic Development Commission, Western North Carolina Regional Economic Development Commission, Charlotte Regional Partnership, Inc., Piedmont Triad Partnership, RTI International, Research Triangle Regional Partnership, and The Support Center shall do the following:

"(1) By September 1 of each year, and more frequently as requested, report to the Joint Legislative Commission on Governmental Operations and the Fiscal Research Division on prior State fiscal year program activities, objectives, and accomplishments and prior State fiscal year itemized expenditures and fund sources.

"(2) Provide to the Fiscal Research Division a copy of the entity's annual audited financial statement within 30 days of issuance of the statement."

Editor's Note. - Session Laws 2011-145, s. 1.1, provides: "This act shall be known as the "Current Operations and Capital Improvements Appropriations Act of 2011."

Session Laws 2011-145, s. 32.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium."

Session Laws 2011-145, s. 32.5, is a severability clause.

Session Laws 2013-360, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2013.'"

Session Laws 2013-360, s. 38.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium."

Session Laws 2013-360, s. 38.5, is a severability clause.

Session Laws 2020-3, s. 4.42(a), provides: "In administering Federal Emergency Management Agency public assistance and individual assistance funds, the North Carolina Department of Emergency Management may utilize the North Carolina Regional Councils of Government established in accordance with Article 19 of Chapter 153A of the General Statutes and Part 2 of Article 20 of Chapter 160A of the General Statutes to provide assistance with training, grant applications, and any other requested service by qualifying units of local government. A regional council of government may be designated by a unit or units of local government to administer any Federal Emergency Management Agency public assistance funds on its behalf."

Session Laws 2020-3, s. 5, is a severability clause.

Session Laws 2021-25, s. 3.4(h), provides: "In order to more effectively administer and execute the Housing Opportunities and Prevention of Evictions program, the Office shall engage the services of the applicable regional council of government created under Part 2 of Article 20 of Chapter 160A of the General Statutes, or the applicable regional planning commission created under Article 19 of Chapter 153A of the General Statutes, serving the counties set forth in subsection (f) of this section. No later than 30 days from the effective date of this section, the Office shall submit a written report to the chairs of the Senate Appropriations/Base Budget Committee, the chairs of the House Appropriations Committee, and the Fiscal Research Division on how it intends to utilize the councils of government or regional planning commissions for planning, dissemination of information, and application assistance, and any other service provided by the councils of government or regional planning commissions."

Legal Periodicals. - For survey of 1978 administrative law, see 57 N.C.L. Rev. 831 (1979).

For survey of 1978 law on civil procedure, see 57 N.C.L. Rev. 891 (1979).

CASE NOTES

The purpose of councils of governments is to coordinate governmental functions best undertaken on a regional level. Kloster v. Region D Council of Gov'ts, 36 N.C. App. 421, 245 S.E.2d 180, cert. denied, 295 N.C. 466, 246 S.E.2d 215 (1978).

Nature of Council. - Once created, a council does not become a municipality, or a political or governmental subdivision of the State in the same sense as a city, town or county. A council may take on some of the attributes and functions of a political subdivision, but does not possess the powers which municipalities are said to possess. Kloster v. Region D Council of Gov'ts, 36 N.C. App. 421, 245 S.E.2d 180, cert. denied, 295 N.C. 466, 246 S.E.2d 215 (1978).

Standing to Contest Council Activities. - A taxpayer and resident of an area encompassed by a regional council of governments has standing to contest allegedly illegal activities of the council, where such activities are funded by tax moneys or property derived from local or federal sources, or where such activities may later require support by tax moneys. Kloster v. Region D Council of Gov'ts, 36 N.C. App. 421, 245 S.E.2d 180, cert. denied, 295 N.C. 466, 246 S.E.2d 215 (1978).


§ 160A-471. Membership.

Each unit of local government initially adopting a concurrent resolution under G.S. 160A-470 shall become a member of the regional council. Thereafter, any local government may join the regional council by ratifying its charter and by being admitted by a majority vote of the existing members. All of the rights and privileges of membership in a regional council of governments shall be exercised on behalf of its member governments by their delegates to the council.

History

(1971, c. 698, s. 1; 1973, c. 426, s. 72.)

§ 160A-472. Contents of charter.

The charter of a regional council of governments shall:

  1. Specify the name of the council;
  2. Establish the powers, duties, and functions that it may exercise and perform;
  3. Establish the number of delegates to represent the member governments, fix their terms of office, provide methods for filling vacancies, and prescribe the compensation and allowances, if any, to be paid to delegates;
  4. Set out the method of determining the financial support that will be given to the council by each member government;
  5. Establish a method for amending the charter, and for dissolving the council and liquidating its assets and liabilities.

In addition, the charter may, but need not, contain rules and regulations for the conduct of council business and any other matter pertaining to the organization, powers, and functioning of the council that the member governments deem appropriate.

History

(1971, c. 698, s. 1.)

§ 160A-473. Organization of council.

Upon its creation, a regional council shall meet at a time and place agreed upon by its member governments and shall organize by electing a chairman and any other officers that the charter may specify or the delegates may deem advisable. The council shall then adopt bylaws for the conduct of its business. All meetings of the council shall be open to the public.

History

(1971, c. 698, s. 1.)

§ 160A-474. Withdrawal from council.

Any member government may withdraw from a regional council at the end of any fiscal year by giving at least 60 days' written notice to each of the other members. Withdrawal of a member government shall not dissolve the council if at least two members remain.

History

(1971, c. 698, s. 1.)

§ 160A-475. Specific powers of council.

The charter may confer on the regional council any of the following powers:

  1. To apply for, accept, receive, and dispense funds and grants made available to it by the State of North Carolina or any agency thereof, the United States of America or any agency thereof, any unit of local government (whether or not a member of the council), and any private or civic agency.
  2. To employ personnel.
  3. To contract with consultants.
  4. To contract with the State of North Carolina, any other state, the United States of America, or any agency thereof, for services.
  5. To study regional governmental problems, including matters affecting health, safety, welfare, education, recreation, economic conditions, regional planning, and regional development.
  6. To promote cooperative arrangements and coordinated action among its member governments.
  7. To make recommendations for review and action to its member governments and other public agencies which perform functions within the region in which its member governments are located.
  8. For the purpose of meeting the regional council's office space and program needs, to acquire real property by purchase, gift, or otherwise, and to improve that property. The regional council may pledge real property as security for indebtedness used to finance acquisition of that property or for improvements to that real property, subject to approval by the Local Government Commission as required under G.S. 159-153. A regional council may not exercise the power of eminent domain.
  9. To carry out the powers, duties, and responsibilities granted pursuant to Chapter 157 of the General Statutes except the power of eminent domain. This subdivision does not apply to cities with a population of greater than 250,000 according to the latest federal decennial census.
  10. (See Editor's Note) Any other powers that are exercised or capable of exercise by its member governments and desirable for dealing with problems of mutual concern to the extent such powers are specifically delegated to it from time to time by resolution of the governing board of each of its member governments which are affected thereby, provided, that no regional council of governments shall have the authority to construct or purchase buildings, or acquire title to real property, except for the purposes permitted under subdivision (7a) of this section or in order to exercise the authority granted by Chapter 260 of the Session Laws of 1979.
  11. (See Editor's Note) Any other powers that are exercised or capable of exercise by its member governments and desirable for dealing with problems of mutual concern to the extent such powers are specifically delegated to it from time to time by resolution of the governing board of each of its member governments which are affected thereby, provided, that no regional council of governments shall have the authority to construct or purchase buildings, or acquire title to real property, except for the purposes permitted under subdivision (7a) of this section or in order to exercise the authority granted by Chapter 260 of the Session Laws of 1979, or the powers, duties, and responsibilities granted to the regional council pursuant to Chapter 157 of the General Statutes. Nothing in this subdivision permits a regional council to exercise the power of eminent domain. This subdivision does not apply to cities with a population of greater than 250,000 according to the latest federal decennial census.

History

(1971, c. 698, s. 1; 1975, c. 517, ss. 1, 2; 1979, c. 902; 2005-290, s. 1; 2006-211, s. 1; 2017-178, ss. 2, 3.)

Editor's Note. - Session Laws 2009-451, s. 14.21(e), provides: "By September 1 of each year, and more frequently as requested, each council of government or lead regional organization shall report to the Joint Legislative Commission on Governmental Operations and the Fiscal Research Division of the General Assembly on prior State fiscal year program activities, objectives, and accomplishments, and prior State fiscal year itemized expenditures and fund sources. Each council of government or lead regional organization shall provide to the Fiscal Research Division of the General Assembly a copy of the organization's annual audited financial statement within 30 days of issuance of the statement."

Session Laws 2009-451, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2009'."'

Session Laws 2009-451, s. 28.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2009-2011 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2009-2011 fiscal biennium."'

Session Laws 2009-451, s. 28.5, is a severability clause.

Session Laws 2011-145, s. 14.12A(e), provides: "By September 1 of each year, and more frequently as requested, each council of government or lead regional organization shall report to the Joint Legislative Commission on Governmental Operations and the Fiscal Research Division of the General Assembly on prior State fiscal year program activities, objectives, and accomplishments and prior State fiscal year itemized expenditures and fund sources. Each council of government or lead regional organization shall provide to the Fiscal Research Division of the General Assembly a copy of the organization's annual audited financial statement within 30 days of issuance of the statement."

Session Laws 2011-145, s. 1.1, provides: "This act shall be known as the "Current Operations and Capital Improvements Appropriations Act of 2011."

Session Laws 2011-145, s. 32.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium."

Session Laws 2011-145, s. 32.5, is a severability clause.

Subdivision (8), as amended by Session Laws 2017-176, s. 2, was recodified as subdivision (9) at the direction of the Revisor of Statutes, because it does not apply to cities with a population of greater than 250,000.

Session Laws 2017-178, s. 3 was codified as the last sentence in subdivisions (7a) and (9), and "This subdivision" was substituted for "This act" therein, at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2005-290, s. 1, effective August 22, 2005, made minor punctuation changes throughout the section; added subdivision (7a); and inserted "for the purposes permitted under subdivision (7a) of this section or" near the end of subdivision (8).

Session Laws 2006-211, s. 1, effective August 8, 2006, added the second sentence in subdivision (7a).

Session Laws 2017-178, s. 2, effective July 25, 2017, added subdivision (7b); added "or the powers, duties, and responsibilities granted to the regional council pursuant to Chapter 157 of the General Statutes. Nothing in this subdivision permits a regional council to exercise the power of eminent domain" at the end of subdivision (9) and made a related stylistic change.

Legal Periodicals. - For survey of 1978 administrative law, see 57 N.C.L. Rev. 831 (1979).

For note on the expansion of standing in North Carolina taxpayers' actions, see 15 Wake Forest L. Rev. 126 (1979).

CASE NOTES

The purpose of councils of governments is to coordinate governmental functions best undertaken on a regional level. Kloster v. Region D Council of Gov'ts, 36 N.C. App. 421, 245 S.E.2d 180, cert. denied, 295 N.C. 466, 246 S.E.2d 215 (1978).

Nature of Council. - Once created, council does not become a municipality, or a political or governmental subdivision of the State in the same sense as a city, town or county. A council may take on some of the attributes and functions of a political subdivision, but does not possess the powers which municipalities are said to possess. Kloster v. Region D Council of Gov'ts, 36 N.C. App. 421, 245 S.E.2d 180, cert. denied, 295 N.C. 466, 246 S.E.2d 215 (1978).

Powers Not Conferred by Charter Must Be Specifically Delegated. - The intention of the legislature, by the adoption of subdivision (8) of this section, is that any powers not conferred on a council by its charter be possessed and exercised only upon the express authorization of each of the member governments. Kloster v. Region D Council of Gov'ts, 36 N.C. App. 421, 245 S.E.2d 180, cert. denied, 295 N.C. 466, 246 S.E.2d 215 (1978).

Except for the powers conferred by its charter, a council may neither possess nor exercise any powers which are not specifically delegated by each of its member governments. Kloster v. Region D Council of Gov'ts, 36 N.C. App. 421, 245 S.E.2d 180, cert. denied, 295 N.C. 466, 246 S.E.2d 215 (1978).

Council of Governments did not have power to hold title to real estate and to construct thereon an office building for its own use and for rental purposes, in competition with private enterprise, since subdivisions (1) through (7) of this section do not include the power of land ownership, and since that power was not delegated by the member governments. Kloster v. Region D Council of Gov'ts, 36 N.C. App. 421, 245 S.E.2d 180, cert. denied, 295 N.C. 466, 246 S.E.2d 215 (1978), (decided prior to 1979 amendment).

Standing to Contest Council Activities. - A taxpayer and resident of an area encompassed by a regional council of governments has standing to contest allegedly illegal activities of the council, where such activities are funded by tax moneys or property derived from local or federal sources, or where such activities may later require support by tax moneys. Kloster v. Region D Council of Gov'ts, 36 N.C. App. 421, 245 S.E.2d 180, cert. denied, 295 N.C. 466, 246 S.E.2d 215 (1978).


§ 160A-476. Fiscal affairs.

Each unit of local government having membership in a regional council may appropriate funds to the council from any legally available revenues. Services of personnel, use of equipment and office space, and other services may be made available to the council by its member governments as a part of their financial support.

History

(1971, c. 698, s. 1; 1973, c. 426, s. 73.)

CASE NOTES

Nature of Council. - Once created, a council does not become a municipality, or a political or governmental subdivision of the State in the same sense as a city, town or county. A council may take on some of the attributes and functions of a political subdivision, but does not possess the powers which municipalities are said to possess. Kloster v. Region D Council of Gov'ts, 36 N.C. App. 421, 245 S.E.2d 180, cert. denied, 295 N.C. 466, 246 S.E.2d 215 (1978).


§ 160A-477. Reports.

Each regional council shall prepare and distribute to its member governments and to the public an annual report of its activities including a financial statement.

History

(1971, c. 698, s. 1.)

§ 160A-478. Powers granted are supplementary.

The powers granted to cities and counties by this Article are supplementary to any powers heretofore or hereafter granted by any other general law, local act, or city charter for the same or similar purposes.

History

(1971, c. 698, s. 1.)

PART 3. REGIONAL SPORTS AUTHORITIES.

§ 160A-479. Creation of authority; definition.

  1. Any two or more units of local government may create a regional sports authority by adopting identical concurrent resolutions to that effect in accordance with the provisions of this Part. The concurrent resolutions creating a regional sports authority, and any amendments thereto will be referred to in this Part as the "charter" of the regional sports authority. For the purposes of this Part, "unit of local government" means a county, city or consolidated city-county.
  2. Any regional sports authority created pursuant to this Part shall be a body corporate and politic.

History

(1989, c. 780, s. 1.)

Legal Periodicals. - For note, "If At First You Don't Succeed: Constitutional Challenges to Second Execution Attempts," see 53 Wake Forest L. Rev. 211 (2018).

For article, "Ultimate Discrimination?: Sunday Play, Sports Schedules, and Evaluating the Effectiveness of Anti-Discrimination Laws," see 97 N.C.L. Rev. 933 (2019).

§ 160A-479.1. Purpose of the authority.

The purpose of a regional sports authority shall be to research, design, construct, provide, finance, operate, improve, and maintain facilities for public participation and enjoyment of sports, fitness, health and recreational activities of as many different types and kinds as possible. The primary purpose of any and all such facilities shall be the conduct of sports events but use of these facilities need not be limited to such.

History

(1989, c. 780, s. 1.)

§ 160A-479.2. Jurisdiction of the authority.

  1. The territorial jurisdiction of any authority created pursuant to this Part shall be coterminous with the boundaries of the respective units of local government creating and participating in the authority.
  2. The jurisdiction of any authority created pursuant to this Part shall include any and all currently existing public sports facilities operating within its territorial jurisdiction to the extent that any person or governmental entity owning or controlling such facilities has reached mutual and written agreement with an authority for the operation and maintenance of such facilities by the authority.
  3. The jurisdiction of an authority shall also include any and all new public sports facilities within the regional authority's territorial jurisdiction developed specifically for operation and maintenance by an authority with the agreement of an authority.

History

(1989, c. 780, s. 1.)

Legal Periodicals. - For note, "If At First You Don't Succeed: Constitutional Challenges to Second Execution Attempts," see 53 Wake Forest L. Rev. 211 (2018).

§ 160A-479.3. Membership.

Each unit of local government initially adopting a concurrent resolution under G.S. 160A-479 shall become a member of the regional authority. Thereafter, any local government may join the regional authority by ratifying its charter and by being admitted by a majority vote of the existing members. All of the rights and privileges of membership in a regional sports authority shall be exercised on behalf of its member governments by their delegates to the authority.

History

(1989, c. 780, s. 1.)

§ 160A-479.4. Contents of charter.

The charter of a regional sports authority shall:

  1. Specify the name of the authority;
  2. Establish the powers, duties, and functions that it may exercise and perform;
  3. Establish the number of delegates to represent the member governments, fix their terms of office, provide methods for filling vacancies, and prescribe the compensation and allowances, if any, to be paid to delegates;
  4. Set out the method of determining the financial support that will be given to the authority by each member government;
  5. Establish a method for amending the charter, and for dissolving the authority and liquidating its assets and liabilities.

In addition, the charter may, but need not, contain rules and regulations for the conduct of authority business and any other matter pertaining to the organization, powers, and functioning of the authority that the member governments deem appropriate.

History

(1989, c. 780, s. 1.)

§ 160A-479.5. Organization of authority.

Upon its creation, a regional sports authority shall meet at a time and place agreed upon by its member governments and shall organize by electing a chairman and any other officers that the charter may specify or the delegates may deem advisable. The authority shall then adopt bylaws for the conduct of its business. All meetings of the authority shall be open to the public.

History

(1989, c. 780, s. 1.)

§ 160A-479.6. Withdrawal from authority.

Any member government may withdraw from a regional sports authority at the end of any fiscal year by giving at least 60 days' written notice to each of the other members. A withdrawal does not affect the validity of any revenue bonds or notes, and any revenue from sports facilities in the area of the member government that was pledged in payment of bonds or notes issued before the date of notice of withdrawal remains pledged for that purpose until the bonds and notes and interest on the bonds and notes have been paid. Withdrawal of a member government shall not dissolve the authority if at least two members remain.

History

(1989, c. 780, s. 1.)

§ 160A-479.7. Powers of authority.

  1. The charter may confer on the regional sports authority any or all of the following powers:
    1. To apply for, accept, receive, and dispense funds and grants made available to it by the State of North Carolina or any agency thereof, the United States of America or any agency thereof, any unit of local government (whether or not a member of the authority), and any private or civic agency;
    2. To employ personnel;
    3. To contract with consultants;
    4. To contract with the State of North Carolina, any other state, the United States of America, or any agency thereof, for services;
    5. To adopt bylaws for the regulation of the affairs and the conduct of its business, and to prescribe rules, regulations and policies in connection with the performance of its functions and duties, not inconsistent with this Part;
    6. To adopt an official seal and alter the same at pleasure;
    7. To acquire and maintain an administrative building or office at such place or places as it may determine, which building or office may be used or owned alone or together with any municipalities, corporations, associations or persons under such terms and provisions for sharing costs and otherwise as may be determined;
    8. To sue and be sued in its own name, and to plead and be impleaded;
    9. To receive, administer, and comply with the conditions and requirements respecting any gift, grant, or donation of any property or money;
    10. To acquire by purchase, lease, gift, or otherwise, or to obtain options for the acquisition of, any property, real or personal, improved or unimproved, including an interest in land less than the fee thereof;
    11. To sell, lease, exchange, transfer, or otherwise dispose of, or to grant options for any such purposes with respect to, any real or personal property or interest therein;
    12. To pledge, assign, mortgage, or otherwise grant a security interest in any real or personal property or interest therein, including the right and power to pledge, assign, or otherwise grant a security interest in any money, rents, charges, or other revenues and any proceeds derived by an authority from any and all sources;
    13. To issue revenue bonds of the authority to finance regional sports and recreational facilities, including support facilities, to refund any revenue bonds or notes issued by the authority, whether or not in advance of their maturity or earliest redemption date, or to provide funds for other corporate purposes of the authority;
    14. With the approval of the unit of local government's chief administrative official, to use officers, employees, agents, and facilities of the unit of local government for such purposes and upon such terms as may be mutually agreeable;
    15. To develop and make data, plans, information, surveys, and studies of public sports and recreation facilities within the territorial jurisdiction of an authority, to prepare and make recommendations in regard thereto;
    16. To study and plan for new and improved major regional sports and recreational facilities including but not limited to arenas, stadia, gymnasia, natatoria, pitches, fields, watercourses, and other areas for the conduct of sports and recreational activities. These facilities should be of such sizes and in such locations that they will be adequate to serve the population of the entire jurisdiction of the authority (and beyond) to the extent possible;
    17. To design any new such facilities so they include such equipment and design that efficiency, cost, accessibility, utility, and usability of such facilities will be maximized;
    18. To have sports facilities grouped into complexes or separated as an authority may see fit, and such facilities may include ancillary support facilities including but not limited to those for administration, sports science, sports medicine, training, museums, meeting rooms and conference centers, accommodations, food services, retail shops, theatres, video services, schools, and educational services.
    19. To operate the facilities in such a way as to make them as accessible as possible for rental and use by the public while balancing the need for as many of the facilities as possible (particularly any arenas and stadia) to operate annually without a deficit (exclusive of any debt service);
    20. To operate such facilities together with the State, any entity of the State, or local government as appropriate to maintain a high profile and promotional value for North Carolina and the region encompassed by an authority and to attract as many major regional, national, and international tournaments, events, championships training centers, training camps, and headquarters for the governance of various sports, associations, and events as reasonable and possible;
    21. To generate a significant and continuing positive economic impact on the region and State through the construction and operation of facilities and conduct of events and activities within the facilities;
    22. To set and collect such fees and charges for use of such facilities as is reasonable to offset operating costs of said facilities and yet enable said facilities to be affordable to and used by as much of the regional and State population as possible;
    23. To apply to the appropriate agencies of the State, the United States or any state thereof, and to any other proper agency for such permits, licenses, certificates or approvals as may be necessary, and to construct, maintain and operate projects in accordance with such licenses, permits, certificates or approvals in the same manner as any other person or operating unit of any other person;
    24. To employ engineers, architects, attorneys, real estate counselors, appraisers, financial advisors and such other consultants and employees as may be required in the judgment of an authority and to fix and pay their compensation from funds available to an authority therefor and to select and retain subject to approval of the Local Government Commission, the financial consultants, underwriters and bond attorneys to be associated with the issuance of any revenue bonds and to pay for services rendered by underwriters, financial consultants, or bond attorneys out of the proceeds of any such issue with regard to which the services were performed; and
    25. To do all acts and things necessary, convenient, or desirable to carry out the purposes, and to exercise the powers granted to an authority herein.
  2. The charter may not confer the following powers on the regional sports authority:
    1. To issue general obligation bonds or otherwise incur a debt that is secured by the full faith and/or credit of the authority, a member government of the authority, or the State.
    2. To levy a property tax or other tax.
    3. To acquire property by eminent domain.

History

(1989, c. 780, s. 1; 2007-495, s. 19.)

Effect of Amendments. - Session Laws 2007-495, s. 19, effective August 30, 2007, made minor stylistic changes in subdivision (a)(16).

§ 160A-479.8. Fiscal accountability.

A Regional Sports Authority is a public authority subject to the provisions of Chapter 159 of the General Statutes of North Carolina.

History

(1989, c. 780, s. 1.)

§ 160A-479.9. Funds.

  1. The establishment and operation of an authority as herein authorized are governmental functions and constitute a public purpose, and the State of North Carolina and any unit of local government may appropriate funds to support the establishment and operation of an authority.
  2. The State of North Carolina and any unit of local government may also dedicate, sell, convey, donate or lease any of their interests in any property to an authority.

History

(1989, c. 780, s. 1.)

§ 160A-479.10. Controlling provisions.

Insofar as the provisions of this Part are not consistent with the provisions of any other law, public or private, the provisions of this Part shall be controlling.

History

(1989, c. 780, s. 1.)

§ 160A-479.11. Conflicts of interest of public officials.

Members, officers, and employees of any authority created under this Part shall be subject to the provisions of G.S. 14-234.

History

(1989, c. 780, s. 1.)

§ 160A-479.12. Issuance of revenue bonds and notes.

The Local Government Revenue Bond Act, G.S. Chapter 159, Article 5, governs the issuance of revenue bonds by an authority. G.S. Chapter 159, Article 9, governs the issuance of notes in anticipation of the sale of revenue bonds.

History

(1989, c. 780, s. 1.)

§ 160A-479.13. Acquisition of property.

In addition to the powers hereinbefore granted, an authority may, in its charter, be granted continuing power to acquire, by gift, grant, devise, exchange, purchase, lease with or without option to purchase, or any other lawful method, the fee or any lesser interest in real or personal property for use by an authority.

History

(1989, c. 780, s. 1; 2011-284, s. 119.)

Effect of Amendments. - Session Laws 2011-284, s. 119, effective June 24, 2011, deleted "bequest" following "devise."

§ 160A-479.14. Tax exemption.

  1. The property of an authority, both real and personal, its acts, activities and income shall be exempt from any tax or tax obligation; in the event of any lease of authority property, or other arrangement which amounts to a leasehold interest, to a private party, this exemption shall not apply to the value of such leasehold interest nor shall it apply to the income of the lessee.
  2. Otherwise, however, for the purpose of taxation, when property of an authority is leased to private parties solely for the purpose of an authority, the acts and activities of an authority for the purpose of exemption of the lessee shall be considered as the acts and activities of the private parties.
  3. The interest on revenue bonds or notes issued by an authority shall be exempt from State taxes.

History

(1989, c. 780, s. 1.)

§ 160A-479.15. Removal and relocation of utility structures.

  1. An authority may require any public utility, railroad, or other public service corporation owning or operating any installations, structures, equipment, apparatus, appliances or facilities in, upon, under, over, across or along any land or facility where an authority has the right to own, construct, operate or maintain its facilities to remove or relocate such installation, structures, equipment, apparatus, appliances or facilities from their location.
  2. If the owner or operator thereof fails or refuses to remove or relocate them, an authority may proceed to do so.
  3. An authority may provide the necessary new locations or an authority may also acquire the necessary new locations by purchase or otherwise, but not by eminent domain.
  4. An authority shall reimburse the public utility, railroad or other public service corporation, for the cost of relocations which shall be the entire amount paid or incurred by the utility properly attributable thereto after deducting the cost of any increase in the service capacity of the new installations, structures, equipment, apparatus, appliances or facilities and any salvage value derived from the old installations, structures, equipment, apparatus or appliances.

History

(1989, c. 780, s. 1.)

§ 160A-479.16. Advances.

Any member government unit may make advances, from any moneys that may be available for such purpose, in connection with the creation of the authority and to provide for the preliminary expenses of such authority. Any such advances may be repaid to such participating units of local government from the proceeds of the revenue bonds issued by such authority, if capital in nature, or from other available funds of the authority.

History

(1989, c. 780, s. 1.)

§ 160A-479.17. Annexation.

The annexation by a member government which is a city of areas lying outside of the territorial jurisdiction of the authority shall make such annexed area a part of the territorial jurisdiction of the authority, and such area shall be subject to all debts and all obligations thereof.

History

(1989, c. 780, s. 1.)

§ 160A-480: Reserved for future codification purposes.

PART 4. FACILITY AUTHORITIES.

§ 160A-480.1. Short title.

This Part is the "Facility Authority Act" and may be cited by that name.

History

(1995, c. 458, s. 1.)

Opinions of Attorney General

Appointment Prohibition. - The General Assembly did not restrict boards of county commissioners and city councils from appointing their employees, agents or officers, although the General Assembly prohibited these bodies from appointing themselves to a facility authority. See opinion of Attorney General to George B. Daniel, Chairman, Legal Bylaws Committee, The Centennial Authority, 1999 N.C.A.G. 3 (1/28/99).

§ 160A-480.2. Definitions.

The following definitions apply in this Part:

  1. Authority. - A Facility Authority.
  2. Credit facility. - An agreement with a banking institution, an insurance institution, an investment institution, or other financial institution located inside or outside the United States of America that provides for prompt payment, whether at maturity, presentment, or tender for purchase, redemption, or acceleration, of part or all of the principal or purchase price, redemption premium, if any, and interest on a bond or note issued by the Authority and for repayment of the institution.
  3. Member. - A person appointed to a facility authority.
  4. Par formula. - A provision or formula to make periodic adjustments in the interest rate of a bond or note, including:
    1. A provision for an adjustment to keep the purchase price of the bond or note in the open market as close to par as possible.
    2. A provision for an adjustment based on one or more percentages of a prime rate or base rate that may vary or apply for specified periods of time.
    3. Any other provision that does not materially and adversely affect the financial position of the Authority and the marketing of the bonds or notes at a reasonable interest cost to the Authority.
  5. Regional facility. - A facility consisting of an arena, coliseum, or other buildings or both, or areas where sports, fitness, health, recreational, entertainment, or cultural activities can be conducted. The facility may be composed of buildings grouped into complexes or separated from each other and may include ancillary support facilities, such as those for administration, sports science, sports medicine, training, museums, meeting rooms and conference centers, accommodations, parking, and food services. The facility should be designed to attract to the State as many major regional, national, and international tournaments, events, championships, training centers, training camps, and headquarters for the governance of various sports, associations, and events as possible. The regional facility shall be constructed on land owned by the State.

History

(1995, c. 458, s. 1.)

§ 160A-480.3. Creation of Authority; additional membership.

  1. Creation. - An authority may be created only by act of the General Assembly. An authority so created shall be a political subdivision of the State. The territorial jurisdiction of the authority shall be a county authorized by the General Assembly to levy a room occupancy tax and a prepared food and beverage tax, and where both those taxes have been levied.
  2. Membership. - An authority shall have 10 or 21 members. Members shall be chosen for terms as follows:
    1. Five shall be appointed by the General Assembly upon the recommendation of the Speaker of the House of Representatives in accordance with G.S. 120-121, at least one of whom shall be a resident of the territorial jurisdiction of the authority, and at least one other of whom shall have been recommended by the board of trustees of the constituent institution of The University of North Carolina whose main campus is located within the county;
    2. Five shall be appointed by the General Assembly upon the recommendation of the President Pro Tempore of the Senate in accordance with G.S. 120-121, at least one of whom shall be a resident of the territorial jurisdiction of the authority, and at least one other of whom shall have been recommended by the Board of Trustees of the constituent institution of The University of North Carolina whose main campus is located within the county; and
    3. If the territorial jurisdiction of the authority is a county where the main campus of a constituent institution of The University of North Carolina is located, then:
      1. Four members shall be appointed by the board of commissioners of that county, one of whom at the time of appointment is a resident of the municipality with the second largest population in the county, according to the most recent decennial federal census;
      2. Four members shall be appointed by the city council of the city with the largest population in the county, according to the most recent decennial federal census;
      3. Two members shall be appointed jointly by the mayors of all the cities in that county.
      4. The Chancellor of the main campus of a constituent institution of The University of North Carolina within the county, or the Chancellor's designee.
  3. Purpose. - The purpose of an authority is to study, design, plan, construct, own, promote, finance, and operate a regional facility.
  4. Charter and Bylaws. - The act creating an authority and any amendments to it is the Authority's charter. The charter of an authority shall include the name of the Authority. An authority may adopt bylaws. Any bylaw that conflicts with the declared public policy of the State as expressed by law is void and unenforceable. The bylaws may do any one or more of the following:
    1. Limit the powers, duties, and functions that the Authority may exercise and perform.
    2. Prescribe the compensation and allowances not to exceed those provided by G.S. 93B-5, if any, to be paid to the members of the Authority.
    3. Contain rules for the conduct of Authority business and any other matter pertaining to the organization, powers, and functioning of the Authority that the members consider appropriate.
  5. Meetings. - An authority shall meet at a time and place agreed upon by its members. The initial meeting may be called by any four members. At its first meeting, the members shall elect a chairperson and any other officers that the charter may specify or the members may consider advisable. The Authority shall then adopt bylaws for the conduct of its business.
  6. Fiscal Accountability. - An authority is a public authority subject to the provisions of Article 3 of Chapter 159 of the General Statutes.
  7. Conflicts. - If any member, officer, or employee of an Authority shall be:
    1. Interested either directly or indirectly; or
    2. An officer or employee of or have an ownership interest in any firm or corporation, not including units of local government or the Chancellor of the main campus of a constituent institution of The University of North Carolina within the county, or the Chancellor's designee, interested directly or indirectly,
  8. Any authority created under this Part shall be treated as a board for purposes of Chapter 138A of the General Statutes.

Beginning January 1, 1999, a majority of any executive committee, or other committee however termed having supervisory or management authority over the facility to be constructed by the authority, shall consist of authority members appointed under this subsection.

Neither the board of commissioners nor the city council may appoint a member of its board to serve on the authority.

Two of the initial appointments under subdivision (1) of this subsection, two of the initial appointments under subdivision (2) of this subsection, one of the initial appointments under subdivision (3)a. of this subsection, and one of the initial appointments under subdivision (3)b. of this section shall be for terms expiring July 1 of the second year after the year in which the authority is created. The remaining initial appointments shall be for terms expiring July 1 of the fourth year after the year in which the authority is created. The third member appointed by the board of commissioners shall serve a term beginning January 1, 1999, and expiring July 1, 2001, and the fourth member appointed by the board of commissioners shall serve a term beginning January 1, 1999, and expiring July 1, 2003. The third member appointed by the city council shall serve a term beginning January 1, 1999, and expiring July 1, 2001, and the fourth member appointed by the city council shall serve a term beginning January 1, 1999, and expiring July 1, 2003. Of the two appointments made by the General Assembly in 1999 and quadrennially thereafter upon the recommendation of the Speaker of the House of Representatives, one shall be the person recommended by the board of trustees of the constituent institution of The University of North Carolina whose main campus is located within the county. Of the two appointments made by the General Assembly in 1999 and quadrennially thereafter upon the recommendation of the President Pro Tempore of the Senate, one shall be the person recommended by the board of trustees of the constituent institution of The University of North Carolina whose main campus is located within the county. The second member appointed under sub-subdivision (3)c. of this section shall serve an initial term expiring July 1, 2003. Successors shall be appointed in the same manner for four-year terms. A member may be removed by the appointing authority for cause. Vacancies occurring in the membership of the authority shall be filled by the remaining members.

in any contract with that Authority, the interest shall be disclosed to the Authority and shall be set forth in the minutes of the Authority. The member, officer, or employee having an interest shall not participate on behalf of the Authority in the authorization of such contract. Other provisions of law notwithstanding, failure to take any or all actions necessary to carry out the purposes of this subsection do not affect the validity of any bonds or notes issued under this Chapter.

It is not a violation of this subsection for the Chancellor of the main campus of a constituent institution of The University of North Carolina within the county, or the Chancellor's designee, to participate in discussion of or to vote on any matter, including but not limited to the execution of any contract by the Authority, where the matter relates to the interest of a constituent institution of The University of North Carolina within the county.

History

(1995, c. 458, s. 1; 1997-68, s. 1; 2000-181, s. 2.5; 2001-311, ss. 1, 2; 2004-158, ss. 3.1, 3.2, 3.3; 2007-348, s. 43; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.)

Re-codification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled `Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification, in consultation with the State Ethics Commission, the State Board of Elections, the Secretary of State, and the new Bipartisan State Board of Elections and Ethics Enforcement. Pursuant to this authority, the Revisor of Statutes substituted "Articles 5, 6, 7, and 9 of Chapter 163A" for "Chapter 138A" in subsection (h).

Session Laws 2018-146, ss. 3.1(a), (b) and 6.1 repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the change to the reference in subsection (h).

Effect of Amendments. - Session Laws 2004-158, ss. 3.1, 3.2, 3.3, effective August 2, 2004, in subsection (b), substituted "10 or 21" for "eight or 19" in the introductory paragraph and substituted "Five" for "Four" in subdivisions (b)(1) and (b)(2).

Session Laws 2007-348, s. 43, effective August 9, 2007, added subsection (h).

Opinions of Attorney General

Participation by Local Government Employees. - The managers and attorneys of a local city and county appointed to the Centennial Authority could participate in discussions and votes affecting their employers, the city and county, because the General Assembly specifically excluded from the definition of "conflicts" an officer or employee of "units of local government." See opinion of Attorney General to George B. Daniel, Chairman, Legal Bylaws Committee, The Centennial Authority, 1999 N.C.A.G. 3 (1/28/99).

Filling Vacancies. - If a member of the Centennial Authority who is holding over beyond the expiration of his term of office resigns, a vacancy is created which is filled as provided in subsection (b) of this section "by the remaining members" of the Authority's governing board. See opinion of Attorney General to Mr. Jeffrey P. Gray, 2003 N.C.A.G. 11 (10/21/03).

§ 160A-480.4. Powers of an Authority.

An Authority shall have all of the powers necessary or convenient to carry out and effectuate the purposes and provisions of this Part. These powers may include any one or more of the following:

  1. To apply for, accept, receive, and dispense funds and grants made available to it by the State or any of its agencies or political subdivisions, the United States, any member unit, or any private entity.
  2. To study, design, plan, construct, own, and operate a regional facility.
  3. To employ consultants and employees as may be required in the judgment of the Authority, to fix and pay their compensation from funds available to the Authority. In employing consultants, the Authority shall promote participation by minority businesses.
  4. To contract with any public or private entity, and The University of North Carolina or any constituent institution of The University of North Carolina may enter into any such contract if the function is one The University of North Carolina or any constituent institution of The University of North Carolina could undertake separately.
  5. To adopt bylaws for the regulation of its affairs and the conduct of its business, and to adopt rules in connection with the performance of its functions and duties.
  6. To adopt an official seal.
  7. To acquire and maintain administrative offices.
  8. To sue and be sued in its own name, and to plead and be impleaded.
  9. To receive, administer, and comply with the conditions and requirements respecting any gift, grant, or donation of any property or money.
  10. To acquire by purchase, lease, gift, or otherwise, or to obtain options for the acquisition of, any real or personal property or interest therein.
  11. To sell, lease, exchange, transfer, or otherwise dispose of, or to grant options for any of these purposes with respect to, any real or personal property or interest therein.
  12. Subject to the provisions of this Part, to pledge, assign, mortgage, or otherwise grant a security interest in any real or personal property or interest therein, including a leasehold interest, including the right and power to pledge, assign, or otherwise grant a security interest in any money, rents, charges, or other revenues and any proceeds derived by the Authority from any and all sources.
  13. Subject to the provisions of this Part, to borrow money to finance part or all of a regional facility, to issue revenue bonds or notes, to refund any revenue bonds or notes issued by the Authority, or to provide funds for other corporate purposes of the Authority.
  14. To use officers, employees, agents, and facilities of units of local government or constituent institutions of The University of North Carolina for purposes and upon the terms that are mutually agreeable between the Authority and the unit or institution.
  15. To develop and make data, plans, information, surveys, and studies of public facilities within the area where constituent institutions of The University of North Carolina are located, and to prepare and make recommendations in regard thereto.
  16. To set and collect fees and charges for the use of the regional facility.
  17. To pay for services rendered by underwriters, financial consultants, or bond attorneys in connection with the issuance of revenue bonds or notes of the Authority out of the proceeds of the bonds or notes. In employing consultants, underwriters, attorneys, and others, the Authority shall promote participation by minority businesses.
  18. To purchase or finance real or personal property in the manner provided for cities and counties under G.S. 160A-20.

History

(1995, c. 458, s. 1.)

§ 160A-480.5. Dissolution of Authority.

The General Assembly may dissolve an authority if all bonds or notes issued by the Authority and all other obligations incurred by the Authority have been fully paid or satisfied. In such event any assets of the Authority shall become the property of the county authorized to levy a room occupancy and prepared food and beverage tax to be distributed to the Authority.

History

(1995, c. 458, s. 1.)

§ 160A-480.6. Construction contracts.

Article 8 of Chapter 143 of the General Statutes applies to a construction contract of an Authority. An Authority may solicit bids on the basis of separate specifications for the branches or work described in G.S. 143-128(a) and on a single-prime contract basis and accept the lowest bid.

History

(1995, c. 458, s. 1.)

§ 160A-480.7. Seating at regional facility arena.

The Authority shall ensure that at least fifty percent (50%) of the seats for an athletic event that is sponsored by a constituent institution of The University of North Carolina whose principal campus is in the territorial jurisdiction of the authority and is held at the arena of the regional facility are made available to students at that constituent institution and members of the general public.

History

(1995, c. 458, s. 1.)

§ 160A-480.8. Bonds.

  1. Terms. - An Authority may provide for the issuance, at one time or from time to time, of bonds or notes to carry out its corporate purposes. The principal of, the interest on, and any premium payable upon the redemption of the bonds or notes shall be payable from the proceeds of bonds or renewal notes, or, in the event bond or renewal note proceeds are not available, from any available revenues or other funds provided for this purpose. The bonds or notes of each issue shall be dated and may be made redeemable prior to maturity at the option of the Authority or otherwise, at one or more prices, on one or more dates, and upon the terms and conditions set by the Authority. The bonds or notes may also be made payable from time to time on demand or tender for purchase by the owner upon terms and conditions set by the Authority. Notes and bonds shall mature at times determined by the Authority, not exceeding 40 years from the date of issue. The Authority shall determine the form and the manner of execution of the bonds or notes, and shall fix the denomination of the bonds or notes and the place of payment of principal and interest. In case an officer whose signature or a facsimile of whose signature appears on any bonds or notes ceases to be an officer before the delivery of the bond or note, the signature or facsimile shall nevertheless be valid and sufficient for all purposes the same as if the officer had remained in office until delivery. The Authority may also provide for the authentication of the bonds or notes by a trustee or fiscal agent.
  2. Use of Proceeds. - The proceeds of a bond or note shall be used solely for the purposes for which the bond or note was issued and shall be disbursed in accordance with the resolution authorizing the issuance of a bond or note and with any trust agreement securing the bond or note. If the proceeds of a bond or note of any issue, by reason of increased construction costs or error in estimates or otherwise, is less than the cost, additional bonds or notes may in like manner be issued to provide the amount of the deficiency.
  3. Security. - Bonds or notes issued by an Authority may be secured in one or more of the following ways:
    1. By the revenues of the regional facility.
    2. By security interests in real or personal property or interest therein, including a leasehold interest, acquired with the proceeds of the bonds or notes or improved with the proceeds of the bonds or notes as described in subsection (e) of this section.
    3. With the approval of the county levying the tax, by receipts, if any, from a room occupancy and prepared food and beverage tax levied by a county and distributed to the Authority; provided, however, that any agreement or undertaking by a county to distribute receipts, if any, from the tax to the Authority may not obligate the county to exercise any power of taxation, or restrict the ability of the county to repeal the tax. However, no action by a county to discontinue, decrease, or repeal a room occupancy tax shall become effective while previously issued bonds or notes secured by receipts from such a tax allocated to an authority by the county remain outstanding.
  4. Revenues. - The Authority may pledge to the payment of its revenue bonds or notes the revenues from the regional facility, including revenues from improvements, betterments, or extensions to the facility. The Authority may establish, maintain, revise, charge, and collect such rates, fees, rentals, or other charges for the use, services, and facilities of or furnished by a regional facility and provide methods of collection of and penalties for nonpayment of these rates, fees, rentals, or other charges. Except as otherwise permitted, the rates, fees, rentals, and charges fixed and charged shall be in an amount that will produce sufficient revenues, with any other available funds, to meet the maintenance and operation expenses of the regional facility as well as any improvements and renewals and replacements to the facility, including reserves to pay the principal, interest, and redemption premium due, if any, on any bonds or notes secured by the facility, and to fulfill the terms of any agreements made by the Authority with the holders of bonds or notes secured by revenues of the facility.
  5. Security Interests. - Bonds or notes may be secured by security interests in any real or personal property or interest therein, including a leasehold interest, either acquired with the proceeds of bonds or notes, or upon which improvements are provided from the proceeds of bonds or notes. The security interest may cover all real and personal property acquired or improved or any portion of the property, except that if the property subject to the security interest is a leasehold interest, the security interest is not to the fee simple title. The Authority is authorized to enter into deeds of trust, mortgages, security agreements, and similar instruments as shall be necessary to carry out the powers in this subsection. Bonds or notes may also be secured by security interests in any real or personal property conveyed to the Authority.
  6. Issuance. - The issuance of bonds or notes of the Authority is subject to the approval of the Local Government Commission. Upon the filing with the Local Government Commission of a resolution of the Authority requesting that its bonds or notes be sold, the Commission shall determine the manner in which the bonds or notes will be sold and the price or prices at which the bonds or notes will be sold. In determining whether to approve a proposed bond or note issue of the Authority, the Local Government Commission shall consider the criteria for approval of revenue bonds under G.S. 159-86. The Local Government Commission shall approve the proposed issue if it determines the bond or note issue will meet such criteria and will effect the purposes of this Part. With the approval of the Authority, the Local Government Commission shall sell the bonds or notes either at public or private sale in the manner and at the prices determined to be in the best interests of the Authority and to effect the purposes of this Part.
  7. Certification of Approval. - Each bond or note that is represented by an instrument shall contain a statement signed by the Secretary of the Local Government Commission, or an assistant designated by the Secretary, certifying that the issuance of the bond or note has been approved under this Part. The signature may be a manual signature or a facsimile signature, as determined by the Local Government Commission. Each bond or note that is not represented by an instrument shall be evidenced by a writing relating to the obligation that identifies the obligation or the issue of which it is a part, contains the signed statement certifying approval of the Local Government Commission that is required on an instrument, and is filed with the Local Government Commission. A certification of approval by the Local Government Commission is conclusive evidence that a bond or note complies with this Part.
  8. State Pledge. - The State pledges to the holder of a bond or note issued under this Part that, as long as the bond or note is outstanding and unpaid, the State will not limit or alter the power the Authority had when the bond or note was issued in a way that impairs the ability of the Authority to produce revenues sufficient with other available funds to do all of the following:
    1. Maintain and operate the facility for which the bond or note was issued.
    2. Pay the principal of, interest on, and redemption premium, if any, of the bond or note.
    3. Fulfill the terms of an agreement with the holder.
  9. Investment Securities. - All bonds and notes and interest coupons, if any, issued under this Part are made investment securities within the meaning of and for all the purposes of Article 8 of the Uniform Commercial Code, as enacted in Chapter 25 of the General Statutes.
  10. Details of Bonds or Notes. - In fixing the details of bonds or notes, the Authority may provide that the bonds or notes may:
    1. Be payable from time to time on demand or tender for purchase by the owner of the bond or note if a credit facility supports the bond or note, unless the Local Government Commission specifically determines that a credit facility is not required because the absence of a credit facility will not materially and adversely affect the financial position of the Authority and the marketing of the bonds or notes at a reasonable interest cost to the Authority.
    2. Be additionally supported by a credit facility.
    3. Be made subject to redemption or a mandatory tender for purchase prior to maturity.
    4. Be capital appreciation bonds.
    5. Bear interest at a rate or rates that may vary, including variations permitted pursuant to a par formula.
    6. Be made the subject of a remarketing agreement whereby an attempt is made to remarket the bonds or notes to new purchasers prior to their presentment for payment to the provider of the credit facility or to the Authority.
  11. Basis of Investment. - In connection with or incidental to the acquisition or carrying of any investment relating to bonds, program of investment relating to bonds, or carrying of bonds, the Authority may, with the approval of the Local Government Commission, enter into a contract to place the investment or obligation of the Authority, as represented by the bonds, investment, or program of investment and the contract or contracts, in whole or in part, on an interest rate, currency, cash flow, or other basis, including the following:
    1. Interest rate swap agreements, currency swap agreements, insurance agreements, forward payment conversion agreements, and futures.
    2. Contracts providing for payments based on levels of, or changes in, interest rates, currency exchange rates, or stock or other indices.
    3. Contracts to exchange cash flows or a series of payments.
    4. Contracts to hedge payment, currency, rate, spread, or similar exposure, including interest rate floors or caps, options, puts, and calls.

Bonds or notes may be issued under this Part without obtaining, except as otherwise expressly provided in this Part, the consent of any department, division, commission, board, body, bureau, or other agency of the State or of a political subdivision of the State, and without any other proceedings or conditions except as specifically required by this Part or the provisions of the resolution authorizing the issuance of, or any trust agreement securing, the bonds or notes.

Prior to the preparation of definitive bonds, the Authority may issue interim receipts or temporary bonds exchangeable for definitive bonds when the bonds have been executed and are available for delivery. The Authority may also provide for the replacement of any bonds or notes which have been mutilated, destroyed, or lost.

The security for the bonds or notes shall be specified in the resolution or trust instrument authorizing the bonds or notes.

In the event the Authority fails to perform its obligations with respect to the bonds or notes and foreclosure or similar sale of property subject to a security interest occurs, a deficiency judgment may not be rendered against the Authority except to the extent that the deficiency is payable from either revenues from the regional facility or from any revenues dedicated by act of the General Assembly to the Authority.

The State further pledges to the holder of a bond or note issued under this Part that the State will not impair the rights and remedies of the holder concerning the bond or note.

The Authority may enter a contract of this type in connection with, or incidental to, entering into or maintaining any agreement that secures bonds. A contract shall contain the payment, security, term, default, remedy, and other terms and conditions the Board considers appropriate. The Authority may enter a contract of this type with any person after giving due consideration, where applicable, of the person's creditworthiness as determined by a rating by a nationally recognized rating agency or any other criteria the Board considers appropriate. In connection with, or incidental to, the issuance or carrying of bonds, or the entering of any contract described in this subsection, the Authority may enter into credit enhancement or liquidity agreements, with payment, interest rate, termination date, currency, security, default, remedy, and other terms and conditions as the Authority determines. Proceeds of bonds and any moneys set aside and pledged to secure payment of bonds or any of the contracts entered into under this subsection may be pledged to and used to service any of the contracts entered into under this section.

History

(1995, c. 458, s. 1; 1997-68, s. 2.)

§ 160A-480.9. Trust agreement or resolution.

In the discretion of the Authority, any bonds or notes issued under this Part may be secured by a trust instrument between the Authority and a bank or trust company or individual within the State, or a bank or a trust company outside the State, as trustee. The trust instrument or the resolution of the Authority authorizing the issuance of bonds or notes may pledge and assign all or any part of the revenues, funds, and other property provided for the security of the bonds, including proceeds from the sale of any project, or part thereof, insurance proceeds, and condemnation awards, and may convey or mortgage property to secure a bond issue as provided in this Part.

The revenues and other funds derived from the project, except any part thereof that may be necessary to provide reserves therefor, if any, shall be set aside at regular intervals as may be provided in the resolution or trust instrument in a sinking fund which may be thereby pledged to, and charged with, the payment of the principal of and the interest on the bonds or notes as they become due and of the redemption price or the purchase price of bonds retired by call or purchase as therein provided. This pledge shall be valid and binding from the time the pledge is made. The revenues so pledged and thereafter received by the Authority shall immediately be subject to the lien of the pledge without any physical delivery thereof or further act, and the lien of the pledge shall be valid and binding as against all parties having claims of any kind in tort, contract, or otherwise against the Authority, irrespective of whether the parties have notice of the pledge. The use and disposition of money to the credit of such sinking fund shall be subject to the provisions of the resolution or trust instrument. The resolution or trust instrument may contain provisions for protecting and enforcing the rights and remedies of the bondholders as may be reasonable and proper and not in violation of law, including, without limitation, any one or more of the following:

  1. Acceleration of all amounts payable under the resolution or trust instrument.
  2. Appointment of a receiver to manage the project and any other property mortgaged or assigned as security for the bonds.
  3. Foreclosure and sale of the project and any other property mortgaged or assigned as security for the bonds.
  4. Rights to bring and maintain other actions at law or in equity as may appear necessary or desirable to collect the amounts payable under, or to enforce the covenants made in, the security document.

It shall be lawful for any bank or trust company incorporated under the laws of this State which may act as depository of the proceeds of bonds, revenues, or other funds provided under this Part to furnish such indemnifying bonds or to pledge such securities as may be required by the Authority. All expenses incurred in carrying out the provisions of the resolution or trust instrument may be treated as a part of the cost of the project in connection with which bonds or notes are issued or as an expense of administration of the project.

The Authority may subordinate bonds or notes to any prior, contemporaneous, or future securities or obligations or lien, mortgage, or other security interest securing bonds or notes.

Any owner of bonds or notes issued under the provisions of this Part or any coupons appertaining thereto, and the trustee under any trust agreement securing or resolution authorizing the issuance of such bonds or notes, except to the extent the rights given may be restricted by the trust agreement or resolution, may either at law or in equity, by suit, action, mandamus, or other proceeding, protect and enforce any and all rights under the laws of the State or granted hereunder or under the trust agreement or resolution, or under any other contract executed by the Authority pursuant to this Chapter; and may enforce and compel the performance of all duties required by this Part or by the trust agreement or resolution by the Authority or by any officer of the Authority.

History

(1995, c. 458, s. 1.)

§ 160A-480.10. Trust funds.

Notwithstanding any other provision of law to the contrary, all money received pursuant to the authority of this Part, whether as proceeds from the sale of bonds or notes or as revenues, shall be deemed to be trust funds to be held and applied solely as provided in this Part. The resolution authorizing the issuance of, or the trust agreement securing, any bonds or notes may provide that any of these moneys may be temporarily invested and reinvested pending their disbursement and shall provide that any officer with whom, or any bank or trust company with which, the moneys shall be deposited shall act as trustee of the moneys and shall hold and apply the moneys for the purpose hereof, subject to any regulations this Part and the resolution or trust agreement may provide. Any of these moneys may be invested as provided in G.S. 159-30, as it may be amended from time to time.

History

(1995, c. 458, s. 1.)

§ 160A-480.11. Faith and credit of State and units of local government not pledged.

Bonds or notes issued under this Part shall not constitute a debt secured by a pledge of the faith and credit of the State or a political subdivision of the State and shall be payable solely from the revenues, property, and other funds pledged for their payment. The bonds or notes issued by an Authority shall contain a statement that the Authority is obligated to pay the bond or note or the interest on the bond or note only from the revenues, property, or other funds pledged for their payment and that neither the faith and credit nor the taxing power of the State or any political subdivision of the State is pledged as security for the payment of the principal of or the interest or premium on the bonds or notes.

History

(1995, c. 458, s. 1.)

§ 160A-480.12. Revenue refunding bonds.

The Authority may issue refunding bonds or notes for one or more of the following purposes:

  1. Refunding any outstanding bonds or notes issued under this Part, including any redemption premium on the bonds or notes and any interest accrued or to accrue to the date of redemption.
  2. Constructing improvements, additions, extensions or enlargements of the project, or projects in connection with which the bonds or notes to be refunded have been issued.
  3. Paying all or any part of the cost of any additional project or projects.

Refunding bonds or notes shall be issued in accordance with the same procedures and requirements as bonds or notes. Refunding bonds issued under this section may be sold or exchanged for outstanding bonds or notes issued under this Part and, if sold, the proceeds of the refunding bonds may be applied, in addition to any authorized purposes, to the purchase, redemption, or payment of outstanding bonds or notes.

Pending the application of the proceeds of refunding bonds, with any other available funds, to the payment of the principal of and accrued interest and any redemption premium on the bonds or notes being refunded, and, if so provided or permitted in securing the same, to the payment of any interest on such refunding bonds and any expenses in connection with such refunding, such proceeds may be invested in direct obligations of, or obligations the principal of and the interest on which are unconditionally guaranteed by, the United States of America which shall mature or which shall be subject to redemption by the holder thereof, at the option of such holder, not later than the respective dates when the proceeds, together with the interest accruing thereon, will be required for the purposes intended.

History

(1995, c. 458, s. 1.)

§ 160A-480.13. Bonds eligible for investment.

Bonds and notes issued under this Part are hereby made securities in which all public officers, agencies, and public bodies of the State and its political subdivisions, all insurance companies, trust companies, investment companies, banks, savings banks, building and loan associations, credit unions, pension or retirement funds, other financial institutions engaged in business in the State, executors, administrators, trustees, and other fiduciaries may properly and legally invest funds, including capital in their control or belonging to them. These bonds or notes are hereby made securities that may properly and legally be deposited with and received by any officer or agency of the State or political subdivision of the State for any purpose for which the deposit of bonds, notes, or obligations of the State or any political subdivision of the State is authorized by law. This section does not apply to any State pension or retirement fund or a pension or retirement fund of a political subdivision of the State.

History

(1995, c. 458, s. 1.)

§ 160A-480.14. Taxation of revenue bonds.

Any bonds and notes issued by the Authority under the provisions of this Part shall be exempt from all State, county, and municipal taxation or assessment, direct or indirect, general or special, whether imposed for the purpose of general revenue or otherwise, excluding income taxes on the gain from the transfer of bonds and notes, and franchise taxes. The interest on bonds and notes issued by an Authority under the provisions of this Part shall not be subject to taxation as to income.

History

(1995, c. 458, s. 1; 2015-264, s. 16(k).)

Editor's Note. - Session Laws 2015-264, s. 91.7, is a severability clause.

Effect of Amendments. - Session Laws 2015-264, s. 16(k), effective October 1, 2015, deleted "inheritance and gift taxes" preceding "income taxes on the gain" near the middle of the first sentence.

§ 160A-480.15. Members and officers not liable.

No member or officer of an Authority shall be subject to any personal liability or accountability by reason of the execution of any bonds or notes or the issuance of any bonds or notes.

History

(1995, c. 458, s. 1.)

§ 160A-481: Reserved for future codification purposes.

PART 5. WATER AND WASTEWATER SYSTEMS.

§ 160A-481.1. Definitions.

The words defined in this section shall have the meanings indicated when used in this Part:

  1. Local government unit. - Defined in G.S. 159G-20 and G.S. 160A-460.
  2. Undertaking. - Defined in G.S. 160A-460.

History

(2020-79, s. 3.)

Editor's Note. - Session Laws 2020-79, s. 14, made this Part effective July 1, 2020.

§ 160A-481.2. Interlocal cooperation authorized.

Interlocal cooperation, as provided in Part 1 of this Article, is authorized between any local government units in this State for any purpose. When two or more local government units agree to contract for one or more undertakings under this Part, the provisions of Part 1 of this Article apply.

History

(2020-79, s. 3.)

§§ 160A-482 through 160A-484: Reserved for future codification purposes.

ARTICLE 21. Miscellaneous.

Sec.

§ 160A-485. Waiver of immunity through insurance purchase.

  1. Any city is authorized to waive its immunity from civil liability in tort by the act of purchasing liability insurance. Participation in a local government risk pool pursuant to Article 23 of General Statute Chapter 58 shall be deemed to be the purchase of insurance for the purposes of this section. Immunity shall be waived only to the extent that the city is indemnified by the insurance contract from tort liability. No formal action other than the purchase of liability insurance shall be required to waive tort immunity, and no city shall be deemed to have waived its tort immunity by any action other than the purchase of liability insurance. If a city uses a funded reserve instead of purchasing insurance against liability for wrongful death, negligence, or intentional damage to personal property, or absolute liability for damage to person or property caused by an act or omission of the city or any of its officers, agents, or employees acting within the scope of their authority and the course of their employment, the city council may adopt a resolution that deems the creation of a funded reserve to be the same as the purchase of insurance under this section. Adoption of such a resolution waives the city's governmental immunity only to the extent specified in the council's resolution, but in no event greater than funds available in the funded reserve for the payment of claims.
  2. An insurance contract purchased pursuant to this section may cover such torts and such officials, employees, and agents of the city as the governing board may determine. The city may purchase one or more insurance contracts, each covering different torts or different officials, employees, or agents of the city. An insurer who issues a contract of insurance to a city pursuant to this section thereby waives any defense based upon the governmental immunity of the city, and any defense based upon lack of authority for the city to enter into the contract. Each city is authorized to pay the lawful premiums for insurance purchased pursuant to this section.
  3. Any plaintiff may maintain a tort claim against a city insured under this section in any court of competent jurisdiction. As to any such claim, to the extent that the city is insured against such claim pursuant to this section, governmental immunity shall be no defense. Except as expressly provided herein, nothing in this section shall be construed to deprive any city of any defense to any tort claim lodged against it, or to restrict, limit, or otherwise affect any defense that the city may have at common law or by virtue of any statute. Nothing in this section shall relieve a plaintiff from any duty to give notice of his claim to the city, or to commence his action within the applicable period of time limited by statute. No judgment may be entered against a city in excess of its insurance policy limits on any tort claim for which it would have been immune but for the purchase of liability insurance pursuant to this section. No judgment may be entered against a city on any tort claim for which it would have been immune but for the purchase of liability insurance pursuant to this section except a claim arising at a time when the city is insured under an insurance contract purchased and issued pursuant to this section. If, in the trial of any tort claim against a city for which it would have been immune but for the purchase of liability insurance pursuant to this section, a verdict is returned awarding damages to the plaintiff in excess of the insurance limits, the presiding judge shall reduce the award to the maximum policy limits before entering judgment.
  4. Except as otherwise provided in this section, tort claims against a city shall be governed by the North Carolina Rules of Civil Procedure. No document or exhibit which relates to or alleges facts as to the city's insurance against liability shall be read, exhibited, or mentioned in the presence of the trial jury in the trial of any claim brought pursuant to this section, nor shall the plaintiff, his counsel, or anyone testifying in his behalf directly or indirectly convey to the jury any inference that the city's potential liability is covered by insurance. No judgment may be entered against the city unless the plaintiff waives his right to a jury trial on all issues of law or fact relating to insurance coverage. All issues relating to insurance coverage shall be heard and determined by the judge without resort to a jury. The jury shall be absent during all motions, arguments, testimony, or announcement of findings of fact or conclusions of law with respect to insurance coverage. The city may waive its right to have issues concerning insurance coverage determined by the judge without a jury, and may request a jury trial on these issues.
  5. Nothing in this section shall apply to any claim in tort against a city for which the city is not immune from liability under the statutes or common law of this State.

History

(1951, c. 1015, ss. 1-5; 1971, c. 698, s. 1; 1975, c. 723; 1985 (Reg. Sess., 1986), c. 1027, s. 27; 2003-175, s. 1.)

Cross References. - As to provision that no local act, including city charters, shall require notice to a local unit of government of any claim against it and prohibit suit if such notice is not given, see G.S. 1-539.16.

Editor's Note. - The Rules of Civil Procedure, referred to in this section, are found in G.S. 1A-1.

Session Laws 2003-175, s. 3, provides: "Section 1 of Chapter 980 of the 1988 Session Laws and Section 2 of S.L. 1998-200, as amended by S.L. 2002-79, are repealed, but any resolution adopted under those sections and still effective on the effective date of this act shall continue to be valid as if they were adopted under G.S. 153A-435(a) or G.S. 160A-485(a) as amended by this act."

Legal Periodicals. - For article, "Statutory Waiver of Municipal Immunity upon Purchase of Liability Insurance in North Carolina and the Municipal Liability Crisis," see 4 Campbell L. Rev. 41 (1981).

For survey of 1981 tort law, see 60 N.C.L. Rev. 1465 (1982).

For comment on the need for reform in North Carolina of local government sovereign immunity, see 18 Wake Forest L. Rev. 43 (1982).

For note, "North Carolina's New AIDS Discrimination Protection: Who Do They Think They're Fooling?," see 12 Campbell L. Rev. 475 (1990).

For comment, "Waiving Local Government Immunity in North Carolina: Risk Management Programs Are Insurance," see 27 Wake Forest L. Rev. 709 (1992).

For note, "Municipal Liability for Negligent Inspections in Sinning v. Clark - A 'Hollow' Victory for the Public Duty Doctrine," see 18 Campbell L. Rev. 241 (1996).

For survey of 1996 developments in tort law, see 75 N.C.L. Rev. 2468 (1997).

For note, "Searching for Limits on a Municipality's Retention of Governmental Immunity," see 76 N.C.L. Rev. 269 (1997).

For comment, " 'Inevitable Inequities:' The Public Duty Doctrine and Sovereign Immunity in North Carolina," see 28 Campbell L. Rev. 271 (2006).

For article, "Down the Drain: How North Carolina Municipalities Lost Immunity for Storm Drains in Jennings v. Fayetteville," see 88 N.C.L. Rev. 2272 (2010).

CASE NOTES

Editor's Note. - Some of the cases cited below were decided under former G.S. 160-191.1 to 160-191.5.

Misleading Internal Reference. - The reference to Article 39 of Chapter 58, which formerly appeared in subsection (a) of this section, should refer to Article 23 of Chapter 58. Blackwelder v. City of Winston-Salem, 332 N.C. 319, 420 S.E.2d 432 (1992).

Statutory Intent. - This statute was not meant to abrogate any statutory defenses available to a municipality. Askew Kawasaki, Inc. v. City of Elizabeth City, 124 N.C. App. 453, 477 S.E.2d 85 (1996).

Municipality's Immunity Under Common-Law Rule. - Prior to legislative enactment of these provisions, the common-law rule of governmental immunity prevailed in North Carolina. Under this common-law rule a municipality was not liable for the torts of its employees or agents committed while performing a governmental function. Galligan v. Town of Chapel Hill, 276 N.C. 172, 171 S.E.2d 427 (1970); Town of Hillsborough v. Smith, 10 N.C. App. 70, 178 S.E.2d 18 (1970), cert. denied, 277 N.C. 727, 178 S.E.2d 831 (1971).

Except where waived under authority of statute, the common-law rule of governmental immunity is still the law in North Carolina. Town of Hillsborough v. Smith, 10 N.C. App. 70, 178 S.E.2d 18 (1970), cert. denied, 277 N.C. 727, 178 S.E.2d 831 (1971).

In the absence of statutory authority, a municipality has no power to waive its governmental immunity. Galligan v. Town of Chapel Hill, 276 N.C. 172, 171 S.E.2d 427 (1970).

A municipal corporation may not waive or contract away its governmental immunity in the absence of legislative authority for such action. Town of Hillsborough v. Smith, 10 N.C. App. 70, 178 S.E.2d 18 (1970), cert. denied, 277 N.C. 727, 178 S.E.2d 831 (1971).

Waiver to the Extent of Coverage. - Where a municipal corporation procured liability insurance on a vehicle used in the operation of a chemical fogging machine, it waived its governmental immunity for the negligent operation of the vehicle to the extent of the amount of the liability insurance. White v. Mote, 270 N.C. 544, 155 S.E.2d 75 (1967).

In the absence of some affirmative action by a municipality, the purchase of liability insurance will constitute a waiver of its governmental immunity to the extent of the insurance policy so obtained. Galligan v. Town of Chapel Hill, 276 N.C. 172, 171 S.E.2d 427 (1970).

A city waives its immunity from civil liability in tort by purchasing liability insurance. However, immunity is waived only to the extent that the city is indemnified by the insurance contract. Gordon v. Hartford Accident & Indem. Co., 576 F. Supp. 203 (W.D.N.C. 1983), aff'd, 740 F.2d 961 (4th Cir. 1984).

To the extent a city does not purchase liability insurance or participate in a local government risk, a city generally retains immunity from civil liability in tort. Young v. Woodall, 119 N.C. App. 132, 458 S.E.2d 225 (1995), rev'd on other grounds, 343 N.C. 459, 471 S.E.2d 357 (1996).

Where plaintiffs sufficiently alleged waiver of governmental immunity by alleging that defendants maintained liability insurance, the trial court did not err in denying defendants motion to dismiss. Anderson ex rel. Jerome v. Town of Andrews, 127 N.C. App. 599, 492 S.E.2d 385 (1997).

A municipality may waive governmental immunity by the purchase of liability insurance to the extent that the city or town is indemnified by the insurance contract from liability for the acts alleged. Davis v. Messer, 119 N.C. App. 44, 457 S.E.2d 902 (1995), overruled on other grounds, Willis v. Town of Beaufort, 143 N.C. App. 106, 544 S.E.2d 600 (N.C. Ct. App. 2001).

Defendant town which purchased insurance covering itself and its agents, was deemed to have waived its governmental immunity defense to the extent of its coverage. Willis v. Town of Beaufort, 143 N.C. App. 106, 544 S.E.2d 600 (2001).

Under the doctrine of governmental immunity, a municipality is not liable for the torts of its officers and employees if the torts are committed while they are performing a governmental function, unless it has waived civil tort immunity by purchasing liability insurance; immunity is waived only to the extent that the city or town is indemnified by the insurance contract from liability for the acts alleged. Crosby v. City of Gastonia, 682 F. Supp. 2d 537 (W.D.N.C. Jan. 7, 2010), aff'd, 635 F.3d 634, 2011 U.S. App. LEXIS 4641 (4th Cir. N.C. 2011).

Because a city purchased liability insurance coverage, it waived governmental immunity up to the amount of its general liability policy limits; with the ambiguous language in the exclusionary endorsement, the insurance policy was strictly construed as providing coverage for claims that clearly stated provisions preserving governmental immunity would otherwise bar, and the ambiguous endorsement did not exclude the express coverage the city obtained. Meinck v. City of Gastonia, 263 N.C. App. 414, 823 S.E.2d 459 (2019).

Immunity Not Waived Without Purchase of Insurance. - In the operation of a chemical fogging machine on a street or highway for the purpose of destroying insects, a municipality acts in a governmental capacity in the interest of the public health, and it may not be held liable in tort for injuries resulting therefrom unless it waives its immunity by procuring liability insurance, even though the operation of the machine renders a street or highway hazardous to traffic, since the exception to governmental immunity in failing to keep its streets in a reasonable safe condition relates solely to the maintenance and repair of its streets. Clark v. Scheld, 253 N.C. 732, 117 S.E.2d 838 (1961).

This section provides that the only way a city may waive its governmental immunity is by the purchase of liability insurance. Action by the city under G.S. 160A-167 does not waive immunity. Blackwelder v. City of Winston-Salem, 332 N.C. 319, 420 S.E.2d 432 (1992).

Trial court's denial of the city's motion for summary judgment was affirmed because although the city contended that it was immune from suit under the doctrine of governmental immunity for the claims brought by the mother, and that it had not waived its governmental immunity pursuant to G.S. 160A-485 because it had not purchased liability insurance covering the claims, the mother alleged that the city was negligent in violating G.S. 160A-296, which gave a municipality the authority to regulate the use of its streets and sidewalks and, in addition, imposed a positive duty upon the municipality to keep them in proper repair, in a reasonably safe condition, and free from unnecessary obstructions. G.S. 160A-296(a)(1), (2), and (5). The statute created an exception to the doctrine that a municipality will have immunity from liability for negligence in the performance of a governmental function, and, by reason thereof, the doctrine of governmental immunity had no application to protect a city from liability for a negligent breach of the statutory duties so imposed; moreover, there were genuine issues of material fact as to whether or not the city had actual or implied notice of the obstructions. Beckles-Palomares v. Logan, 202 N.C. App. 235, 688 S.E.2d 758 (2010).

New Resolution Against Waiver of Immunity Not Required Each Time Liability Insurance Acquired or Renewed. - To require a town to adopt a new resolution against waiver of immunity each time it renews a liability insurance policy or acquires a new liability policy would place an unnecessary and useless burden upon the town and impose a condition not provided for in former G.S. 160-191.1 nor contemplated by the General Assembly. Galligan v. Town of Chapel Hill, 276 N.C. 172, 171 S.E.2d 427 (1970).

Waiver as Applied to Agent of Governmental Entity Which Purchased Insurance. - To the extent that defendant town waived its immunity through the purchase of liability insurance, defendant town, and defendant police officer, as sued in his official capacity, were not immune from suit for officer's alleged negligent acts, and summary judgment was properly denied for such claims. Thompson v. Town of Dallas, 142 N.C. App. 651, 543 S.E.2d 901 (2001).

Modification of Immunity as Function of Legislature. - Although the doctrine of sovereign immunity was first adopted in North Carolina by the Supreme Court, this judicial doctrine is firmly established in law today, and by legislation has been recognized by the General Assembly as the public policy of the State. Any further modification or the repeal of the doctrine should come from the General Assembly, not the Supreme Court. Steelman v. City of New Bern, 279 N.C. 589, 184 S.E.2d 239 (1971).

Any change in the doctrine of governmental immunity should come from the General Assembly. Blackwelder v. City of Winston-Salem, 332 N.C. 319, 420 S.E.2d 432 (1992).

This Section Creates Exception to Common-Law Sovereign Immunity. - Under the common law, a municipality is immune from liability for the torts of its officers committed while they were performing a governmental function. However, this section establishes an exception to the common-law rule: Any city is authorized to waive its immunity from civil liability in tort by the act of purchasing liability insurance. Herndon v. Barrett, 101 N.C. App. 636, 400 S.E.2d 767 (1991).

Existence of Immunity Prerequisite for Waiver. - Municipalities in North Carolina have never been immune from civil liability for negligence based upon the failing to keep its streets free of unnecessary obstructions, as in untrimmed shrubs and bushes that obstructed the view of motorists using the streets involved; therefore, in the case at bar, insofar as this case is concerned defendant had no immunity to waive and the insolvency of its insurer did not affect its liability. McDonald v. Village of Pinehurst, 91 N.C. App. 633, 372 S.E.2d 733 (1988).

Public Duty Doctrine Did Not Shield a City Engaged in an Ultrahazardous Activity - The plaintiff stated a claim upon which relief could be granted when he alleged that defendant/city was strictly liable for the injuries which he sustained as a result of defendants' use of dynamite, an ultrahazardous activity. The public duty doctrine did not shield the city from liability for this claim because the protection afforded by the public duty doctrine does not extend to local governmental agencies other than law enforcement agencies engaged in their general duty to protect the public. Hargrove v. Billings & Garrett, Inc., 137 N.C. App. 759, 529 S.E.2d 693 (2000).

Methods of Waiver. - City may waive governmental immunity by the purchase of liability insurance or by joining a local government risk pool. Young v. Woodall, 119 N.C. App. 132, 458 S.E.2d 225 (1995), rev'd on other grounds, 343 N.C. 459, 471 S.E.2d 357 (1996).

This statute explicitly equates participation in a local government risk pool with the purchase of insurance for the purposes of a city's immunity from liability. Lyles v. City of Charlotte, 120 N.C. App. 96, 461 S.E.2d 347 (1995).

Settlement of Claims Does Not Cause Waiver. - Trial court decision denying JNOV to a city, one of its police officers, and its police department was reversed on appeal, because the plaintiff, an arrestee injured in a squad car, failed to prove gross negligence and only showed simple negligence by evidence that the police officer drove 30 to 35 miles above the legal speed limit although he knew that plaintiff was not wearing a seat belt and had to brake suddenly to avoid a collision causing plaintiff to propel into the metal screen in the squad car. City also did not waive governmental immunity by its voluntary settlement with plaintiff since the city had a liability policy and none of the conditions of waiver, as provided by G.S. 160A-485(a), were met. Clayton v. Branson, 170 N.C. App. 438, 613 S.E.2d 259, cert. denied, 360 N.C. 174, 625 S.E.2d 785 (2005).

City Engaging in Proprietary Function Not Immune. - City which operated a natural gas supply utility was engaged in a proprietary function and, therefore, was not immune from liability for any torts which were proximately caused by it in providing this service. Gregory v. City of Kings Mt., 117 N.C. App. 99, 450 S.E.2d 349 (1994).

Waiver of Immunity by Local Agency. - Since cities and counties can waive their immunity by purchasing liability insurance, local agencies of the state such as a county ABC Board can likewise waive their immunity by purchasing such insurance. McNeill v. Durham County ABC Bd., 87 N.C. App. 50, 359 S.E.2d 500 (1987), modified on other grounds, 322 N.C. 425, 368 S.E.2d 619, rehearing denied, 322 N.C. 838, 371 S.E.2d 278 (1988).

Partial Immunity. - Where city was indemnified for claims in excess of $500,000 through its participation in a local government risk pool any claims for less than that amount were not indemnified because there was a $500,000 deductible for which the city was solely responsibile. Therefore, for claims of $500,000 or less the city retained its immunity. Wall v. City of Raleigh, 121 N.C. App. 351, 465 S.E.2d 551 (1996).

Waiver of Immunity When Engaging in Governmental Function. - Where a municipality engages in a governmental function, governmental immunity is applicable, and a city may waive its immunity from civil tort liability by purchasing liability insurance. Gregory v. City of Kings Mt., 117 N.C. App. 99, 450 S.E.2d 349 (1994).

Waiver of Immunity Does Not Extend to Punitive Damages. - In an action in which a photojournalist asserted claims for false arrest and assault and battery, a city was immune from state law claims for punitive damages because there existed a limited waiver of governmental immunity found in G.S. 160A-485 after a municipality purchased liability insurance did not extend to punitive damages. Harrison v. Chalmers, 551 F. Supp. 2d 432 (M.D.N.C. Mar. 7, 2008).

Housing authority provided a governmental function and was entitled to rely on doctrine of governmental immunity as it related to a personal injury suit brought against it; G.S. 160A-485(a) did not control whether or not the housing authority had legal capacity to waive its immunity by buying insurance, but authority could have accepted liability to the extent of insurance purchased, and the case was therefore remanded since the appellate court was unable to discern whether the trial court's denial of the housing authority's motion to dismiss was premised upon the housing authority's insurance coverage. Evans v. Hous. Auth., 359 N.C. 50, 602 S.E.2d 668 (2004).

Requirement That Risk Shift. - By forming and operating a risk acceptance management corporation the city has not purchased liability insurance, which is the only way, other than by joining a risk pool, that it can waive governmental immunity. Blackwelder v. City of Winston-Salem, 332 N.C. 319, 420 S.E.2d 432 (1992).

Local Government Risk Pool May Exist as to Some Damages While Not to Others. - The City along with two police officers in their official capacities were entitled to partial summary judgment on the grounds of governmental immunity for damages of $ 600,000 or less, and for damages greater than $ 7,000,000 where the City was insured above $ 7,000.000 and where the plaintiff, mistaken for a hit-and-run car operator, failed to show that a fund in which the City participated constituted a local government risk pool. Schlossberg v. Goins, 141 N.C. App. 436, 540 S.E.2d 49 (2000).

City's Individual Operation of Risk Acceptance Management Corporation Did Not Constitute Risk Pool. - Where the city did not join with any other local government unit in the operation of risk acceptance management corporation, it was not participating in a risk pool. Blackwelder v. City of Winston-Salem, 332 N.C. 319, 420 S.E.2d 432 (1992).

Government Immunity Was Not Waived. - City, by organizing risk acceptance management corporation, for the payment of tort claims of $1,000,000 or less against the city, did not waive its governmental immunity for those claims. Blackwelder v. City of Winston-Salem, 332 N.C. 319, 420 S.E.2d 432 (1992).

Summary judgment evidence showed a city did not waive its sovereign immunity, under G.S. 160A-485(a), by purchasing liability insurance or by participating in a local government risk pool, because the city's affidavit stated it had no liability insurance policy in effect at the relevant time, and it was not alleged the city participated in a local government risk pool. Wilkerson v. Norfolk S. Ry. Co., 151 N.C. App. 332, 566 S.E.2d 104 (2002).

Employee's claims of race discrimination, conspiracy to discriminate, and conspiracy to injure were barred by the doctrine of governmental immunity, even though the city had purchased a $5 million dollar excess liability policy with a $3 million self-insured retention, which had to be paid by the city. There was no waiver of immunity based on the purchase of this insurance. Hinson v. City of Greensboro, 232 N.C. App. 204, 753 S.E.2d 822 (2014).

A waiver of governmental immunity does not create a cause of action, etc. where none previously existed. Coleman v. Cooper, 89 N.C. App. 188, 366 S.E.2d 2, cert. denied, 322 N.C. 834, 371 S.E.2d 275 (1988).

A city, while performing a governmental function in the maintenance of a sewer system within its municipal jurisdiction, may not be held liable for any damage arising out of the governmental activity unless it expressly waives its immunity pursuant to this section. Roach v. City of Lenoir, 44 N.C. App. 608, 261 S.E.2d 299 (1980).

Risk Management Corporation. - City did not waive its immunity by organizing a corporation, Risk Management Corporation ("RAMCO"), for the purpose of handling liability claims of $1,000,000.00 or less against the city. Hickman ex rel. Womble v. Fuqua, 108 N.C. App. 80, 422 S.E.2d 449 (1992), cert. denied, 333 N.C. 462, 427 S.E.2d 621 (1993).

Free Sports Instruction. - When a municipality provides free sports instruction, it is acting in a governmental capacity. Hickman ex rel. Womble v. Fuqua, 108 N.C. App. 80, 422 S.E.2d 449 (1992), cert. denied, 333 N.C. 462, 427 S.E.2d 621 (1993).

Extent of Immunity Under Former Law. - Former G.S. 160-191.1 did not authorize or empower a municipality to waive its governmental immunity for injuries to a person proximately caused by its operation of a public library. Seibold v. City of Kinston, 268 N.C. 615, 151 S.E.2d 654 (1966).

Prior to the 1975 amendment, a waiver was authorized only in actions involving the operation of motor vehicles. The waiver did not cover maintenance of playground equipment. Rich v. City of Goldsboro, 282 N.C. 383, 192 S.E.2d 824 (1972).

Municipal Corporation Held Unable to Avoid Liability Under Former Provisions. - If a municipal corporation, having secured liability insurance, injured plaintiff by actionable negligence in the operation of its truck and fogging machine in exercising its legal right to destroy mosquitoes, it could not completely avoid liability to him by reason of the provisions of former G.S. 160-191.1 to 160-191.5. Moore v. Town of Plymouth, 249 N.C. 423, 106 S.E.2d 695 (1959).

Murder of Child Abuse Victims by Father After His Indictment. - Where police officer knew of prior acts of violence committed by father towards child victims, but the children had indicated to him that they were not afraid of their father, and the record was devoid of any evidence which would tend to show that officer ever told plaintiff or her intestates that any kind of protection would be afforded them or that there was any special relationship between the police and plaintiff's intestates, the only connection between the officer and the two young victims being that which arose as a result of the officer's interviews prior to their father's indictment for sexually abusing them, there was no duty on the part of the police department which would give rise to liability involving the city when the father murdered the children. Coleman v. Cooper, 89 N.C. App. 188, 366 S.E.2d 2, cert. denied, 322 N.C. 834, 371 S.E.2d 275 (1988).

In action for defamatory statements allegedly made by police officers, any claim by plaintiff against defendant city was barred by governmental immunity, because defendant city's liability insurance did not cover claims based on the malicious conduct of defendant city's law enforcement employees. However, the individual defendants did not have the benefit of governmental immunity under the circumstances. Shuping v. Barber, 89 N.C. App. 242, 365 S.E.2d 712 (1988).

Insolvency of Insurer Does Not Negate Waiver. - To hold that a waiver of immunity is negated within the meaning of this section by the insured's carrier becoming insolvent would, for no sensible reason, deprive worthy claimants of the legal redress and insurance purchasing municipalities of the indemnification that the statute was enacted to provide. McDonald v. Village of Pinehurst, 91 N.C. App. 633, 372 S.E.2d 733 (1988).

If there had been a waiver under this section it would not have been negated by the insolvency of municipality's insurance carrier, even though by purchasing liability insurance a municipality waives its immunity only to the extent that it is "indemnified by the insurance contract from tort liability," since in this State, behind every licensed liability insurance company that becomes insolvent is an agency created by G.S. 58-48-25 that to some extent and under certain conditions, takes over the insolvent's obligations to indemnify its insureds by paying legally entitled claimants. McDonald v. Village of Pinehurst, 91 N.C. App. 633, 372 S.E.2d 733 (1988).

Allegations of Waiver Required. - If plaintiff does not allege a waiver of immunity by the purchase of insurance, the plaintiff has failed to state a claim against governmental unit or officer or employee. Morrison-Tiffin v. Hampton, 117 N.C. App. 494, 451 S.E.2d 650, appeal dismissed and cert. denied, 339 N.C. 739, 454 S.E.2d 654 (1995).

The purchase of liability insurance must be alleged in order for a complaint to set forth a claim against a governmental entity or its officers or employees in their official capacities. Houpe v. City of Statesville, 128 N.C. App. 334, 497 S.E.2d 82, cert. denied, 348 N.C. 72, 505 S.E.2d 871 (1998).

Defendant/town and its employee were entitled to immunity from plaintiffs' suit for negligence where woman, who was injured by a garbage truck, and her husband failed to allege the waiver of liability through the purchase of insurance, and the pleadings failed to state clearly in which capacity, individually or officially, the employee was being sued. Reid v. Town of Madison, 137 N.C. App. 168, 527 S.E.2d 87 (2000).

Superior Court Jurisdiction. - Where sovereign immunity is waived by the purchase of liability insurance, subject matter jurisdiction is statutorily vested in the superior court. Meyer v. Walls, 122 N.C. App. 507, 471 S.E.2d 422 (1996), aff'd in part and rev'd in part, 347 N.C. 97, 489 S.E.2d 880 (1997).

Governmental Immunity Not for Public Officer. - Where a municipality waived its sovereign immunity by purchasing liability insurance, public officers were not entitled to the defense of governmental immunity, at least as to the extent of coverage purchased by the municipality. Moore v. Evans, 124 N.C. App. 35, 476 S.E.2d 415 (1996).

Plaintiff's Failure to Execute Release as Required by City. - Plaintiff's survivor was not entitled to recover damages against a city based on the city's limited waiver of immunity by purchasing insurance pursuant to G.S. 160A-485 because the plaintiff failed to execute a release in favor of the city as required by the city's resolution for waiver of immunity or accept its check for $18,325 from the city's self-funded reserve for claims. Therefore, plaintiff failed to trigger the city's waiver of immunity. Arrington v. Martinez, 215 N.C. App. 252, 716 S.E.2d 410 (2011).

Each termination was separate claim subject to insurance cap. - In three former police officers' action against a town, town manager, and police chief, alleging wrongful termination for reporting misconduct to the State, the district court erred in finding that governmental immunity limited the town's aggregate liability to $1 million under its policy because each wrongful termination was a separate claim subject to the $1 million cap. Hunter v. Town of Mocksville, 897 F.3d 538 (4th Cir. 2018).

Illustrative Cases. - Plaintiffs' allegation that town had valid and enforceable liability insurance covering the full dollar amount of claims asserted against it was sufficient to withstand the defense of governmental immunity. Davis v. Messer, 119 N.C. App. 44, 457 S.E.2d 902 (1995), overruled on other grounds, Willis v. Town of Beaufort, 143 N.C. App. 106, 544 S.E.2d 600 (N.C. Ct. App. 2001).

Where city was a participant in a local government risk pool on the date of employee's death it thereby waived the right to assert governmental immunity in bar to plaintiff's claim. Lyles v. City of Charlotte, 120 N.C. App. 96, 461 S.E.2d 347 (1995).

When police officer's horse stepped on plaintiff's foot, and the officer was assigned to patrol fair in her capacity as a member of the Special Operations Division, Mounted Patrol Unit, and was responding to a fellow officer's radio call for assistance, the city and officer, in her official capacity, were immune from suit under the doctrine of governmental immunity for damages of $250,000 or less; however, to the extent plaintiff's claim exceeded $250,000, the city and officer were not entitled to the defense of governmental immunity. Jones v. Kearns, 120 N.C. App. 301, 462 S.E.2d 245 (1995).

The city did not waive governmental immunity by participating in a local government risk pool because the "Fund" in which the city participated: (1) failed to cover the plaintiffs' claims, (2) required reimbursement, (3) two members of the fund were not "local governments," (4) no notice was given to the commissioner of insurance that the participating entities intended to organize and operate a risk pool pursuant to statute, and (5) the "Fund" did not contain a provision for a system or program of loss control as required by G.S. 58-23-5. Dobrowolska v. Wall, 138 N.C. App. 1, 530 S.E.2d 590 (2000).

City did not waive its governmental immunity to plaintiffs' negligence claim through its purchase of excess liability insurance because the excess liability insurance did not apply unless and until the city had a legal obligation to pay the $3 million self-insured amount. Pettiford v. City of Greensboro, 556 F. Supp. 2d 512 (M.D.N.C. 2008).

City did not waive its governmental immunity to plaintiffs' negligence claim through its participation in a local government excess liability fund because the fund failed to meet the statutory requirements of a local government risk pool; two members of the fund were not local governments, no notice was given to the Commissioner of Insurance that the participating entities intended to organize and operate a risk pool, the fund did not contain a provision for a system or program of loss control, and the city had to repay the entire amount for claims between $100,000 and $3 million. Pettiford v. City of Greensboro, 556 F. Supp. 2d 512 (M.D.N.C. 2008).

Taken in the light most favorable to the police officers, if the City had a duty to fund the pension fund, then the act of funding the fund would be a governmental function rather than a proprietary one; the City offered an affidavit showing it had no liability insurance for the officers' fiduciary duty claim. The officers offered nothing to rebut the City's affidavit; therefore, the City did not waive tort immunity for the officers' fiduciary duty claim, and the City was entitled to summary judgment as to this claim. Crosby v. City of Gastonia, 682 F. Supp. 2d 537 (W.D.N.C. Jan. 7, 2010), aff'd, 635 F.3d 634, 2011 U.S. App. LEXIS 4641 (4th Cir. N.C. 2011).

In an action by homeowners alleging that a town was negligent in closing a public street after storm damage, the town did not waive governmental immunity by purchasing a general liability insurance policy a connection between an "occurrence" and the claimant's injuries was necessary in order for there to be coverage under the policy and the "occurrence" upon which the homeowners relied was actually an act of God and did not involve any conduct for which the town was legally liable. Kirkpatrick v. Town of Nags Head, 213 N.C. App. 132, 713 S.E.2d 151 (2011).

City did not waive its immunity from suit by purchasing liability insurance pursuant to G.S. 160A-485(a) because the policies provided coverage only for occurrences or wrongful acts for which the defense of governmental immunity was clearly not applicable or for which, after the defenses were asserted, a court of competent jurisdiction determined the defense of governmental immunity not to be applicable. Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012), cert. denied, 134 S. Ct. 98, 2013 U.S. LEXIS 5296, 187 L. Ed. 2d 33 (U.S. 2013), cert. denied, 134 S. Ct. 617, 2013 U.S. LEXIS 8076, 187 L. Ed. 2d 409 (U.S. 2013).

City did not waive its immunity from suit by purchasing an insurance policy because the policy explicitly provided coverage for "occurrences" or "wrongful acts" for the policy period of April 1, 2007 to April 1, 2008, and plaintiffs did not allege any "occurrences" or "wrongful acts" during the policy's temporal scope. Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012), cert. denied, 134 S. Ct. 98, 2013 U.S. LEXIS 5296, 187 L. Ed. 2d 33 (U.S. 2013), cert. denied, 134 S. Ct. 617, 2013 U.S. LEXIS 8076, 187 L. Ed. 2d 409 (U.S. 2013).

Trial court did not err when, after weighing the evidence presented by the parties, it determined the town did not waive sovereign immunity through the purchase of its insurance policy because the sovereign immunity non-waiver endorsement stated that nothing in the town's insurance policy, coverage part or coverage form waived sovereign immunity for any insured; and that endorsement expressly indicated that it modified the insurance provided under each of the five coverage parts of the policy. Parker v. Town of Erwin, 243 N.C. App. 84, 776 S.E.2d 710 (2015).

Applied in Fowler v. Valencourt, 108 N.C. App. 106, 423 S.E.2d 785 (1992); Barnett v. Karpinos, 119 N.C. App. 719, 460 S.E.2d 208 (1995); Stafford v. Baker, 129 N.C. App. 576, 502 S.E.2d 1 (1998), cert. denied, 348 N.C. 695, 511 S.E.2d 650 (1998); Spruill v. Lake Phelps Volunteer Fire Dep't, Inc., 132 N.C. App. 104, 510 S.E.2d 405 (1999); Dash v. Walton, - F. Supp. 2d - (M.D.N.C. May 17, 2002); Williams v. Devere Constr. Co., 215 N.C. App. 135, 716 S.E.2d 21 (2011).

Cited in Edwards v. Akion, 52 N.C. App. 688, 279 S.E.2d 894 (1981); Wiggins v. City of Monroe, 73 N.C. App. 44, 326 S.E.2d 39 (1985); Jackson v. Housing Auth., 316 N.C. 259, 341 S.E.2d 523 (1986); Lynn v. Overlook Dev., 98 N.C. App. 75, 389 S.E.2d 609 (1990); Lonon v. Talbert, 103 N.C. App. 686, 407 S.E.2d 276 (1991); Combs v. Town of Belhaven, 106 N.C. App. 71, 415 S.E.2d 91 (1992); Taylor v. Ashburn, 112 N.C. App. 604, 436 S.E.2d 276 (1993); Mullins v. Friend, 116 N.C. App. 676, 449 S.E.2d 227 (1994); Wilhelm v. City of Fayetteville, 121 N.C. App. 87, 464 S.E.2d 299 (1995); White v. Town of Chapel Hill, 899 F. Supp. 1428 (M.D.N.C. 1995); Lyles v. City of Charlotte, 344 N.C. 676, 477 S.E.2d 150 (1996); Young v. Woodall, 343 N.C. 459, 471 S.E.2d 357 (1996); Tise v. Yates Constr. Co., 345 N.C. 456, 480 S.E.2d 677 (1997); Mellon v. Prosser, 126 N.C. App. 620, 486 S.E.2d 439 (1997), rev'd on other grounds, 347 N.C. 568, 494 S.E.2d 763 (1998); Williams v. Holsclaw, 128 N.C. App. 205, 495 S.E.2d 166 (1998); Lovelace v. City of Shelby, 351 N.C. 458, 526 S.E.2d 652 (2000), appeal dismissed, 153 N.C. App. 378, 570 S.E.2d 136 (2002); Cucina v. City of Jacksonville, 138 N.C. App. 99, 530 S.E.2d 353, review denied, 352 N.C. 588, 544 S.E.2d 778 (2000); Hyatt v. Town of Lake Lure, 225 F. Supp. 2d 647 (W.D.N.C. 2002); Myers v. McGrady, 360 N.C. 460, 628 S.E.2d 761 (2006); Patterson v. City of Gastonia, 220 N.C. App. 233, 725 S.E.2d 82 (2012); Hart v. Brienza, 246 N.C. App. 426, 784 S.E.2d 211, review denied, 793 S.E.2d 223, 2016 N.C. LEXIS 841 (2016); Wray v. City of Greensboro, 370 N.C. 41, 802 S.E.2d 894 (2017).


§§ 160A-485.1 through 160A-485.4: Reserved for future codification purposes.

§ 160A-485.5. Waiver of immunity for large cities through State Tort Claims Act.

  1. Any city with a population of 500,000 or more according to the most recent decennial federal census is authorized to waive its immunity from civil liability in tort by passage of a resolution expressing the intent of the city to waive its sovereign immunity pursuant to Article 31 of Chapter 143 of the General Statutes, as modified by subsection (b) of this section, and subject to the limitations set forth by subsection (c) of this section. Any resolution passed pursuant to this section shall apply to all claims arising on or after the passage of the resolution, until repealed.
  2. The following modifications of Article 31 of Chapter 143 of the General Statutes shall apply to the waiver of sovereign immunity described by subsection (a) of this section:
    1. Jurisdiction for tort claims against the city shall be vested in the Superior Court Division of the General Court of Justice of the county where the city is principally located, and, except as otherwise provided in this section, tort claims against a city shall be governed by the North Carolina Rules of Civil Procedure. The city shall be solely responsible for the expenses of its legal representation in connection with claims asserted against it, and for payment of the amount for which it is found liable under this section. Therefore, G.S. 143-291, 143-291.1, 143-291.2, 143-291.3, 143-292, 143-293, 143-295, 143-295.1, 143-296, 143-297, 143-298, 143-299.4, and 143-300 shall not apply to claims under this section.
    2. Appeals to the Court of Appeals from a decision of the Superior Court Division shall be treated in the same manner as an appeal from a decision of the Industrial Commission under G.S. 143-294.
    3. The limitation on claims set forth in G.S. 143-299; the burden of proof and defense set forth in G.S. 143-299.1; notwithstanding G.S. 143-299.1A(c), the defense set forth in G.S. 143-299.1A; and the limitation on payments set forth in G.S. 143-299.2 shall apply to claims filed with the Superior Court Division under this section.
  3. If a city waives its immunity pursuant to subsection (a) of this section, G.S. 160A-485 shall not apply to that city. The city may purchase liability insurance or adopt a resolution creating a self-funded reserve to insure liability for negligence of any officer, employee, involuntary servant or agent of the city while acting within the scope of his office, employment, service, agency or authority, under circumstances where the city, if a private person, would be liable to the claimant in accordance with the laws of North Carolina.
  4. No document or exhibit that relates to or alleges facts as to the city's insurance against liability shall be read, exhibited, or mentioned in the presence of the trial jury in the trial of any claim brought pursuant to this section, nor shall the plaintiff, plaintiff's counsel, or anyone testifying on the plaintiff's behalf directly or indirectly convey to the jury any inference that the city's potential liability is covered by insurance. No judgment may be entered against the city unless the plaintiff waives the plaintiff's right to a jury trial on all issues of law or fact relating to insurance coverage. All issues relating to insurance coverage shall be heard and determined by the judge without resort to a jury. The jury shall be absent during all motions, arguments, testimony, or announcement of findings of fact or conclusions of law with respect to insurance coverage. The city may waive its right to have issues concerning insurance coverage determined by the judge without a jury and may request a jury trial on these issues.

History

(2009-519, s. 1.)

§ 160A-486. Estimates of population.

When a newly incorporated municipality is not included in the most recent federal census of population but otherwise qualifies for distribution of State-collected funds allocated wholly or partially on the basis of current population estimates, the municipality shall be entitled to participate in the distribution of these funds by reporting all information designated by the Office of State Budget and Management. An estimate of this city's population will be made by the Office of State Budget and Management in accordance with procedures designated by that office. The estimate will be certified to State departments and agencies charged with the responsibility of distributing funds to local governments along with the current population estimates for all other municipalities.

History

(1953, c. 79; 1969, c. 873; 1971, c. 698, s. 1; 1979, 2nd Sess., c. 1137, s. 46; 2000-140, s. 93.1(a); 2001-424, s. 12.2(b).)

§ 160A-487. City and county financial support for rescue squads.

Each city and county is authorized to appropriate funds to rescue squads or teams to enable them to purchase and maintain rescue equipment and to finance the operation of the rescue squad either within or outside the boundaries of the city or county.

History

(1959, c. 989; 1971, c. 698, s. 1.)

Local Modification. - City of Jacksonville: 1979, 2nd Sess., c. 1113.

Cross References. - As to power of counties to take action under this section, see G.S. 153A-445.


§ 160A-488. Museums and arts programs.

  1. Any city or county is authorized to establish and support museums, art galleries, or arts centers, so long as the facility is open to the public.
  2. Any city or county is authorized to establish and support arts programs and facilities. As used in this section, "arts" refers to the performing arts, visual arts, and literary arts and includes dance, drama, music, painting, drawing, sculpture, printmaking, crafts, photography, film, video, architecture, design and literature, when part of a performing, visual or literary arts program.
  3. Any city or county may contract with any other governmental agency, or with any public or nonprofit private association, corporation or organization to establish and support museums, art galleries, arts centers, arts facilities, and arts programs and may appropriate funds to any such governmental agency, or to any such public or nonprofit private association, corporation or organization for the purpose of establishing and supporting such museums, galleries, centers, facilities and programs.
  4. As used in this section, "support" includes, but is not limited to: acquisition, construction, and renovation of buildings, including acquisition of land and other property therefor; purchase of paintings and other works of art; acquisition, lease, or purchase of materials and equipment; compensation of personnel; and all operating and maintenance expenses of the program or facility.
  5. In the event funds appropriated for the purposes of this section are turned over to any agency or organization other than the city or county for expenditure, no such expenditure shall be made until the city or county has approved it, and all such expenditures shall be accounted for by the agency or organization at the end of the fiscal year for which they were appropriated.
  6. For the purposes set forth in this section, a city or county may appropriate funds not otherwise limited as to use by law.

History

(1955, c. 1338; 1961, c. 309; 1965, c. 1019; 1971, c. 698, s. 1; 1975, c. 664, s. 17; 1979, 2nd Sess., c. 1201.)

Cross References. - As to levy of taxes by counties and cities to support arts programs and museums, see G.S. 153A-149 and G.S. 160A-209, respectively.

As to power of counties to take action under this section, see G.S. 153A-445.


§ 160A-489. Auditoriums, coliseums, and convention centers.

Any city is authorized to establish and support public auditoriums, coliseums, and convention centers. As used in this section, "support" includes but is not limited to: acquisition, construction, and renovation of buildings and acquisition of the necessary land and other property therefor; purchase of equipment; compensation of personnel; and all operating and maintenance expenses of the facility. For the purposes set forth in this section, a city may appropriate funds not otherwise limited as to use by law.

History

(1971, c. 698, s. 1; 1975, c. 664, s. 18.)

Local Modification. - New Hanover and the municipalities in New Hanover: 2002-138, s. 6; City of Wilmington: 1981, c. 595.

CASE NOTES

This section does not confer implied authority to engage in the restaurant business on any municipal corporation or other governmental unit of a county. Smith v. County of Mecklenburg, 280 N.C. 497, 187 S.E.2d 67 (1972).


§ 160A-490. Photographic reproduction of records.

  1. General Statutes 153A-436 shall apply to cities. When a county officer is designated by title in that Article, the designation shall be construed to mean the appropriate city officer, and the city council shall perform powers and duties conferred and imposed on the board of county commissioners.
  2. The provisions of subsection (a) of this section shall apply to records stored on any form of permanent, computer-readable media, such as a CD-ROM, if the medium is not subject to erasure or alteration. Nonerasable, computer-readable storage media may be used for preservation duplicates, as defined in G.S. 132-8.2, or for the preservation of permanently valuable records as provided in G.S. 121-5(d).

History

(1955, c. 451; 1971, c. 698, s. 1; 1979, 2nd Sess., c. 1247, s. 41; 1999-131, s. 5; 1999-456, s. 47(e); 2011-326, s. 13(e).)

Effect of Amendments. - Session Laws 2011-326, s. 13(e), effective June 27, 2011, in the last sentence of subsection (b), substituted "may be used" for "shall not be used" and deleted "except to the extent expressly approved by the Department of Cultural Resources pursuant to standards and conditions established by the Department" from the end.

§ 160A-490.1. SBI and State Crime Laboratory access to view and analyze recordings.

The local law enforcement agency of any city that uses the services of the State Bureau of Investigation or the North Carolina State Crime Laboratory to analyze a recording covered by G.S. 132-1.4A shall, at no cost, provide access to a method to view and analyze the recording upon request of the State Bureau of Investigation or the North Carolina State Crime Laboratory.

History

(2016-88, s. 2(b).)

Cross References. - As to various similar provisions pertaining to SBI and State Crime Laboratory access to view and analyze recordings, see Article 8A of Chapter 15A, and G.S. 114-64.

As to law enforcement agency recordings, see G.S. 132-1.4A.

Editor's Note. - Session Laws 2016-88, s. 5, made this section effective October 1, 2016, and applicable to all requests made on or after that date for the disclosure or release of a recording.

§ 160A-491. Powers in connection with beach erosion.

[All cities shall have the power] to levy taxes and appropriate tax or nontax funds for the acquisition, construction, reconstruction, extension, maintenance, improvement, or enlargement of groins, jetties, dikes, moles, walls, sand dunes, vegetation, or other types of works or improvements which are designed for the control of beach erosion or for protection from hurricane floods and for the preservation or restoration of facilities or natural features which afford protection to the beaches or other land areas of the municipalities or to the life and property thereon.

History

(1971, c. 896, s. 5; c. 1159, s. 2.)

Editor's Note. - This section was originally codified as subdivision (48) of G.S. 160-200. It was transferred to its present position by Session Laws 1971, c. 896, s. 5.

§ 160A-492. Human relations, community action and manpower development programs.

The governing body of any city, town, or county is hereby authorized to undertake, and to expend tax or nontax funds for, human relations, community action and manpower development programs. In undertaking and engaging in such programs, the governing body may enter into contracts with and accept loans and grants from the State or federal governments. The governing body may appoint such human relations, community action and manpower development committees or boards and citizens' committees, as it may deem necessary in carrying out such programs and activities, and may authorize the employment of personnel by such committees or boards, and may establish their duties, responsibilities, and powers. The cities and counties may jointly undertake any program or activity which they are authorized to undertake by this section. The expenses of undertaking and engaging in the human relations, community action and manpower development programs and activities authorized by this section are necessary expenses for which funds derived from taxation may be expended without the necessity of prior approval of the voters.

For the purposes of this section, a "human relations program" is one devoted to (i) the study of problems in the area of human relations, (ii) the promotion of equality of opportunity for all citizens, (iii) the promotion of understanding, respect and goodwill among all citizens, (iv) the provision of channels of communication among the races, (v) dispute resolution, (vi) encouraging the employment of qualified people without regard to race, or (vii) encouraging youth to become better trained and qualified for employment.

History

(1971, c. 896, s. 11; c. 1207, ss. 1, 2; 1973, c. 641; 1989 (Reg. Sess., 1990), c. 1062, s. 1.)

Cross References. - As to power of counties to take action under this section, see G.S. 153A-445.

Editor's Note. - This section was originally codified as subdivision (51) of G.S. 160-200. It was transferred to its present position by Session Laws 1971, c. 896, s. 11.

§ 160A-493. Animal shelters.

A city may establish, equip, operate, and maintain an animal shelter or may contribute to the support of an animal shelter, and for these purposes may appropriate funds not otherwise limited as to use by law. The animal shelters shall meet the same standards as animal shelters regulated by the Department of Agriculture pursuant to its authority under Chapter 19A of the General Statutes.

History

(1973, c. 426, s. 73.1; 2004-199, s. 39(b).)

Effect of Amendments. - Session Laws 2004-199, s. 39(b), effective August 17, 2004, added the second sentence.

§ 160A-494. Drug abuse programs.

Any city may provide for the prevention and treatment of narcotic, barbituric and other types of drug abuse and addiction through education, medication, medical care, hospitalization, and outpatient housing, and may appropriate the necessary funds therefor.

History

(1973, c. 608.)

§ 160A-495. Appropriations for establishment, etc., of local government center in Raleigh.

Counties, cities and towns are hereby authorized to appropriate money for payment to their respective instrumentalities, the North Carolina Association of County Commissioners and the North Carolina League of Municipalities for the purpose of financing the cost, in whole or in part, of purchasing, constructing, equipping, maintaining and operating a local government center in the City of Raleigh to serve as permanent headquarters for said organizations.

History

(1973, c. 1131.)

§ 160A-496. Incorporation of local acts into charter.

  1. A city may from time to time require the city attorney to present to the council any local acts relating to the property, affairs, and government of the city and not part of the city's charter which the city attorney recommends be incorporated into the charter. In his recommendations, the city attorney may include suggestions for renumbering or rearranging the provisions of the charter and other local acts, for providing catchlines, and for any other modifications in arrangement or form that do not change the provisions themselves of the charter or local acts and that may be necessary to effect an orderly incorporation of local acts into the charter.
  2. After considering the recommendations of the attorney, the council may by ordinance direct the incorporation of any such local acts into the charter. The city clerk shall file a certified true copy of the ordinance with the Secretary of State and with the Legislative Library.
  3. For purposes of this section, "charter" means that local act of the General Assembly or action of the Municipal Board of Control incorporating a city or a later local act that includes provisions expressly denominated the city's "charter," plus any other local acts inserted therein pursuant to this section or a comparable provision of a local act.

History

(1975, c. 156; 1985 (Reg. Sess., 1986), c. 935, s. 3; 1989, c. 191, s. 3.)

§ 160A-497. Senior citizens programs.

Any city or county may undertake programs for the assistance and care of its senior citizens including but not limited to programs for in-home services, food service, counseling, recreation and transportation, and may appropriate funds for such programs. Any city council or county may contract with any other governmental agency, or with any public or private association, corporation or organization in undertaking senior citizens programs, and may appropriate funds to any such governmental agency, or to any such public or private association, corporation or organization for the purpose of carrying out such programs. In the event funds appropriated for the purposes of this section are turned over to any agency or organization other than the city or county for expenditure, no such expenditure shall be made until the city or county has approved it, and all such expenditures shall be accounted for by the agency or organization at the end of the fiscal year for which they were appropriated. For purposes of this section, the words "senior citizens" shall mean citizens of a city or county who are at least 60 years of age.

History

(1977, c. 187, s. 1; c. 647, ss. 1, 2; 1979, 2nd Sess., c. 1094, ss. 4, 5.)

Editor's Note. - Session Laws 1979, 2nd Sess., c. 1094, which inserted references to counties in this section, provided in s. 6: "This act is effective upon ratification. All contracts which would be permissible under this act which were entered into on or after April 20, 1979, are hereby validated." The act was ratified on June 17, 1980.

The preamble to Session Laws 1979, 2nd Sess., c. 1094, cited as the reason for the enactment the case of Hughey v. Cloninger, 297 N.C. 86, 253 S.E.2d 898 (1979), requiring statutory authority for third party contracts.


§ 160A-498. Railroad corridor preservation.

A city or county may acquire property, by purchase or gift, to preserve a railroad corridor established by the Department of Transportation. A city or county that acquires property to preserve a railroad corridor may lease the property or use the property for interim compatible uses until the property is used for a railroad.

History

(1989, c. 600, s. 9.)

§ 160A-499. Reimbursement agreements.

  1. A city may enter into reimbursement agreements with private developers and property owners for the design and construction of municipal infrastructure that is included on the city's Capital Improvement Plan and serves the developer or property owner. For the purpose of this act, municipal infrastructure includes, without limitation, water mains, sanitary sewer lines, lift stations, stormwater lines, streets, curb and gutter, sidewalks, traffic control devices, and other associated facilities.
  2. A city shall enact ordinances setting forth procedures and terms under which such agreements may be approved.
  3. A city may provide for such reimbursements to be paid from any lawful source.
  4. Reimbursement agreements authorized by this section shall not be subject to Article 8 of Chapter 143 of the General Statutes, except as provided by this subsection. A developer or property owner who is party to a reimbursement agreement authorized under this section shall solicit bids in accordance with Article 8 of Chapter 143 of the General Statutes when awarding contracts for work that would have required competitive bidding if the contract had been awarded by the city.

History

(2005-426, s. 8(a).)

Editor's Note. - Session Laws 2005-41, ss. 1-6, effective May 16, 2005, enacts similar reimbursement agreement provisions for certain municipalities. Session Laws 2005-41, s. 6, provides: "This act applies only to the Towns of Apex, Broadway, Cary, Goldston, Holly Springs, Pittsboro, and Siler City, to the City of Sanford, to all municipalities located wholly or partially within Cabarrus County, and to Cabarrus, Chatham, Durham, and Lee Counties, but as to the Town of Broadway only applies as to municipal infrastructure located in Lee County."

§ 160A-499.2. Fair housing ordinances in certain municipalities.

  1. A municipality shall have the power to adopt ordinances prohibiting discrimination on the basis of race, color, sex, religion, handicap, familial status, or national origin in real estate transactions. The ordinances may regulate or prohibit any act, practice, activity, or procedure related, directly or indirectly, to the sale or rental of public or private housing, which affects or may tend to affect the availability or desirability of housing on an equal basis to all persons; may provide that violations constitute a criminal offense; may subject the offender to civil penalties; and may provide that the municipality may enforce the ordinances by application to the Superior Court Division of the General Court of Justice for appropriate legal and equitable remedies, including mandatory and prohibitory injunctions and orders of abatement, attorneys' fees, and punitive damages, and the court shall have jurisdiction to grant the remedies.
  2. A municipality also shall have the power to amend any ordinance adopted pursuant to the provisions contained in subsection (a) of this section to ensure that the ordinance remains substantially equivalent to the federal Fair Housing Act (41 U.S.C. §§ 3601, et seq.). Any ordinance enacted pursuant to this section prohibiting discrimination on the basis of familial status shall not apply to housing for older persons, as defined in the federal Fair Housing Act (41 U.S.C. §§ 3601, et seq.).
  3. Any ordinance enacted pursuant to this section may provide for exemption from its coverage:
    1. The rental of a housing accommodation in a building containing accommodations for not more than four families living independently of each other if the lessor or a member of his family resides in one of those accommodations.
    2. The rental of a room or rooms in a housing accommodation by an individual if he or a member of his family resides there.
    3. With respect to discrimination based on sex, the rental or leasing of housing accommodations in single-sex dormitory property.
    4. With respect to discrimination based on religion to housing accommodations owned and operated for other than a commercial purpose by a religious organization, association, or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society, the sale, rental, or occupancy of the housing accommodation being limited or preference being given to persons of the same religion, unless membership in the religion is restricted because of race, color, national origin, or sex.
    5. Any person, otherwise subject to its provisions, who adopts and carries out a plan to eliminate present effects of past discriminatory practices or to assure equal opportunity in real estate transactions, if the plan is part of a conciliation agreement entered into by that person under the provisions of the ordinance.
  4. A municipality may create or designate a committee to assume the duty and responsibility of enforcing ordinances adopted pursuant to this section. The committee may be granted any authority deemed necessary by the city council for the proper enforcement of any fair housing ordinance, including the power to:
    1. Promulgate rules for the receipt, initiation, investigation, and conciliation of complaints of violations of the ordinance.
    2. Require answers to interrogatories, the production of documents and things, and the entry upon land and premises in the possession of a party to a complaint alleging a violation of the ordinance; compel the attendance of witnesses at hearings; administer oaths; and examine witnesses under oath or affirmation.
    3. Apply to the Superior Court Division of the General Court of Justice, upon the failure of any person to respond to or comply with a lawful interrogatory, request for production of documents and things, request to enter upon land and premises, or subpoena, for an order requiring the person to respond or comply.
    4. Upon finding reasonable cause to believe that a violation of the ordinance has occurred, to petition the Superior Court Division of the General Court of Justice for appropriate civil relief on behalf of the aggrieved person or persons.
  5. A municipality may provide that neither complaints filed with any committee pursuant to the ordinance nor the results of the committee's investigations, discovery, or attempts at conciliation, in whatever form prepared and preserved, shall be subject to inspection, examination, or copying under the provisions of what is now Chapter 132 of the General Statutes.
  6. A municipality may provide that the statutory provisions relating to meetings of governmental bodies, presently embodied in Article 33C of Chapter 143 of the General Statutes, shall not apply to the activity of any committee authorized to enforce the ordinance to the extent that the committee is receiving a complaint or conducting an investigation, discovery, or conciliation pertaining to a complaint filed pursuant to the ordinance.
  7. This section applies only to municipalities that have a permanent population of 90,000 or more according to the most recent decennial census and that are the location of a recurring special accommodation event requiring temporary accommodations for at least 50,000 people. For purposes of this section, the term "recurring special accommodation event" means a trade show or other event of less than 11 days' duration that has been held in the municipality at least once a year for at least 10 years.

History

(2007-475, ss. 1, 2.)

Editor's Note. - Session Laws 2007-475, s. 2, was codified as subsection (g) of this section at the direction of the Revisor of Statutes.

§ 160A-499.3. Limitation on the use of public funds.

A municipality shall not use public funds to endorse or oppose a referendum, election or a particular candidate for elective office.

History

(2010-114, s. 1.5(b).)

Cross References. - As to limitation on the use of public funds by local boards of education, see G.S. 115C-46.1.

Editor's Note. - Session Laws 2010-114, s. 2, made this section effective July 20, 2010, and applicable beginning with the 2010-2011 school year.

§ 160A-499.4. Notice prior to construction.

  1. A city shall notify the property owners and adjacent property owners prior to commencement of any construction project by the city.
  2. Notice under this section shall be in writing at least 15 days prior to the commencement of construction, except in any of the following instances:
    1. If the construction is of an emergency nature, the notice may be given by any means, including verbally, that the city has for contacting the property owner within a reasonable time prior to, or after, commencement of the construction.
    2. The property owner requests action of the city that requires construction activity.
    3. The property owner consents to less than 15 days' notice.
    4. Notice of the construction project is given in any open meeting of the city prior to the commencement of the construction project.
  3. For purposes of this section, "construction" shall mean the building, erection, or establishment of new buildings, facilities, and infrastructure and shall not include routine maintenance and repair.

History

(2015-246, s. 12(b); 2015-286, s. 1.8(d).)

Editor's Note. - Session Laws 2015-246, s. 12(c), made this section effective October 1, 2015, and applicable to construction commenced on or after that date.

Session Laws 2015-246, s. 20, is a severability clause.

Session Laws 2015-286, s. 5.1, is a severability clause.

Effect of Amendments. - Session Laws 2015-286, s. 1.8(d), effective October 22, 2015, in subdivision (b)(1), deleted "a repair" following "If the construction is" and substituted "construction" for "repair" at the end; and added subsection (c).

ARTICLE 22. Urban Redevelopment Law.

Sec.

§ 160A-500. Short title.

This Article shall be known and may be cited as the "Urban Redevelopment Law."

History

(1951, c. 1095, s. 1; 1973, c. 426, s. 75.)

Local Modification. - (As to Article 22) Town of Carrboro: 1987, c. 476, s. 1; (As to Article 22) Troy Redevelopment Commission: 2002-83, s. 1.

Editor's Note. - Sections 160A-500 through 160A-505 and 160A-506 through 160A-526 were originally codified as G.S. 160-454 through 160-474.2. They were transferred to their present position by Session Laws 1973, c. 426, s. 75.

Legal Periodicals. - For comment on the public purpose doctrine, see 3 Wake Forest Intra. L. Rev. 37 (1967).

For survey of 1978 administrative law, see 57 N.C.L. Rev. 831 (1979).

For article, "Forcing Urban Redevelopment To Proceed 'Building by Building' North Carolina's Flawed Policy Response to Kelo v. City of New London," see 85 N.C.L. Rev. 1784 (2007).

For article, "Toward a Comprehensive Program for Regulating Vacant or Abandoned Dwellings in North Carolina: The General Police Power, Minimum Housing Standards, and Vacant Property Registration," see 32 Campbell L. Rev. 1 (2009).

For article, "Economic Development Incentives and North Carolina Local Governments: A Framework for Analysis," see 91 N.C. L. Rev. 2021 (2013).

CASE NOTES

Constitutionality of Article. - Condemnation of blighted and slum areas within a municipality for redevelopment under safeguards to prevent such areas from reverting to slum areas is in the interest of the public health, safety, morals and welfare, and therefore such condemnation is for a public use and is not a taking of private property in violation of N.C. Const., Art. I, § 1 or G.S. 19. Redevelopment Comm'n v. Security Nat'l Bank, 252 N.C. 595, 114 S.E.2d 688 (1960).

The Urban Redevelopment Law does not confer any illegal delegation of legislative power in violation of N.C. Const., Art. II, § 1. Redevelopment Comm'n v. Security Nat'l Bank, 252 N.C. 595, 114 S.E.2d 688 (1960); Horton v. Redevelopment Comm'n, 259 N.C. 605, 131 S.E.2d 464 (1963).

The Urban Redevelopment Law is a constitutional delegation of power by the State to municipal corporations. Horton v. Redevelopment Comm'n, 259 N.C. 605, 131 S.E.2d 464 (1963).

The constitutionality of this Article has been upheld by the Supreme Court. Horton v. Redevelopment Comm'n, 262 N.C. 306, 137 S.E.2d 115 (1964).

Redevelopment Expenses Not "Necessary Expenses" Under Former Constitutional Provision. - The expenses incurred, or to be incurred, by a municipality in putting into effect an urban redevelopment plan, pursuant to the authority vested in it by the Urban Redevelopment Law, were not "necessary expenses" for which taxes might be levied and bonds issued without a vote of the people under former Art. VII, § 6, Const. 1868, as amended in 1962. Horton v. Redevelopment Comm'n, 259 N.C. 605, 131 S.E.2d 464 (1963).

Purpose of Article. - The ultimate result which the Urban Redevelopment Law seeks to achieve is to eliminate the injurious consequences caused by a blighted area in a municipality and to substitute for them a use of the area which it is hoped will render impossible future blight and its injurious consequences. This is, in its broad purpose, a preventive measure. Horton v. Redevelopment Comm'n, 259 N.C. 605, 131 S.E.2d 464 (1963).

Wisdom of Article a Legislative Question. - It may be that the urban redevelopment project may prove eventually to be a disappointment, and is ill advised, but the wisdom of the enactment is a legislative and not a judicial question. Horton v. Redevelopment Comm'n, 259 N.C. 605, 131 S.E.2d 464 (1963).

A redevelopment commission is a municipal corporation for the purpose of tax exemption. Redevelopment Comm'n v. Guilford County, 274 N.C. 585, 164 S.E.2d 476 (1968).

In an action brought by a redevelopment commission against city and county to restrain collection of ad valorem taxes upon real property held by the commission, where the commissioner's allegations showed the acquisition of the property with intent to use it for a public purpose, a definite plan evolved for its use for the public, and an actual public use of the property, the Court of Appeals erred in holding, as a matter of law, that such income-producing property held and acquired for redevelopment purposes was not exempt from taxation because it produced income. Redevelopment Comm'n v. Guilford County, 274 N.C. 585, 164 S.E.2d 476 (1968).

Definite Guide Prescribed for Creation of Redevelopment Commission. - The General Assembly has prescribed a definite and adequate guide, and the governing body of the municipality in creating or not creating a redevelopment commission cannot act in its absolute or unguided discretion. Redevelopment Comm'n v. Security Nat'l Bank, 252 N.C. 595, 114 S.E.2d 688 (1960).

Sufficiency of Condemnation Petition. - A petition to condemn land for urban renewal was sufficient under the Rules of Civil Procedure to state a claim for relief, where it gave notice of the nature and basis of the petitioners' claim and the type of case brought, and alleged generally the occurrence or performance of the conditions precedent required by Chapter 160, Article 37 (now Chapter 160A, Article 11), and Chapter 40A, Article 3. Redevelopment Comm'n v. Grimes, 277 N.C. 634, 178 S.E.2d 345 (1971).

Affirmative Allegation of Compliance with Statutory Requirements Necessary. - In order to invoke power of condemnation, the redevelopment commission must affirmatively allege compliance with the statutory requirements. Redevelopment Comm'n v. Grimes, 277 N.C. 634, 178 S.E.2d 345 (1971).

Applied in Gastonia Redevelopment Comm'n v. Coxco, Inc., 21 N.C. App. 335, 204 S.E.2d 211 (1974); Redevelopment Comm'n v. Ford, 67 N.C. App. 470, 313 S.E.2d 211 (1984); Redevelopment Comm'n v. Agapion, 129 N.C. App. 346, 499 S.E.2d 474 (1998).


§ 160A-501. Findings and declaration of policy.

It is hereby determined and declared as a matter of legislative finding:

  1. That there exist in urban communities in this State blighted areas as defined herein.
  2. That such areas are economic or social liabilities, inimical and injurious to the public health, safety, morals and welfare of the residents of the State, harmful to the social and economic well-being of the entire communities in which they exist, depreciating values therein, reducing tax revenues, and thereby depreciating further the general community-wide values.
  3. That the existence of such areas contributes substantially and increasingly to the spread of disease and crime, necessitating excessive and disproportionate expenditures of public funds for the preservation of the public health and safety, for crime prevention, correction, prosecution, punishment and the treatment of juvenile delinquency and for the maintenance of adequate police, fire and accident protection and other public services and facilities, constitutes an economic and social liability, substantially impairs or arrests the sound growth of communities.
  4. That the foregoing conditions are beyond remedy or control entirely by regulatory processes in the exercise of the police power and cannot be effectively dealt with by private enterprise under existing law without the additional aids herein granted.
  5. That the acquisition, preparation, sale, sound replanning, and redevelopment of such areas in accordance with sound and approved plans for their redevelopment will promote the public health, safety, convenience and welfare.

Therefore, it is hereby declared to be the policy of the State of North Carolina to promote the health, safety, and welfare of the inhabitants thereof by the creation of bodies corporate and politic to be known as redevelopment commissions, which shall exist and operate for the public purposes of acquiring and replanning such areas and of holding or disposing of them in such manner that they shall become available for economically and socially sound redevelopment. Such purposes are hereby declared to be public uses for which public money may be spent, and private property may be acquired by the exercise of the power of eminent domain.

History

(1951, c. 1095, s. 2; 1973, c. 426, s. 75.)

Legal Periodicals. - For comment, " 'Don't Know What a Slide Rule Is For': The Need for a Precise Definition of Public Purpose in North Carolina in the Wake of Kelo v. City of New London," see 28 Campbell L. Rev. 291 (2006).

CASE NOTES

Governmental Function. - City was entitled to governmental immunity in a negligence action arising from a trip and fall at a building the city leased to an arts organization because the lease was a governmental function, as (1) the legislature provided urban redevelopment activities undertaken to promote the health, safety, and welfare of North Carolina citizens were governmental functions, (2) the legislature determined private enterprise alone could not address urban blight, (3) the lease was a valid urban redevelopment and downtown revitalization activity, (4) the city did not seek to make a profit from the lease, and (5) the fees the city charged under the lease were not substantial and did not cover the city's operating costs. Meinck v. City of Gastonia, 371 N.C. 497, 819 S.E.2d 353 (2018).

Cited in Redevelopment Comm'n v. Security Nat'l Bank, 252 N.C. 595, 114 S.E.2d 688 (1960); Southern Bell Tel. & Tel. Co. v. Housing Auth., 38 N.C. App. 172, 247 S.E.2d 663 (1978).


§ 160A-502. Additional findings and declaration of policy.

It is further determined and declared as a matter of legislative finding:

  1. That the cities of North Carolina constitute important assets for the State and its citizens; that the preservation of the cities and of urban life against physical, social, and other hazards is vital to the safety, health, and welfare of the citizens of the State, and sound urban development in the future is essential to the continued economic development of North Carolina, and that the creation, existence, and growth of substandard areas present substantial hazards to the cities of the State, to urban life, and to sound future urban development.
  2. That blight exists in commercial and industrial areas as well as in residential areas, in the form of dilapidated, deteriorated, poorly ventilated, obsolete, overcrowded, unsanitary, or unsafe buildings, inadequate and unsafe streets, inadequate lots, and other conditions detrimental to the sound growth of the community; that the presence of such conditions tends to depress the value of neighboring properties, to impair the tax base of the community, and to inhibit private efforts to rehabilitate or improve other structures in the area; and that the acquisition, preparation, sale, sound replanning and redevelopment of such areas in accordance with sound and approved plans will promote the public health, safety, convenience and welfare.
  3. That not only is it in the interest of the public health, safety, convenience and welfare to eliminate existing substandard areas of all types, but it is also in the public interest and less costly to the community to prevent the creation of new blighted areas or the expansion of existing blighted areas; that vigorous enforcement of municipal and State building standards, sound planning of new community facilities, public acquisition of dilapidated, obsolescent buildings, and other municipal action can aid in preventing the creation of new blighted areas or the expansion of existing blighted areas; and that rehabilitation, conservation, and reconditioning of areas in accordance with sound and approved plans, where, in the absence of such action, there is a clear and present danger that the area will become blighted, will protect and promote the public health, safety, convenience and welfare.

Therefore it is hereby declared to be the policy of the State of North Carolina to protect and promote the health, safety, and welfare of the inhabitants of its urban areas by authorizing redevelopment commissions to undertake nonresidential redevelopment in accord with sound and approved plans and to undertake the rehabilitation, conservation, and reconditioning of areas where, in the absence of such action, there is a clear and present danger that the area will become blighted.

History

(1961, c. 837, s. 1; 1973, c. 426, s. 75.)

CASE NOTES

Governmental Function. - City was entitled to governmental immunity in a negligence action arising from a trip and fall at a building the city leased to an arts organization because the lease was a governmental function, as (1) the legislature provided urban redevelopment activities undertaken to promote the health, safety, and welfare of North Carolina citizens were governmental functions, (2) the legislature determined private enterprise alone could not address urban blight, (3) the lease was a valid urban redevelopment and downtown revitalization activity, (4) the city did not seek to make a profit from the lease, and (5) the fees the city charged under the lease were not substantial and did not cover the city's operating costs. Meinck v. City of Gastonia, 371 N.C. 497, 819 S.E.2d 353 (2018).

Cited in Redevelopment Comm'n v. Agapion, 129 N.C. App. 346, 499 S.E.2d 474 (1998).


§ 160A-503. Definitions.

The following terms where used in this Article, shall have the following meanings, except where the context clearly indicates a different meaning:

  1. "Area of operation" - The area within the territorial boundaries of the city or county for which a particular commission is created.
  2. "Blighted area" shall mean an area in which there is a predominance of buildings or improvements (or which is predominantly residential in character), and which, by reason of dilapidation, deterioration, age or obsolescence, inadequate provision for ventilation, light, air, sanitation, or open spaces, high density of population and overcrowding, unsanitary or unsafe conditions, or the existence of conditions which endanger life or property by fire and other causes, or any combination of such factors, substantially impairs the sound growth of the community, is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency and crime, and is detrimental to the public health, safety, morals or welfare; provided, no area shall be considered a blighted area within the meaning of this Article, unless it is determined by the planning commission that at least two thirds of the number of buildings within the area are of the character described in this subdivision and substantially contribute to the conditions making such area a blighted area; provided that if the power of eminent domain shall be exercised under the provisions of this Article, it may only be exercised to take a blighted parcel as defined in subdivision (2a) of this section, and the property owner or owners or persons having an interest in property shall be entitled to be represented by counsel of their own selection and their reasonable counsel fees fixed by the court, taxed as a part of the costs and paid by the petitioners.
  3. "Blighted parcel" shall mean a parcel on which there is a predominance of buildings or improvements (or which is predominantly residential in character), and which, by reason of dilapidation, deterioration, age or obsolescence, inadequate provision for ventilation, light, air, sanitation, or open spaces, high density of population and overcrowding, unsanitary or unsafe conditions, or the existence of conditions which endanger life or property by fire and other causes, or any combination of such factors, substantially impairs the sound growth of the community, is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency and crime, and is detrimental to the public health, safety, morals or welfare; provided, no parcel shall be considered a blighted parcel nor subject to the power of eminent domain, within the meaning of this Article, unless it is determined by the planning commission that the parcel is blighted.
  4. "Bonds" - Any bonds, interim certificates, notes, debentures or other obligations of a commission issued pursuant to this Article.
  5. "City" - Any city or town. "The city" shall mean the particular city for which a particular commission is created.
  6. "Commission" or "redevelopment commission" - A public body and a body corporate and politic created and organized in accordance with the provisions of this Article.
  7. "Field of operation" - The area within the territorial boundaries of the city for which a particular commission is created.
  8. "Governing body" - In the case of a city or town, the city council or other legislative body. The board of county commissioners.
  9. "Government" - Includes the State and federal governments or any subdivision, agency or instrumentality corporate or otherwise of either of them.
  10. "Municipality" - Any incorporated city or town, or any county.
  11. "Nonresidential redevelopment area" shall mean an area in which there is a predominance of buildings or improvements, whose use is predominantly nonresidential, and which, by reason of:
    1. Dilapidation, deterioration, age or obsolescence of buildings and other structures,
    2. Inadequate provisions for ventilation, light, air, sanitation or open spaces,
    3. Defective or inadequate street layout,
    4. Faulty lot layout in relation to size, adequacy, accessibility, or usefulness,
    5. Tax or special assessment delinquency exceeding the fair value of the property,
    6. Unsanitary or unsafe conditions,
    7. The existence of conditions which endanger life or property by fire and other causes, or
    8. Any combination of such factors
      1. Substantially impairs the sound growth of the community,
      2. Has seriously adverse effects on surrounding development, and
      3. Is detrimental to the public health, safety, morals or welfare;
  12. "Obligee of the commission" or "obligee" - Any bondholder, trustee or trustees for any bondholders, any lessor demising property to a commission used in connection with a redevelopment project, or any assignees of such lessor's interest, or any part thereof, and the federal government, when it is a party to any contract with a commission.
  13. "Planning commission" - Any planning commission established by ordinance for a municipality of this State. "The planning commission" shall mean the particular planning commission of the city or town in which a particular commission operates.
  14. "Real property" - Lands, lands under water, structures and any and all easements, franchises and incorporeal hereditaments and every estate and right therein, legal and equitable, including terms for years and liens by way of judgment, mortgage or otherwise.
  15. "Redeveloper" - Any individual, partnership or public or private corporation that shall enter or propose to enter into a contract with a commission for the redevelopment of an area under the provisions of this Article.
  16. "Redevelopment" - The acquisition, replanning, clearance, rehabilitation or rebuilding of an area for residential, recreational, commercial, industrial or other purposes, including the provision of streets, utilities, parks, recreational areas and other open spaces; provided, without limiting the generality thereof, the term "redevelopment" may include a program of repair and rehabilitation of buildings and other improvements, and may include the exercise of any powers under this Article with respect to the area for which such program is undertaken.
  17. "Redevelopment area" - Any area which a planning commission may find to be
    1. A blighted area because of the conditions enumerated in subdivision (2) of this section;
    2. A nonresidential redevelopment area because of conditions enumerated in subdivision (10) of this section;
    3. A rehabilitation, conservation, and reconditioning area within the meaning of subdivision (21) of this section;
    4. Any combination thereof, so as to require redevelopment under the provisions of this Article.
  18. "Redevelopment contract" - A contract between a commission and a redeveloper for the redevelopment of an area under the provisions of this Article.
  19. "Redevelopment plan" - A plan for the redevelopment of a redevelopment area made by a "commission" in accordance with the provisions of this Article.
  20. "Redevelopment project" shall mean any work or undertaking:
    1. To acquire blighted or nonresidential redevelopment areas or portions thereof, or individual tracts in rehabilitation, conservation, and reconditioning areas, including lands, structures, or improvements, the acquisition of which is necessary or incidental to the proper clearance, development, or redevelopment of such areas or to the prevention of the spread or recurrence of conditions of blight;
    2. To clear any such areas by demolition or removal of existing buildings, structures, streets, utilities or other improvements thereon and to install, construct, or reconstruct streets, utilities, and site improvements essential to the preparation of sites for uses in accordance with the redevelopment plan;
    3. To sell land in such areas for residential, recreational, commercial, industrial or other use or for the public use to the highest bidder as herein set out or to retain such land for public use, in accordance with the redevelopment plan;
    4. To carry out plans for a program of voluntary or compulsory repair, rehabilitation, or reconditioning of buildings or other improvements in such areas; including the making of loans therefor; and
    5. To engage in programs of assistance and financing, including the making of loans, for rehabilitation, repair, construction, acquisition, or reconditioning of residential units and commercial and industrial facilities in a redevelopment area.
  21. "Redevelopment proposal" - A proposal, including supporting data and the form of a redevelopment contract for the redevelopment of all or any part of a redevelopment area.
  22. "Rehabilitation, conservation, and reconditioning area" shall mean any area which the planning commission shall find, by reason of factors listed in subdivision (2) or subdivision (10), to be subject to a clear and present danger that, in the absence of municipal action to rehabilitate, conserve, and recondition the area, it will become in the reasonably foreseeable future a blighted area or a nonresidential redevelopment area as defined herein. In such an area, no individual tract, building, or improvement shall be subject to the power of eminent domain, within the meaning of this Article, unless it is of the character described in subdivision (2) or subdivision (10) and substantially contributes to the conditions endangering the area; provided that if the power of eminent domain shall be exercised under the provisions of this Article, the respondent or respondents shall be entitled to be represented by counsel of their own selection and their reasonable counsel fees fixed by the court, taxed as part of the costs and paid by the petitioners.

provided, no such area shall be considered a nonresidential redevelopment area nor subject to the power of eminent domain, within the meaning of this Article, unless it is determined by the planning commission that at least one half of the number of buildings within the area are of the character described in this subdivision and substantially contribute to the conditions making such area a nonresidential redevelopment area; provided that if the power of eminent domain shall be exercised under the provisions of this Article, the property owner or owners or persons having an interest in property shall be entitled to be represented by counsel of their own selection and their reasonable counsel fees fixed by the court, taxed as a part of the costs and paid by the petitioners.

The term "redevelopment project" may also include the preparation of a redevelopment plan, the planning, survey and other work incident to a redevelopment project, and the preparation of all plans and arrangements for carrying out a redevelopment project.

History

(1951, c. 1095, s. 3; 1957, c. 502, ss. 1-3; 1961, c. 837, ss. 2, 3, 4, 6; 1967, c. 1249; 1969, c. 1208, s. 1; 1973, c. 426, s. 75; 1981, c. 907, ss. 1, 2; 1985, c. 665, s. 6; 2006-224, ss. 2.1, 2.2; 2006-259, s. 47.)

Editor's Note. - Session Laws 2006-259, s. 47, provides: "If House Bill 1965, 2005 Regular Session (Session Laws 2006-224), becomes law, every reference in that act to July 1, 2006, is changed to August 15, 2006."

Effect of Amendments. - Session Laws 2006-224, ss. 2.1, 2.2, as amended by Session Laws 2006-259, s. 47, effective August 15, 2006, in subdivision (2), deleted "nor subject to the power of eminent domain," preceding "within the meaning of this Article", and inserted "it may only be exercised to take a blighted parcel as defined in subdivision (2a) of this section, and"; and added subdivision (2a).

Legal Periodicals. - For article, "Forcing Urban Redevelopment To Proceed 'Building by Building' North Carolina's Flawed Policy Response to Kelo v. City of New London," see 85 N.C.L. Rev. 1784 (2007).

CASE NOTES

Meaning of "Municipality" or "Municipal Corporation". - The term "municipality" or "municipal corporation" has been defined as any incorporated city, town or village, or county. Sides v. Cabarrus Mem. Hosp., 22 N.C. App. 117, 205 S.E.2d 784 (1974), modified and aff'd, 287 N.C. 14, 213 S.E.2d 297 (1975).

A municipal corporation, city or town, is an agency created by the State to assist in the civil government of a designated territory and the people embraced within these limits. Sides v. Cabarrus Mem. Hosp., 22 N.C. App. 117, 205 S.E.2d 784 (1974), modified and aff'd, 287 N.C. 14, 213 S.E.2d 297 (1975).

The term "municipal corporation" should not be construed narrowly to include only cities, towns, counties and school districts; in its broader sense the term includes all public corporations exercising governmental functions within constitutional limitations. Sides v. Cabarrus Mem. Hosp., 22 N.C. App. 117, 205 S.E.2d 784 (1974), modified and aff'd, 287 N.C. 14, 213 S.E.2d 297 (1975).

A municipal corporation must have a public purpose and be invested with a governmental function. Sides v. Cabarrus Mem. Hosp., 22 N.C. App. 117, 205 S.E.2d 784 (1974), modified and aff'd, 287 N.C. 14, 213 S.E.2d 297 (1975).

Time for Consideration of Evidence of Condition of Condemned Property. - In its review of a redevelopment commission's determination that a property is blighted, the trial court should consider evidence relating to the condition of the condemned property at the time the commission's plan is approved by the city council. Redevelopment Comm'n v. Agapion, 129 N.C. App. 346, 499 S.E.2d 474 (1998).

Condemnation of Less Than All Property in Blighted Area. - Where an area was certified as a blighted area by the planning board, it was with the discretion of the redevelopment commission to condemn two vacant lots within the area without condemning all other lots therein. Redevelopment Comm'n v. Johnson, 129 N.C. App. 630, 500 S.E.2d 118 (1998).

Areas which are "blighted" cannot be enlarged to include areas which are not in fact "blighted." Any other conclusion would vest a redevelopment commission with authority which the legislature has expressly denied it. Horton v. Redevelopment Comm'n, 264 N.C. 1, 140 S.E.2d 728 (1965).

The legislature never intended to permit a planning commission or a redevelopment commission to include within the boundaries of a "blighted area" an area not meeting the statutory definition, even though the area might qualify as a nonresidential area, or as a rehabilitation, conservation and reconditioning area. Horton v. Redevelopment Comm'n, 264 N.C. 1, 140 S.E.2d 728 (1965).

Conditions May Be Corrected in Redevelopment Area Embracing Blighted and Other Defined Areas. - A planning commission may correct objectionable conditions within a redevelopment area consisting of a blighted area, a nonresidential redevelopment area, and a rehabilitation, conservation and reconditioning area. Horton v. Redevelopment Comm'n, 264 N.C. 1, 140 S.E.2d 728 (1965).

What Property in Rehabilitation, Conservation and Reconditioning Area Subject to Eminent Domain. - In a "rehabilitation, conservation and reconditioning area," no individual tract, building or improvement shall be subject to the power of eminent domain, within the meaning of this Article, unless it is "blighted" property and substantially contributes to the condition endangering the area. Horton v. Redevelopment Comm'n, 262 N.C. 306, 137 S.E.2d 115 (1964).

Power of Housing Authority to Close Public Streets. - Although the City of Raleigh did not delegate its police power to close public streets to the Housing Authority of Raleigh, the authority did not lack that power, since it had power to take public streets by eminent domain with the city's consent, and to carry out redevelopment projects, which included removal of existing streets, utilities or other improvements. Southern Bell Tel. & Tel. Co. v. Housing Auth., 38 N.C. App. 172, 247 S.E.2d 663 (1978), cert. denied, 296 N.C. 414 (1979).

Counsel Fees Provision of Subdivision (10) Helps Equalize Bargaining Power. - Provision of subdivision (10) providing that the commission pay counsel fees for the property owner when it is necessary to condemn his property, grants more freedom to the property owner to contest condemnation proceedings, as it permits him to receive the award for his property, even after legal action, without having it reduced by the payment of attorneys' fees. It helps to equalize the bargaining power of the property owner and the commission and prevent, insofar as possible, any undue economic pressures. Redevelopment Comm'n v. Hyder, 20 N.C. App. 241, 201 S.E.2d 236 (1973).

Control over the amount of the attorneys' fees allowed is found in the requirement that such counsel fees are to be fixed by the court and are to be reasonable in amount. Redevelopment Comm'n v. Hyder, 20 N.C. App. 241, 201 S.E.2d 236 (1973).

Allowance of attorneys' fees under subdivision (10)h3 is by the court, and is not affected by the existence of contracts for fees between counsel and their landowner clients. Redevelopment Comm'n v. Hyder, 20 N.C. App. 241, 201 S.E.2d 236 (1973).

Determination of Reasonable Counsel Fees. - Reasonable counsel fees in subdivision (10)h3 may be determined in part by the amount of the verdict obtained in the condemnation proceeding, in the light of the proposals made to the property owner prior to his employment of an attorney. Redevelopment Comm'n v. Hyder, 20 N.C. App. 241, 201 S.E.2d 236 (1973).

The results obtained by an attorney are a legitimate consideration in determining the amount of his fee. Redevelopment Comm'n v. Hyder, 20 N.C. App. 241, 201 S.E.2d 236 (1973).

Payment of Fee Must Be Commensurate with Services Performed. - There is no uncertainty under subdivision (10)h3 about the payment of an attorney fee commensurate with the services performed. Redevelopment Comm'n v. Hyder, 20 N.C. App. 241, 201 S.E.2d 236 (1973).

Award Is Not Contingent Fee. - When a statute, such as this section, provides for attorney fees to be awarded as a part of the costs to be paid by the governmental authority which is appropriating property, such award is not a contingent fee, but an amount equal to the actual reasonable value of the attorney's services. Redevelopment Comm'n v. Hyder, 20 N.C. App. 241, 201 S.E.2d 236 (1973).

Whether there was any recovery or not, counsel for the property owner is entitled to a reasonable fee, and it should not be set upon the basis of a contingency which did not exist. Redevelopment Comm'n v. Hyder, 20 N.C. App. 241, 201 S.E.2d 236 (1973).

The element of risk in connection with a contingent fee justifies a much larger fee when litigation is successfully terminated, but in eminent domain takings under subdivision (10)h3, there is no such risk, and the court must take this lack of risk into account. Redevelopment Comm'n v. Hyder, 20 N.C. App. 241, 201 S.E.2d 236 (1973).

A trial court erred in dismissing an action to condemn land for urban renewal where there was no finding that the redevelopment commission failed to comply with the statutory procedures prerequisite to an exercise of the power of eminent domain by it, and there was no allegation, proof, or finding that the redevelopment commission arbitrarily abused its discretion or acted in bad faith in selecting the area in question. The court's findings that the property of respondents did not lie within a blighted area or within a nonresidential redevelopment area as defined in this section was an insufficient basis for dismissal of the action. Redevelopment Comm'n v. Grimes, 277 N.C. 634, 178 S.E.2d 345 (1971).

Applied in Greensboro v. Wall, 247 N.C. 516, 101 S.E.2d 413 (1958).

Cited in Housing Auth. v. Farabee, 17 N.C. App. 431, 194 S.E.2d 553 (1973); Campbell v. First Baptist Church, 39 N.C. App. 117, 250 S.E.2d 68 (1978); Housing Auth. v. Clinard, 67 N.C. App. 192, 312 S.E.2d 524 (1984).

Opinions of Attorney General

Editor's Note. - Some of the opinions cited below were decided under former similar provisions including former G.S. 160-456.

Attorneys' fees are not recoverable unless a condemnation action is filed. See opinion of Attorney General to Mr. William I. Cochran, Jr., Executive Director, Redevelopment Commission of the City of Washington, 40 N.C.A.G. 637 (1969), issued under former G.S. 160-456(21).

Attorneys' fees are recoverable where a condemnation action is filed and the case is subsequently terminated by consent judgment. See opinion of Attorney General to Mr. William I. Cochran, Jr., Executive Director, Redevelopment Commission of the City of Washington, 40 N.C.A.G. 637 (1969), issued under former G.S. 160-456(21).

§ 160A-504. Formation of commissions.

  1. Each municipality, as defined herein, is hereby authorized to create separate and distinct bodies corporate and politic to be known as the redevelopment commission of the municipality by the passage by the governing body of such municipality of an ordinance or resolution creating a commission to function within the territorial limits of said municipality. Notice of the intent to consider the passage of such a resolution or ordinance shall be published at least 10 days prior to the meeting.
  2. The governing body of a municipality shall not adopt a resolution pursuant to subsection (a) above unless it finds:
    1. That blighted areas (as herein defined) exist in such municipality, and
    2. That the redevelopment of such areas is necessary in the interest of the public health, safety, morals or welfare of the residents of such municipality.
  3. The governing body shall cause a certified copy of such ordinance or resolution to be filed in the office of the Secretary of State; upon receipt of the said certificate the Secretary of State shall issue a certificate of incorporation.
  4. In any suit, action or proceeding involving or relating to the validity or enforcement of any contract or act of a commission, a copy of the certificate of incorporation duly certified by the Secretary of State shall be admissible in evidence and shall be conclusive proof of the legal establishment of the commission.

History

(1951, c. 1095, s. 4; 1973, c. 426, s. 75.)

CASE NOTES

Applied in Redevelopment Comm'n v. Grimes, 277 N.C. 634, 178 S.E.2d 345 (1971).


§ 160A-505. Alternative organization.

  1. In lieu of creating a redevelopment commission as authorized herein, the governing body of any municipality may, if it deems wise, either designate a housing authority created under the provisions of Chapter 157 of the General Statutes to exercise the powers, duties, and responsibilities of a redevelopment commission as prescribed herein, or undertake to exercise such powers, duties, and responsibilities itself. Any such designation shall be by passage of a resolution adopted in accordance with the procedure and pursuant to the findings specified in G.S. 160A-504(a) and (b). In the event a governing body designates itself to perform the powers, duties, and responsibilities of a redevelopment commission under this subsection, or exercises those powers, duties, and responsibilities pursuant to G.S. 153A-376 or G.S. 160A-456, then where any act or proceeding is required to be done, recommended, or approved both by a redevelopment commission and by the municipal governing body, then the performance, recommendation, or approval thereof once by the municipal governing body shall be sufficient to make such performance, recommendation, or approval valid and legal. In the event a municipal governing body designates itself to exercise the powers, duties, and responsibilities of a redevelopment commission, it may assign the administration of redevelopment policies, programs and plans to any existing or new department of the municipality.
  2. The governing body of any municipality which has prior to July 1, 1969, created, or which may hereafter create, a redevelopment commission may, in its discretion, by resolution abolish such redevelopment commission, such abolition to be effective on a day set in such resolution not less than 90 days after its adoption. Upon the adoption of such a resolution, the redevelopment commission of the municipality is hereby authorized and directed to take such actions and to execute such documents as will carry into effect the provisions and the intent of the resolution, and as will effectively transfer its authority, responsibilities, obligations, personnel, and property, both real and personal, to the municipality. Any municipality which abolishes a redevelopment commission pursuant to this subsection may, at any time subsequent to such abolition or concurrently therewith, exercise the authority granted by subsection (a) of this section.
    1. The redevelopment commission shall cease to exist as a body politic and corporate and as a public body;
    2. All property, real and personal and mixed, belonging to the redevelopment commission shall vest in, belong to, and be the property of the municipality;
    3. All judgments, liens, rights of liens, and causes of action of any nature in favor of the redevelopment commission shall remain, vest in, and inure to the benefit of the municipality;
    4. All rentals, taxes, assessments, and any other funds, charges or fees, owing to the redevelopment commission shall be owed to and collected by the municipality;
    5. Any actions, suits, and proceedings pending against, or having been instituted by the redevelopment commission shall not be abated by such abolition, but all such actions, suits, and proceedings shall be continued and completed in the same manner as if abolition had not occurred, and the municipality shall be a party to all such actions, suits, and proceedings in the place and stead of the redevelopment commission and shall pay or cause to be paid any judgment rendered against the redevelopment commission in any such actions, suits, or proceedings, and no new process need be served in any such action, suit, or proceeding;
    6. All obligations of the redevelopment commission, including outstanding indebtedness, shall be assumed by the municipality, and all such obligations and outstanding indebtedness shall be constituted obligations and indebtedness of the municipality;
    7. All ordinances, rules, regulations and policies of the redevelopment commission shall continue in full force and effect until repealed or amended by the governing body of the municipality.
  3. Where the governing body of any municipality has in its discretion, by resolution, abolished a redevelopment commission pursuant to subsection (b) above, the governing body of such municipality may, at any time subsequent to the passage of a resolution abolishing a redevelopment commission, or concurrently therewith, by the passage of a resolution adopted in accordance with the procedures and pursuant to the findings specified in G.S. 160A-504(a) and (b), designate an existing housing authority created pursuant to Chapter 157 of the General Statutes to exercise the powers, duties, and responsibilities of a redevelopment commission. Where the governing body of any municipality designates, pursuant to this subsection, an existing housing authority created pursuant to Chapter 157 of the General Statutes to exercise the powers, duties, and responsibilities of a redevelopment commission, on the day set in the resolution of the governing body passed pursuant to subsection (b) of this section, or pursuant to subsection (c) of this section:
    1. The redevelopment commission shall cease to exist as a body politic and corporate and as a public body;
    2. All property, real and personal and mixed, belonging to the redevelopment commission or to the municipality as hereinabove provided in subsections (a) or (b), shall vest in, belong to, and be the property of the existing housing authority of the municipality;
    3. All judgments, liens, rights of liens, and causes of action of any nature in favor of the redevelopment commission or in favor of the municipality as hereinabove provided in subsections (a) or (b), shall remain, vest in, and inure to the benefit of the existing housing authority of the municipality;
    4. All rentals, taxes, assessments, and any other funds, charges or fees owing to the redevelopment commission, or owing to the municipality as hereinabove provided in subsections (a) or (b), shall be owed to and collected by the existing housing authority of the municipality;
    5. Any actions, suits, and proceedings pending against or having been instituted by the redevelopment commission, or the municipality, or to which the municipality has become a party, as hereinabove provided in subsections (a) or (b), shall not be abated by such abolition but all such actions, suits, and proceedings shall be continued and completed in the same manner as if abolition had not occurred, and the existing housing authority of the municipality shall be a party to all such actions, suits, and proceedings in the place and stead of the redevelopment commission, or the municipality, and shall pay or cause to be paid any judgments rendered in such actions, suits, or proceedings, and no new processes need be served in such action, suit, or proceeding;
    6. All obligations of the redevelopment commission, or the municipality as hereinabove provided in subsections (a) or (b), including outstanding indebtedness, shall be assumed by the existing housing authority of the municipality; and all such obligations and outstanding indebtedness shall be constituted obligations and indebtedness of the existing housing authority of the municipality.
    7. All ordinances, rules, regulations, and policies of the redevelopment commission, or of the municipality as hereinabove provided in subsections (a) or (b), shall continue in full force and effect until repealed and amended by the existing housing authority of the municipality.
  4. A housing authority designated by the governing body of any municipality to exercise the powers, duties and responsibilities of a redevelopment commission shall, when exercising the same, do so in accordance with Article 22 of Chapter 160A of the General Statutes. Otherwise the housing authority shall continue to exercise the powers, duties and responsibilities of a housing authority in accordance with Chapter 157 of the General Statutes.

On the day set in the resolution of the governing body:

History

(1969, c. 1217, s. 1; 1971, c. 116, ss. 1, 2; 1973, c. 426, s. 75; 1981 (Reg. Sess., 1982), c. 1276, s. 13; 2003-403, s. 16.)

Editor's Note. - An amendment to subsection (a) of this section by Session Laws 1993, c. 497, s. 16, was made effective upon certification of approval of an amendment to Article V of the Constitution of North Carolina relating to the authority of any county, city or town to borrow money, without the need of voter approval, and issue financing bonds to be used to finance public activities associated with private economic development projects. This amendment was submitted to the people on November 2, 1993 and was defeated. The amendment to subsection (a) of this section, therefore, never took effect.

An earlier amendment to this section in Session Laws 1981 (Reg. Sess., 1982), c. 1276, s. 13, was made effective on certification of approval of a state constitutional amendment authorizing the enactment of laws dealing with transactions of the type contemplated by the act. Such an amendment was proposed by Session Laws 1981 (Reg. Sess., 1982), c. 1247, was submitted to the people on November 2, 1982, and was defeated. The amendment to this section, therefore, did not go into effect.

Session Laws 2003-403, s. 22, provides that Session Laws 2003-403, being necessary for the prosperity and welfare of North Carolina and its inhabitants, shall be liberally construed to effect its purposes.

Session Laws 2003-403, s. 23, is a severability clause.

Session Laws 2003-403, ss. 24 and 25, provide: "The amendment set out in Section 1 of this act shall be submitted to the qualified voters of the State at the statewide general election in November 2004, which election shall be conducted under the laws then governing elections in the State. Ballots, voting systems, or both may be used in accordance with Chapter 163 of the General Statutes. The question to be used in the voting systems and ballots shall be:

"[ ] FOR [ ] AGAINST

"Constitutional amendment to promote local economic and community development projects by (i) permitting the General Assembly to enact general laws giving counties, cities, and towns the power to finance public improvements associated with qualified private economic and community improvements within development districts, as long as the financing is secured by the additional tax revenues resulting from the enhanced property value within the development district and is not secured by a pledge of the local government's faith and credit or general taxing authority, which financing is not subject to a referendum; and (ii) permitting the owners of property in the development district to agree to a minimum tax value for their property, which is binding on future owners as long as the development district is in existence.

"If a majority of votes cast on the question are in favor of the amendment set out in Section 1 of this act, the State Board of Elections shall certify the amendment to the Secretary of State. The amendment set out in Section 1 of this act and the amendments set out in Sections 2 through 21 of this act become effective upon this certification. The Secretary of State shall enroll the amendment so certified among the permanent records of that office. If a majority of votes cast on the question are not in favor of the amendment set out in Section 1 of this act, that amendment and the amendments set out in Sections 2 through 21 of this act do not go into effect."

The constitutional amendment adding N.C. Const. Art. V, § 14, as proposed in Session Laws 2003-403, s. 1, was adopted by vote of the people at the general election held on November 2, 2004.

CASE NOTES

Cited in Southern Bell Tel. & Tel. Co. v. Housing Auth., 38 N.C. App. 172, 247 S.E.2d 663 (1978).


§ 160A-505.1. Commission budgeting and accounting systems as a part of municipality budgeting and accounting systems.

The governing body of a municipality may by resolution provide that the budgeting and accounting systems of the municipality's redevelopment commission or, if the municipality's housing authority is exercising the powers, duties, and responsibilities of a redevelopment commission, the budgeting and accounting systems of the housing authority, shall be an integral part of the budgeting and accounting systems of the municipality. If such a resolution is adopted:

  1. For purposes of the Local Government Budget and Fiscal Control Act, the commission or authority shall not be considered a "public authority," as that phrase is defined in G.S. 159-7(b), but rather shall be considered a department or agency of the municipality. The operations of the commission or authority shall be budgeted and accounted for as if the operations were those of a public enterprise of the municipality.
  2. The budget of the commission or authority shall be prepared and submitted in the same manner and according to the same procedures as are the budgets of other departments and agencies of the municipality; and the budget ordinance of the municipality shall provide for the operations of the commission or authority.
  3. The budget officer and finance officer of the municipality shall administer and control that portion of the municipality's budget ordinance relating to the operations of the commission or authority.

History

(1971, c. 780, s. 37.2; 1973, c. 474, s. 30.)

§ 160A-506. Creation of a county redevelopment commission.

If the board of county commissioners of a county by resolution declares that blighted areas do exist in said county, and the redevelopment of such areas is necessary in the interest of public health, safety, morals, or welfare of the residents of such county, the county commissioners of said county are hereby authorized to create a separate and distinct body corporate and politic to be known as the redevelopment commission of said county by passing a resolution to create such a commission to function in the territorial limits of said county. Provided, however, that notice of the intent to consider passage of such a resolution or ordinance shall be published at least 10 days prior to the meeting of the board of county commissioners for such purposes, and further provided that the redevelopment commission shall not function in an area where such a commission exists or in the corporate limits of a municipality without resolution of agreement by said municipality.

All of the provisions of Article 22, Chapter 160A of the General Statutes, shall be applicable to county redevelopment commissions, including the formation, appointment, tenure, compensation, organization, interest and powers as specified therein.

History

(1969, c. 1208, s. 2; 1973, c. 426, s. 75.)

§ 160A-507. Creation of a regional redevelopment commission.

If the board of county commissioners of two or more contiguous counties by resolution declare that blighted areas do exist in said counties and the redevelopment of such areas is necessary in the interest of public health, morals, or welfare of the residents of such counties, the county commissioners of said counties are hereby authorized to create a separate and distinct body corporate and politic to be known as the regional redevelopment commission by the passage of a resolution by each county to create such a commission to function in the territorial limits of the counties; provided, however, that notice of the intent to consider passage of such a resolution or ordinance shall be published at least 10 days prior to the meeting of the board of county commissioners for such purposes, and further provided that the redevelopment commission shall not function in an area where such a commission exists or in the corporate limits of a municipality without resolution of agreement by the municipality.

The board of county commissioners of each county included in the regional redevelopment commission shall appoint one person as a commissioner and such a person may be appointed at or after the time of the adoption of the resolution creating the redevelopment commission. The board of county commissioners shall have the authority to appoint successors or to remove persons for misconduct who are appointed by them. Each commissioner to the redevelopment commission shall serve for a five-year term except that initial appointments may be for less time in order to establish a fair donation system of appointments. In the event that a regional redevelopment commission shall have an even number of counties, the Governor of North Carolina shall appoint a member to the commission from the area to be served. The appointed members as commissioners shall constitute the regional redevelopment commission and certification of appointment shall be filed with the Secretary of State as part of the application for charter.

All provisions of the "Urban Redevelopment Law" as defined in Article 22 of Chapter 160A of the General Statutes, shall apply to the creation and operation of a regional redevelopment commission, and where reference is made to municipality, it shall be interpreted to apply to the area served by the regional redevelopment commission.

History

(1969, c. 1208, s. 3; 1973, c. 426, s. 75.)

§ 160A-507.1. Creation of a joint county-city redevelopment commission.

A county and one or more cities within the county are hereby authorized to create a separate and distinct body corporate and politic to be known as the joint redevelopment commission by the passage of a resolution by the board of county commissioners and the governing body of one or more cities within the county creating such a commission to function within the territorial limits of such participating units of government; provided, however, that notice of the intent to consider passage of such a resolution or ordinance shall be published at least 10 days prior to the meeting of the affected governing boards for such purposes, and further provided that a joint redevelopment commission created hereunder shall have authority to operate in an area where there presently exists a redevelopment commission upon the approval of the municipality or county concerned. The governing body of each participating local government shall appoint one or more commissioners as such governing bodies shall determine; such persons may be appointed at or after the time of adoption of the resolution creating the joint redevelopment commission. The appointing authority shall have the authority to appoint successors or to remove persons for misfeasance, malfeasance or nonfeasance who are appointed by them. Each commissioner shall serve for a term designated by the governing bodies of not less than one nor more than five years. The appointed members as commissioners shall constitute the joint redevelopment commission and certification of appointment shall be filed with the Secretary of State as part of the application for charter.

All provisions of the "Urban Redevelopment Law" as defined in Article 22 of Chapter 160A of the General Statutes shall apply to the creation and operation of a joint redevelopment commission and where reference is made to municipality, it shall be interpreted to apply to the units of government creating a joint redevelopment commission.

History

(1975, c. 407.)

§ 160A-508. Appointment and qualifications of members of commission.

Upon certification of a resolution declaring the need for a commission to operate in a city or town, the mayor and governing board thereof, respectively, shall appoint, as members of the commission, not less than five nor more than nine citizens who shall be residents of the city or town in which the commission is to operate. The governing body may at any time by resolution or ordinance increase or decrease the membership of a commission, within the limitations herein prescribed.

History

(1951, c. 1095, s. 5; 1971, c. 362, ss. 6, 7; 1973, c. 426, s. 75.)

Local Modification. - City of Sanford: 1973, c. 990.

§ 160A-509. Tenure and compensation of members of commission.

The mayor and governing body shall designate overlapping terms of not less than one nor more than five years for the members who are first appointed. Thereafter, the term of office shall be five years. A member shall hold office until his successor has been appointed and qualified. Vacancies for the unexpired terms shall be promptly filled by the mayor and governing body. A member shall receive such compensation, if any, as the municipal governing board may provide for this service, and shall be entitled within the budget appropriation to the necessary expenses, including traveling expenses, incurred in the discharge of his duties.

History

(1951, c. 1095, s. 6; 1967, c. 932, s. 4; 1971, c. 362, s. 8; 1973, c. 426, s. 75.)

§ 160A-510. Organization of commission.

The members of a commission shall select from among themselves a chairman, a vice-chairman, and such other officers as the commission may determine. A commission may employ a secretary, its own counsel, and such technical experts, and such other agents and employees, permanent or temporary, as it may require, and may determine the qualifications and fix the compensation of such persons. A majority of the members shall constitute a quorum for its meeting. Members shall not be liable personally on the bonds or other obligations of the commission, and the rights of creditors shall be solely against such commission. A commission may delegate to one or more of its members, agents or employees such of its powers as it shall deem necessary to carry out the purposes of this Article, subject always to the supervision and control of the commission. For inefficiency or neglect of duty or misconduct in office, a commissioner of a commission may be removed by the governing body, but a commissioner shall be removed only after a hearing and after he shall have been given a copy of the charges at least 10 days prior to such hearing and have had an opportunity to be heard in person or by counsel.

History

(1951, c. 1095, s. 7; 1971, c. 362, s. 9; 1973, c. 426, s. 75.)

§ 160A-511. Interest of members or employees.

No member or employee of a commission shall acquire any interest, direct or indirect, in any redevelopment project or in any property included or planned to be included in any redevelopment area, or in any area which he may have reason to believe may be certified to be a redevelopment area, nor shall he have any interest, direct or indirect, in any contract or proposed contract for materials or services to be furnished or used by a commission, or in any contract with a redeveloper or prospective redeveloper relating, directly or indirectly, to any redevelopment project, except that a member or employee of a commission may acquire property in a residential redevelopment area from a person or entity other than the commission after the residential redevelopment plan for that area is adopted if:

  1. The primary purpose of acquisition is to occupy the property as his principal residence;
  2. The redevelopment plan does not provide for acquisition of such property by the commission; and
  3. Prior to acquiring title to the property, the member or employee shall have disclosed in writing to the commission and to the local governing body his intent to acquire the property and to occupy the property as his principal residence.

Except as authorized herein, the acquisition of any such interest in a redevelopment project or in any such property or contract shall constitute misconduct in office. If any member or employee of a commission shall have already owned or controlled within the preceding two years any interest, direct or indirect, in any property later included or planned to be included in any redevelopment project, under the jurisdiction of the commission, or has any such interest in any contract for material or services to be furnished or used in connection with any redevelopment project, he shall disclose the same in writing to the commission and to the local governing body. Any disclosure required herein shall be entered in writing upon the minute books of the commission. Failure to make disclosure shall constitute misconduct in office.

History

(1951, c. 1095, s. 8; 1973, c. 426, s. 75; 1977, 2nd Sess., c. 1139.)

Local Modification. - City of Charlotte: 1983 (Reg. Sess., 1984), c. 964.

Opinions of Attorney General

As to applicability to member's lease of building in redevelopment project, see opinion of Attorney General to Mr. Miles B. Fowler, 42 N.C.A.G. 197 (1973).

§ 160A-512. Powers of commission.

A commission shall constitute a public body, corporate and politic, exercising public and essential governmental powers, which powers shall include all powers necessary or appropriate to carry out and effectuate the purposes and provisions of this Article, including the following powers in addition to those herein otherwise granted:

  1. To procure from the planning commission the designation of areas in need of redevelopment and its recommendation for such redevelopment;
  2. To cooperate with any government or municipality as herein defined;
  3. To act as agent of the State or federal government or any of its instrumentalities or agencies for the public purposes set out in this Article;
  4. To prepare or cause to be prepared and recommend redevelopment plans to the governing body of the municipality and to undertake and carry out "redevelopment projects" within its area of operation;
  5. Subject to the provisions of G.S. 160A-514(b) to arrange or contract for the furnishing or repair, by any person or agency, public or private, of services, privileges, works, streets, roads, public utilities or other facilities for or in connection with a redevelopment project; and (notwithstanding anything to the contrary contained in this Article or any other provision of law), to agree to any conditions that it may deem reasonable and appropriate attached to federal financial assistance and imposed pursuant to federal law relating to the determination of prevailing salaries or wages or compliance with labor standards, in the undertaking or carrying out of a redevelopment project, and to include in any contract let in connection with such a project, provisions to fulfill such of said conditions as it may deem reasonable and appropriate;
  6. Within its area of operation, to purchase, obtain options upon, acquire by gift, grant, devise, eminent domain or otherwise, any real or personal property or any interest therein, together with any improvements thereon, necessary or incidental to a redevelopment project, except that eminent domain may only be used to take a blighted parcel; to hold, improve, clear or prepare for redevelopment any such property, and subject to the provisions of G.S. 160A-514, and with the approval of the local governing body sell, exchange, transfer, assign, subdivide, retain for its own use, mortgage, pledge, hypothecate or otherwise encumber or dispose of any real or personal property or any interest therein, either as an entirety to a single "redeveloper" or in parts to several redevelopers; provided that the commission finds that the sale or other transfer of any such part will not be prejudicial to the sale of other parts of the redevelopment area, nor in any other way prejudicial to the realization of the redevelopment plan approved by the governing body; to enter into contracts, either before or after the real property that is the subject of the contract is acquired by the Commission (although disposition of the property is still subject to G.S. 160A-514), with "redevelopers" of property containing covenants, restrictions, and conditions regarding the use of such property for residential, commercial, industrial, recreational purposes or for public purposes in accordance with the redevelopment plan and such other covenants, restrictions and conditions as the commission may deem necessary to prevent a recurrence of blighted areas or to effectuate the purposes of this Article; to make any of the covenants, restrictions or conditions of the foregoing contracts covenants running with the land, and to provide appropriate remedies for any breach of any such covenants or conditions, including the right to terminate such contracts and any interest in the property created pursuant thereto; to borrow money and issue bonds therefor and provide security for bonds; to insure or provide for the insurance of any real or personal property or operations of the commission against any risks or hazards, including the power to pay premiums on any such insurance; and to enter into any contracts necessary to effectuate the purposes of this Article;
  7. To invest any funds held in reserves or sinking funds or any funds not required for immediate disbursements, in such investments as may be lawful for guardians, executors, administrators or other fiduciaries under the laws of this State; to redeem its bonds at the redemption price established therein or to purchase its bonds at less than redemption price, all bonds so redeemed or purchased to be cancelled;
  8. To borrow money and to apply for and accept advances, loans evidenced by bonds, grants, contributions and any other form of financial assistance from the federal government, the State, county, municipality or other public body or from any sources, public or private for the purposes of this Article, to give such security as may be required and to enter into and carry out contracts in connection therewith; and, notwithstanding the provisions of any other law, may include in any contract for financial assistance with the federal government for a redevelopment project such conditions imposed pursuant to federal law as the commission may deem reasonable and appropriate and which are not inconsistent with the purposes of this Article;
  9. Acting through one or more commissioners or other persons designated by the commission, to conduct examinations and investigations and to hear testimony and take proof under oath at public or private hearings on any matter material for its information; to administer oaths, issue subpoenas requiring the attendance of witnesses or the production of books and papers;
  10. Within its area of operation, to make or have made all surveys, studies and plans (but not including the preparation of a general plan for the community) necessary to the carrying out of the purposes of this Article and in connection therewith to enter into or upon any land, building, or improvement thereon for such purposes and to make soundings, test borings, surveys, appraisals and other preliminary studies and investigations necessary to carry out its powers but such entry shall constitute no cause of action for trespass in favor of the owner of such land, building, or improvement except for injuries resulting from negligence, wantonness or malice; and to contract or cooperate with any and all persons or agencies public or private, in the making and carrying out of such surveys, appraisals, studies and plans.
  11. To make such expenditures as may be necessary to carry out the purposes of this Article; and to make expenditures from funds obtained from the federal government;
  12. To sue and be sued;
  13. To adopt a seal;
  14. To have perpetual succession;
  15. To make and execute contracts and other instruments necessary or convenient to the exercise of the powers of the commission; and any contract or instrument when signed by the chairman or vice-chairman and secretary or assistant secretary, or, treasurer or assistant treasurer of the commission shall be held to have been properly executed for and on its behalf;
  16. To make and from time to time amend and repeal bylaws, rules, regulations and resolutions;
  17. To make available to the government or municipality or any appropriate agency, board or commission, the recommendations of the commission affecting any area in its field of operation or property therein, which it may deem likely to promote the public health, morals, safety or welfare;
  18. To perform redevelopment project undertakings and activities in one or more contiguous or noncontiguous redevelopment areas which are planned and carried out on the basis of annual increments.

A redevelopment commission is hereby specifically authorized to make (i) plans for carrying out a program of voluntary repair and rehabilitation of buildings and improvements and (ii) plans for the enforcement of laws, codes, and regulations relating to the use of land and the use and occupancy of buildings and improvements, and to the compulsory repair, rehabilitation, demolition, or removal of buildings and improvements. The redevelopment commission is further authorized to develop, test and report methods and techniques, and carry out demonstrations and other activities, for the prevention and elimination of slums and urban blight.

History

(1951, c. 1095, s. 9; 1961, c. 837, ss. 5, 7; 1969, c. 254, s. 1; 1973, c. 426, s. 75; 1981 (Reg. Sess., 1982), c. 1276, s. 14; 2003-403, s. 17; 2006-224, s. 2.3; 2006-259, s. 47; 2011-284, s. 120.)

Editor's Note. - An amendment to subdivision (6) of this section by Session Laws 1993, c. 497, s. 17, was made effective upon certification of approval of an amendment to Article V of the Constitution of North Carolina relating to the authority of any county, city or town to borrow money, without the need of voter approval, and issue financing bonds to be used to finance public activities associated with private economic development projects. This amendment was submitted to the people on November 2, 1993 and was defeated. The amendment to subdivision (6) of this section, therefore, never took effect.

An earlier amendment to this section in Session Laws 1981 (Reg. Sess., 1982), c. 1276, s. 14, was made effective on certification of approval of a state constitutional amendment authorizing the enactment of laws dealing with transactions of the type contemplated by the act. Such an amendment was proposed by Session Laws 1981 (Reg. Sess., 1982), c. 1247, was submitted to the people on Nov. 2, 1982, and was defeated. The amendment to this section therefore, did not go into effect.

Session Laws 2003-403, s. 22, provides that Session Laws 2003-403, being necessary for the prosperity and welfare of North Carolina and its inhabitants, shall be liberally construed to effect its purposes.

Session Laws 2003-403, s. 23, is a severability clause.

Session Laws 2003-403, ss. 24 and 25, provide: "The amendment set out in Section 1 of this act shall be submitted to the qualified voters of the State at the statewide general election in November 2004, which election shall be conducted under the laws then governing elections in the State. Ballots, voting systems, or both may be used in accordance with Chapter 163 of the General Statutes. The question to be used in the voting systems and ballots shall be:

"[ ] FOR [ ] AGAINST

"Constitutional amendment to promote local economic and community development projects by (i) permitting the General Assembly to enact general laws giving counties, cities, and towns the power to finance public improvements associated with qualified private economic and community improvements within development districts, as long as the financing is secured by the additional tax revenues resulting from the enhanced property value within the development district and is not secured by a pledge of the local government's faith and credit or general taxing authority, which financing is not subject to a referendum; and (ii) permitting the owners of property in the development district to agree to a minimum tax value for their property, which is binding on future owners as long as the development district is in existence.

"If a majority of votes cast on the question are in favor of the amendment set out in Section 1 of this act, the State Board of Elections shall certify the amendment to the Secretary of State. The amendment set out in Section 1 of this act and the amendments set out in Sections 2 through 21 of this act become effective upon this certification. The Secretary of State shall enroll the amendment so certified among the permanent records of that office. If a majority of votes cast on the question are not in favor of the amendment set out in Section 1 of this act, that amendment and the amendments set out in Sections 2 through 21 of this act do not go into effect."

The constitutional amendment adding N.C. Const. Art. V, § 14, as proposed in Session Laws 2003-403, s. 1, was adopted by vote of the people at the general election held on November 2, 2004.

Session Laws 2006-259, s. 47, provides: "If House Bill 1965, 2005 Regular Session (Session Laws 2006-224), becomes law, every reference in that act to July 1, 2006, is changed to August 15, 2006."

Effect of Amendments. - Session Laws 2003-403, s. 17, in subdivision (6), deleted "notwithstanding the provisions of G.S. 160-59 but" following "any such property, and," inserted "either before or after the real property that is the subject of the contract is acquired by the Commission (although disposition of the property is still subject to G.S. 160A-514)," and made minor stylistic and punctuation changes throughout. For effective date, see Editor's notes.

Session Laws 2006-224, s. 2.3, as amended by Session Laws 2006-259, s. 47, effective August 15, 2006, inserted "except that eminent domain may only be used to take a blighted parcel" near the beginning of subdivision (6).

Session Laws 2011-284, s. 120, effective June 24, 2011, deleted "bequest" following "grant" near the beginning of subdivision (6).

Legal Periodicals. - For survey of 1978 administrative law, see 57 N.C.L. Rev. 831 (1979).

For article, "Forcing Urban Redevelopment To Proceed 'Building by Building' North Carolina's Flawed Policy Response to Kelo v. City of New London," see 85 N.C.L. Rev. 1784 (2007).

CASE NOTES

Strict Construction. - Statutes prescribing the procedure to condemn lands should be strictly construed. Redevelopment Comm'n v. Grimes, 8 N.C. App. 376, 174 S.E.2d 839 (1970), rev'd on other grounds, 277 N.C. 634, 178 S.E.2d 345 (1971).

Governmental Function. - City was entitled to governmental immunity in a negligence action arising from a trip and fall at a building the city leased to an arts organization because the lease was a governmental function, as (1) the legislature provided urban redevelopment activities undertaken to promote the health, safety, and welfare of North Carolina citizens were governmental functions, (2) the legislature determined private enterprise alone could not address urban blight, (3) the lease was a valid urban redevelopment and downtown revitalization activity, (4) the city did not seek to make a profit from the lease, and (5) the fees the city charged under the lease were not substantial and did not cover the city's operating costs. Meinck v. City of Gastonia, 371 N.C. 497, 819 S.E.2d 353 (2018).

Power of Housing Authority to Close Public Streets. - Although the City of Raleigh did not delegate its police power to close public streets to the Housing Authority of Raleigh, the authority did not lack that power since it had power to take public streets by eminent domain with the city's consent, and to carry out redevelopment projects, which included removal of existing streets, utilities or other improvements. Southern Bell Tel. & Tel. Co. v. Housing Auth., 38 N.C. App. 172, 247 S.E.2d 663 (1978), cert. denied, 296 N.C. 414 (1979).

Company's Costs of Relocating Telephone Lines Not "Necessary Expenditures." - Expenses incurred by a telephone company in relocating telephone lines from an area being redeveloped could not be held to be "necessary expenditures" within the meaning of subdivision (11), since at common law no reimbursement was required, and no expression of legislative intent that relocation expenses should be compensable can be found. Southern Bell Tel. & Tel. Co. v. Housing Auth., 38 N.C. App. 172, 247 S.E.2d 663 (1978), cert. denied, 296 N.C. 414 (1979).

Nor Otherwise Compensable. - The cost of relocating a telephone company's telephone lines from an area being redeveloped could not be reimbursed as a taking under eminent domain, as no property or interest of the telephone company was "taken." Southern Bell Tel. & Tel. Co. v. Housing Auth., 38 N.C. App. 172, 247 S.E.2d 663 (1978), cert. denied, 296 N.C. 414 (1979).

Selection as to Route, Quantity, etc., Is Largely Discretionary. - Where the general power to condemn exists, the right of selection as to route, quantity, etc., is left largely to the discretion of the company or corporation, and does not become the subject of judicial inquiry except on allegations of fact tending to show bad faith on the part of the company or corporation or an oppressive and manifest abuse of the discretion conferred upon them by the law. Redevelopment Comm'n v. Grimes, 277 N.C. 634, 178 S.E.2d 345 (1971).

Area to Be Redeveloped May Contain Vacant Lands or Inoffensive Structures. - The fact that some of the lands in an area to be redeveloped under redevelopment laws are vacant lands or contain structures in themselves inoffensive or innocuous does not invalidate the taking of the property, or invalidate the statute so permitting, according to the form of the contention in the particular case, usually on the ground that the action was justified as a necessary concomitant area, as compared to structure-by-structure rehabilitation. Redevelopment Comm'n v. Grimes, 277 N.C. 634, 178 S.E.2d 345 (1971).

Sufficiency of Condemnation Petition. - A petition to condemn land for urban renewal was sufficient under the Rules of Civil Procedure to state a claim for relief, where it gave notice of the nature and basis of the petitioners' claim and the type of case brought, and alleged generally the occurrence or performance of the conditions precedent required by Chapter 160, Article 37 (now Chapter 160A, Article 11), and Chapter 40A, Article 3. Redevelopment Comm'n v. Grimes, 277 N.C. 634, 178 S.E.2d 345 (1971).

Affirmative Allegation of Compliance with Statutory Requirements Necessary. - In order to invoke the power of condemnation, the redevelopment commission must affirmatively allege compliance with the statutory requirements. Redevelopment Comm'n v. Grimes, 277 N.C. 634, 178 S.E.2d 345 (1971).

Necessary Facts Must Be Alleged in Each Separate Proceeding. - If a redevelopment commission elects to institute a separate and distinct proceeding for each parcel of land taken, it must, in each instance, allege all the facts necessary to justify the taking. Redevelopment Comm'n v. Hagins, 258 N.C. 220, 128 S.E.2d 391 (1962).

Joinder of Owners of Different Tracts in One Proceeding. - Where it is sought to condemn several tracts of land belonging to different owners, all the owners may be joined in one proceeding, in the absence of any statutory provision to the contrary. Such a course is convenient, and can injure no one if damages are separately assessed to each owner. Redevelopment Comm'n v. Hagins, 258 N.C. 220, 128 S.E.2d 391 (1962).

Each owner is entitled to defend upon the ground his property does not qualify for the purpose intended, or that its selection was the result of arbitrary or capricious conduct on the part of the taking agency. Redevelopment Comm'n v. Hagins, 258 N.C. 220, 128 S.E.2d 391 (1962).

Determining Fair Market Value. - In determining the fair market value of property taken in condemnation, it is generally regarded as competent to show the value of the property within a reasonable time before and/or after the taking as bearing upon its value at the time of the appropriation. The rule is necessarily one of variableness in the time limits, depending upon the nature of the property, its location and surrounding circumstances, and whether the evidence offered fairly points to its value at the time in question. Wilson Redevelopment Comm'n v. Stewart, 3 N.C. App. 271, 164 S.E.2d 495 (1968).

The rule allowing evidence of value before or after the taking is analogous to the rule which allows evidence of the purchase price paid for property sometime prior to the date of taking. Wilson Redevelopment Comm'n v. Stewart, 3 N.C. App. 271, 164 S.E.2d 495 (1968).

In determining whether evidence of the value at sometime prior to the taking is admissible to show fair market value at the time of the taking, the inquiry is whether under all the circumstances that appraisal fairly points to the value of the property at the time of the taking. Wilson Redevelopment Comm'n v. Stewart, 3 N.C. App. 271, 164 S.E.2d 495 (1968).

Scope of Cross-Examination. - It would seem that the utmost freedom of cross-examination with reference to sales and sales prices in the vicinity should be accorded the landowner, subject to the right and duty of the presiding judge to exercise his sound discretion in controlling the nature and scope of the cross-examination in the interest of justice and in confining the testimony within the rules of competency, relevancy and materiality. It follows that the condemnor should be accorded similar freedom. Wilson Redevelopment Comm'n v. Stewart, 3 N.C. App. 271, 164 S.E.2d 495 (1968).

Sales prices of nearby property are admissible on cross-examination to test the witness' knowledge of values and for the purposes of impeachment. Wilson Redevelopment Comm'n v. Stewart, 3 N.C. App. 271, 164 S.E.2d 495 (1968).

Role of Judicial Review Limited. - In determining whether a particular area may legally be selected for redevelopment, the role of judicial review is severely limited by the rule that the finding of the redevelopment authority, or similar administrative agency, that a particular area is "blighted," that redevelopment serves a "public use," or the like, is not generally reviewable, unless fraudulent or capricious, or, in some instances, unless the evidence against the finding is overwhelming. Redevelopment Comm'n v. Grimes, 277 N.C. 634, 178 S.E.2d 345 (1971).

A trial court erred in dismissing an action to condemn land for urban renewal where there was no finding that the redevelopment commission failed to comply with the statutory procedures prerequisite to an exercise of the power of eminent domain by it, and there was no allegation, proof or finding that the redevelopment commission arbitrarily abused its discretion or acted in bad faith in selecting the area in question. The court's findings that the property of respondents did not lie within a blighted area or a nonresidential redevelopment area, as defined in G.S. 160A-503, was an insufficient basis for dismissal of the action. Redevelopment Comm'n v. Grimes, 277 N.C. 634, 178 S.E.2d 345 (1971).

Applied in Campbell v. First Baptist Church, 298 N.C. 476, 259 S.E.2d 558 (1979); Redevelopment Comm'n v. Ford, 67 N.C. App. 470, 313 S.E.2d 211 (1984).

Cited in Campbell v. First Baptist Church, 39 N.C. App. 117, 250 S.E.2d 68 (1978).


§ 160A-513. Preparation and adoption of redevelopment plans.

  1. A commission shall prepare a redevelopment plan for any area certified by the planning commission to be a redevelopment area. A redevelopment plan shall be sufficiently complete to indicate its relationship to definite local objectives as to appropriate land uses, improved traffic, public transportation, public utilities, recreational and community facilities and other public improvements and the proposed land uses and building requirements in the redevelopment project area.
  2. The planning commission's certification of a redevelopment area shall be made in conformance with its comprehensive general plan, if any (which may include, inter alia, a plan of major traffic arteries and terminals and a land use plan and projected population densities) for the area.
  3. A commission shall not acquire real property for a development project unless the governing body of the community in which the redevelopment project area is located has approved the redevelopment plan, as hereinafter prescribed; provided, however, that the commission may acquire, through negotiation, specific pieces of property in the redevelopment area prior to the approval of such plan when the governing body finds that advance acquisition of such properties is in the public interest and specifically approves such action.
  4. The redevelopment commission's redevelopment plan shall include, without being limited to, the following:
    1. The boundaries of the area, with a map showing the existing uses of the real property therein;
    2. A land use plan of the area showing proposed uses following redevelopment;
    3. Standards of population densities, land coverage and building intensities in the proposed redevelopment;
    4. A preliminary site plan of the area;
    5. A statement of the proposed changes, if any, in zoning ordinances or maps;
    6. A statement of any proposed changes in street layouts or street levels;
    7. A statement of the estimated cost and method of financing redevelopment under the plan; provided, that where redevelopment activities are performed on the basis of annual increments, such statement to be sufficient shall set forth a schedule of the activities proposed to be undertaken during the incremental period, together with a statement of the estimated cost and method of financing such scheduled activities only;
    8. A statement of such continuing controls as may be deemed necessary to effectuate the purposes of this Article;
    9. A statement of a feasible method proposed for the relocation of the families displaced.
  5. The commission shall hold a public hearing prior to its final determination of the redevelopment plan. Notice of such hearing shall be given once a week for two successive calendar weeks in a newspaper published in the municipality, or if there be no newspaper published in the municipality, by posting such notice at four public places in the municipality, said notice to be published the first time or posted not less than 15 days prior to the date fixed for said hearing.
  6. The commission shall submit the redevelopment plan to the planning commission for review. The planning commission, shall, within 45 days, certify to the redevelopment commission its recommendation on the redevelopment plan, either of approval, rejection or modification, and in the latter event, specify the changes recommended.
  7. Upon receipt of the planning commission's recommendation, or at the expiration of 45 days, if no recommendation is made by the planning commission, the commission shall submit to the governing body the redevelopment plan with the recommendation, if any, of the planning commission thereon. Prior to recommending a redevelopment plan to the governing body for approval, the commission shall consider whether the proposed land uses and building requirements in the redevelopment project area are designed with the general purpose of accomplishing, in conformance with the general plan, a coordinated, adjusted and harmonious development of the community and its environs, which will in accordance with present and future needs promote health, safety, morals, order, convenience, prosperity and the general welfare, as well as efficiency and economy in the process of development, including, among other things, adequate provision for traffic, vehicular parking, the promotion of safety from fire, panic and other dangers, adequate provision for light and air, the promotion of the healthful and convenient distribution of population, the provision of adequate transportation, water, sewerage and other public utilities, schools, parks, recreational and community facilities and other public requirements, the promotion of sound design and arrangements, the wise and efficient expenditure of public funds, the prevention of the recurrence of insanitary or unsafe dwelling accommodations, slums, or conditions or blight.
  8. The governing body, upon receipt of the redevelopment plan and the recommendation (if any) of the planning commission, shall hold a public hearing upon said plan. Notice of such hearing shall be given once a week for two successive weeks in a newspaper published in the municipality, or, if there be no newspaper published in the municipality, by posting such notice at four public places in the municipality, said notice to be published the first time or posted not less than 15 days prior to the date fixed for said hearing. The notice shall describe the redevelopment area by boundaries, in a manner designed to be understandable by the general public. The redevelopment plan, including such maps, plans, contracts, or other documents as form a part of it, together with the recommendation (if any) of the planning commission and supporting data, shall be available for public inspection at a location specified in the notice for at least 10 days prior to the hearing.
  9. The governing body shall approve, amend, or reject the redevelopment plan as submitted.
  10. Subject to the proviso in subsection (c) of this section, upon approval by the governing body of the redevelopment plan, the commission is authorized to acquire property, to execute contracts for clearance and preparation of the land for resale, and to take other actions necessary to carry out the plan, in accordance with the provisions of this Article.
  11. A redevelopment plan may be modified at any time by the commission; provided that, if modified after the sale of real property in the redevelopment project area, the modification must be consented to by the redeveloper of such real property or his successor, or their successors in interest affected by the proposed modification. Where the proposed modification will substantially change the redevelopment plan as previously approved by the governing body the modification must similarly be approved by the governing body as provided above.

At the hearing the governing body shall afford an opportunity to all persons or agencies interested to be heard and shall receive, make known, and consider recommendations in writing with reference to the redevelopment plan.

History

(1951, c. 1095, s. 10; 1961, c. 837, s. 8; 1965, c. 808; 1969, c. 254, s. 2; 1973, c. 426, s. 75.)

CASE NOTES

Urban Redevelopment Plan Not a Necessary Expense Under Former Constitutional Provision. - An urban redevelopment plan was not a necessary expense of a municipality within the meaning of former Art. VII, § 6, Const. 1868, and therefore a municipality might be enjoined from spending ad valorem taxes or levying taxes and issuing bonds for an urban redevelopment project until and unless such project was approved by a majority of the qualified voters of the municipality; any provisions of former G.S. 160-466(b) and 160-470 authorizing a municipality to levy taxes and issue bonds for such purpose without a vote were unconstitutional. Horton v. Redevelopment Comm'n, 259 N.C. 605, 131 S.E.2d 464 (1963). (See now N.C. Const., Art. V, § 2.)

The adoption of the redevelopment plan is equivalent to a cease and desist order preventing any development, rental, or sale of the property within the area. Redevelopment Comm'n v. Hagins, 258 N.C. 220, 128 S.E.2d 391 (1962).

The procedures required by this section are designed to guard against arbitrary action by either the governing body of the community or the redevelopment commission, and thus afford protection to persons owning property in the affected area. Unless these procedures are strictly followed, a redevelopment commission has no authority to exercise the power of eminent domain. Redevelopment Comm'n v. Abeyounis, 1 N.C. App. 270, 161 S.E.2d 191 (1968).

Allegations Required in Stating Cause of Action for Condemnation. - A redevelopment commission, in order to state a cause of action for condemnation, must properly allege, inter alia, a redevelopment plan which complies with this section; compliance with the procedures for approval of the redevelopment plan; and approval of the plan by the governing body of the area in which the project is located. Redevelopment Comm'n v. Abeyounis, 1 N.C. App. 270, 161 S.E.2d 191 (1968).

In order to invoke the power of condemnation, the redevelopment commission must affirmatively allege compliance with the statutory requirements. Redevelopment Comm'n v. Grimes, 277 N.C. 634, 178 S.E.2d 345 (1971).

Plan Must Provide for Financing Acquisition of Redevelopment Area and Other Necessary Costs. - A redevelopment plan must, under subsection (d)(7) of this section, provide a method of financing of acquisition of the redevelopment area, and of all other costs necessary to prepare the area for redevelopment, which method must, of course, be legal and feasible. Horton v. Redevelopment Comm'n, 262 N.C. 306, 137 S.E.2d 115 (1964).

Plan to Finance Entire Area Is Required. - In order that property owners may be protected against threatened taking which is never consummated, the act wisely requires a showing that the acquiring agency has a lawful plan by which, among other things, it may lawfully finance the whole area. Redevelopment Comm'n v. Hagins, 258 N.C. 220, 128 S.E.2d 391 (1962).

Ability to finance the acquisition of one or two tracts is not a showing of a proper plan for financing the development, including the arrangements for relocating displaced families. Redevelopment Comm'n v. Hagins, 258 N.C. 220, 128 S.E.2d 391 (1962).

Cited in Horton v. Redevelopment Comm'n, 264 N.C. 1, 140 S.E.2d 728 (1965).


§ 160A-514. Required procedures for contracts, purchases and sales; powers of commission in carrying out redevelopment project.

  1. A commission may privately contract for engineering, legal, surveying, professional or other similar services without advertisement or bid.
  2. In entering and carrying out any contract for construction, demolition, moving of structures, or repair work or the purchase of apparatus, supplies, materials, or equipment, a commission shall comply with the provisions of Article 8 of Chapter 143 of the General Statutes. In construing such provisions, the commission shall be considered to be the governing board of a "subdivision of the State," and a contract for demolition or moving of structures, shall be treated in the same manner as a contract for construction or repair. Compliance with such provisions shall not be required, however, where the commission enters into contracts with the municipality which created it for the municipality to furnish any such services, work, apparatus, supplies, materials, or equipment; the making of these contracts without advertisement or bids is hereby specifically authorized. Advertisement or bids shall not be required for any contract for construction, demolition, moving of structures, or repair work, or for the purchase of apparatus, supplies, materials, or equipment, where such contract involves the expenditure of public money in an amount less than five hundred dollars ($500.00).
  3. A commission may sell, exchange, or otherwise transfer the fee or any lesser interest in real property in a redevelopment project area to any redeveloper for any public or private use that accords with the redevelopment plan, subject to such covenants, conditions and restrictions as the commission may deem to be in the public interest and in furtherance of the purposes of this Article. In the sale, exchange, or transfer of property, the commission shall exercise the authority and procedure set out in G.S. 160A-268, 160A-269, 160A-270, 160A-271, or 160A-279 for the disposition of property by a city council. Provided, however, that all sales, exchanges, or other transfers of real property from July 9, 1985, to December 31, 1987, in accordance with the provisions of this section prior to its revision on July 9, 1985, shall be and are valid in all respects.
  4. A commission may sell personal property having a value of less than five hundred dollars ($500.00) at private sale without advertisement and bids.
  5. In carrying out a redevelopment project, the commission may:
    1. With or without consideration and at private sale convey to the municipality in which the project is located such real property as, in accordance with the redevelopment plan, is to be laid out into streets, alleys, and public ways.
    2. With or without consideration, convey at private sale, grant, or dedicate easements and rights-of-way for public utilities, sewers, streets and other similar facilities, in accordance with the redevelopment plan.
    3. With or without consideration and at private sale convey to the municipality, county or other appropriate public body such real property as, in accordance with the redevelopment plan, is to be used for parks, schools, public buildings, facilities or other public purposes.
    4. In addition to other authority contained in this section, after a public hearing advertised in accordance with the provisions of G.S. 160A-513(e), and subject to the approval of the governing body of the municipality, convey to a nonprofit association or corporation organized and operated exclusively for educational, scientific, literary, cultural, charitable or religious purposes, no part of the net earnings of which inure to the benefit of any private shareholder or individual, such real property as, in accordance with the redevelopment plan, is to be used for the purposes of such associations or corporations. Such conveyance shall be for such consideration as may be agreed upon by the commission and the association or corporation, which shall not be less than the fair value of the property agreed upon by a committee of three professional real estate appraisers currently practicing in the State, which committee shall be appointed by the commission. All conveyances made under the authority of this subsection shall contain restrictive covenants limiting the use of property so conveyed to the purposes for which the conveyance is made.
  6. After receiving the required approval of a sale from the governing body of the municipality, the commission may execute any required contracts, deeds, and other instruments and take all steps necessary to effectuate any such contract or sale. Any contract of sale between a commission and a redeveloper may contain, without being limited to, any or all of the following provisions:
    1. Plans prepared by the redeveloper or otherwise and such other documents as may be required to show the type, material, structure and general character of the proposed redevelopment;
    2. A statement of the use intended for each part of the proposed redevelopment;
    3. A guaranty of completion of the proposed redevelopment within specified time limits;
    4. The amount, if known, of the consideration to be paid;
    5. Adequate safeguards for proper maintenance of all parts of the proposed redevelopment;
    6. Such other continuing controls as may be deemed necessary to effectuate the purposes of this Article.
  7. The commission may temporarily rent or lease, operate and maintain real property in a redevelopment project area, pending the disposition of the property for redevelopment, for such uses and purposes as may be deemed desirable even though not in conformity with the redevelopment plan.

Any deed to a redeveloper in furtherance of a redevelopment contract shall be executed in the name of the commission, by its proper officers, and shall contain in addition to all other provisions, such conditions, restrictions and provisions as the commission may deem desirable to run with the land in order to effectuate the purposes of this Article.

History

(1951, c. 1095, s. 11; 1961, c. 837, s. 9; 1963, c. 1212, ss. 1, 2; 1965, c. 679, s. 2; 1967, c. 24, s. 18; c. 932, s. 1; 1973, c. 426, s. 75; 1985, c. 665, ss. 1, 2; 1987, c. 364; 1989, c. 413; 2003-66, ss. 1, 2.)

Local Modification. - Craven and Duplin: 1963, c. 1212, s. 4; 1965, cc. 539, 818; Durham: 1971, c. 1060; 1973, c. 308; Edgecombe: 1963, c. 1212, s. 4; 1965, cc. 539, 818; Lee: 1971, c. 1060; 1973, c. 308; Lenoir: 1983, c. 207; Macon and Madison: 1963, c. 1212, s. 4; 1965, cc. 539, 818; Mecklenburg: 1971, c. 1060; 1973, c. 308; New Hanover: 1963, c. 1212, s. 4; 1965, cc. 539, 818; Robeson and Sampson: 1971, c. 1060; 1973, c. 308; Swain: 1963, c. 1212, s. 4; 1965, cc. 539, 818; Wayne: 1971, c. 1060; 1973, c. 308; Yancey: 1963, c. 1212, s. 4; 1965, cc. 539, 818; city of Asheboro: 1971, c. 1060; 1973, c. 308; cities of Charlotte and Durham: 1965, c. 1206; 1967, c. 815; city of Fayetteville: 1983, c. 235; city of Goldsboro: 1973, c. 346; 1983 (Reg. Sess., 1984), c. 947; 1985, c. 281; city of Kinston: 1981, c. 868; 1983, c. 207; city of New Bern: 1965, c. 1206; 1967, c. 815; 1971, c. 1060; 1973, c. 1104; city of Raleigh: 1973, c. 346; 1977, c. 76; city of Williamston: 1971, c. 1060; 1975, c. 470; city of Wilmington: 1979, 2nd Sess., c. 1321; 1981, c. 582; town of Chapel Hill: 1973, c. 346; 1975, c. 379; 1977, c. 76; town of Princeville: 1983, c. 265; town of Tarboro: 1973, c. 346; 1975, c. 379.

Session Laws 1977, c. 76, amended Session Laws 1973, c. 346, without making any reference to Session Laws 1975, c. 379, which made the 1973 act applicable to the town of Tarboro.

Legal Periodicals. - For survey of 1981 administrative law, see 60 N.C.L. Rev. 1165 (1982).

CASE NOTES

Discretion of Commission. - Each subsection of this section confers upon a redevelopment commission the authority to perform certain acts necessary to carry out the redevelopment project, and the use of the word "may" merely denotes that the commission is not required to do each and every act authorized in this section. However, should a commission elect to exercise the authority conferred upon it by a particular subsection, then the procedural requirements "shall" be followed, under subsection (c) of this section. Thus, the use of the word "may" in subdivision (e)(4) of this section is not mandatory in the sense that it requires a commission to convey to a nonprofit association. Whether there shall be a conveyance is a matter in the discretion of the commission. However, once a commission decides to exercise its authority to so convey, that conveyance must be after a public hearing and "shall be for such consideration as may be agreed upon by the commission and the association or corporation." Campbell v. First Baptist Church, 298 N.C. 476, 259 S.E.2d 558 (1979).

For interpretation of subsections (c) and (d) of this section, see Porsh Bldrs., Inc. v. City of Winston-Salem, 61 N.C. App. 682, 301 S.E.2d 530, cert. denied, 308 N.C. 675, 304 S.E.2d 757 (1983).

"Exchanges" Within Rule Requiring Advertisement and Bids. - In light of the specifically outlined exceptions to the general rule, coupled with the specific inclusion of "exchanges" within the proviso of subsection (c) of this section, "exchanges" are within the general rule requiring advertisement and bids. Campbell v. First Baptist Church, 298 N.C. 476, 259 S.E.2d 558 (1979).

Treatment of "Exchanges". - An "exchange" is included within the provisions of subsection (d) of this section, unless the commission elects to treat it as a private sale and proceed under the provisions of subsection (e) of this section. Campbell v. First Baptist Church, 298 N.C. 476, 259 S.E.2d 558 (1979).

Exchange of Property with Church Covered by Subsection (d). - The "exchange" of property between a redevelopment commission and a "redeveloper" such as a church is nothing more than a "private sale" of real property to "a nonprofit association or corporation operated exclusively for educational, scientific, literary, cultural, charitable or religious purposes" as described in subsection (d) of this section, and such exchange must be in compliance with all of the requirements of subsection (d). Campbell v. First Baptist Church, 39 N.C. App. 117, 250 S.E.2d 68 (1978), aff'd, 298 N.C. 476, 259 S.E.2d 558 (1979).

Limits of Municipal Governing Body's Authority Under Subsection (d). - The provision of subsection (d) of this section, making sales of municipal redevelopment commission property subject to the approval of the governing body of the municipality, merely places final authority in the board to determine whether all submitted bids satisfy the zoning requirements of the district and are in general conformity with the redevelopment plan, and does not give the board authority to determine which bid "more nearly" complies with the redevelopment plan. Porsh Bldrs., Inc. v. City of Winston-Salem, 302 N.C. 550, 276 S.E.2d 443 (1981).

Acceptance of Highest Responsible Bid Required. - In selling the property of a municipal redevelopment commission to private developers, the municipal board of aldermen is required to accept the "highest responsible bid," if any, where that bid complies with the applicable zoning restrictions and the redevelopment plan for the property to be sold. Porsh Bldrs., Inc. v. City of Winston-Salem, 302 N.C. 550, 276 S.E.2d 443 (1981).

Criteria in Determining "Responsible" Bidder. - In this section, which provides for sale of municipal redevelopment commission property to the "highest responsible bidder," the term "responsible" was intended to give the municipality power to use its discretion only to the extent of determining whether a bidder had the resources and financial ability to complete the project set forth in his proposal for the development of the property; it does not allow the municipality to consider which bid best complies with the redevelopment plan. Porsh Bldrs., Inc. v. City of Winston-Salem, 302 N.C. 550, 276 S.E.2d 443 (1981).

Lower Bid "More Nearly" Complying with Plan May Not Be Accepted. - The provision of subsection (d) of this section giving the governing board of a municipality the power to reject all bids for redevelopment commission property does not impliedly authorize the board to reject the highest bid if a lower bid "more nearly" complies with the redevelopment plan. Porsh Bldrs., Inc. v. City of Winston-Salem, 302 N.C. 550, 276 S.E.2d 443 (1981).

Procedure for Conveyance to "Nonprofit Association or Corporation". - Before it can lawfully convey property to a "nonprofit association or corporation," a redevelopment commission must: (1) Hold a public hearing on the proposed conveyance after proper advertisement; (2) Get approval for the proposed conveyance from the governing body of the municipality; and (3) Agree with the proposed transferee on consideration for the conveyance which is not less than the fair value of the property as determined by a committee of three professional real estate appraisers. Campbell v. First Baptist Church, 39 N.C. App. 117, 250 S.E.2d 68 (1978), aff'd, 298 N.C. 476, 259 S.E.2d 558 (1979).

Public Purpose Not Negated by Sale to Private Redeveloper. - The fact that a municipal redevelopment commission may exchange, sell or transfer slum property condemned by it for redevelopment to private persons does not affect the question of whether the taking is for a public use, since the statute provides safeguards in the use and control of the land by the private developer to prevent the area from again becoming a blighted area, and the sale or transfer to the redeveloper is merely incidental or collateral to the primary purpose of clearing the slum area in the interest of the public health, safety, morals and welfare. Redevelopment Comm'n v. Security Nat'l Bank, 252 N.C. 595, 114 S.E.2d 688 (1960).

The condemnation of blighted and slum areas within a municipality and the sale or exchange thereof to any redeveloper for residential, recreational, commercial, industrial or other uses or for public use in accordance with the redevelopment plan, under safeguards to prevent such areas from reverting to slum areas, is in the interest of the public health, safety, morals and welfare, and therefore such condemnation is for a public purpose. Martin v. North Carolina Hous. Corp., 277 N.C. 29, 175 S.E.2d 665 (1970).

Applied in Campbell v. First Baptist Church, 19 N.C. App. 343, 199 S.E.2d 34 (1973); Campbell v. First Baptist Church, 51 N.C. App. 393, 276 S.E.2d 712 (1981); Redevelopment Comm'n v. Ford, 67 N.C. App. 470, 313 S.E.2d 211 (1984).

Cited in State ex rel. Utils. Comm'n v. Empire Power Co., 112 N.C. App. 265, 435 S.E.2d 553 (1993).


§ 160A-515. Eminent domain.

The commission may exercise the right of eminent domain in accordance with the provisions of Chapter 40A, but only where the property to be taken is a blighted parcel.

History

(1951, c. 1095, s. 12; 1965, c. 679, s. 3; c. 1132; 1967, c. 932, ss. 2, 3; 1973, c. 426, s. 75; 1981, c. 919, s. 30; 2006-224, s. 2.4; 2006-259, s. 47.)

Editor's Note. - Session Laws 2006-259, s. 47, provides: "If House Bill 1965, 2005 Regular Session (Session Laws 2006-224), becomes law, every reference in that act to July 1, 2006, is changed to August 15, 2006."

Effect of Amendments. - Session Laws 2006-224, s. 2.4, as amended by Session Laws 2006-259, s. 47, effective August 15, 2006, added "but only where the property to be taken is a blighted parcel" at the end.

Legal Periodicals. - For article urging revision and recodification of North Carolina's former eminent domain laws, see 45 N.C.L. Rev. 587 (1967).

CASE NOTES

Strict Construction. - The exercise of the power of eminent domain is in derogation of common right, and all laws conferring such power must be strictly construed. Redevelopment Comm'n v. Abeyounis, 1 N.C. App. 270, 161 S.E.2d 191 (1968); Greensboro-High Point Airport Auth. v. Irvin, 2 N.C. App. 341, 163 S.E.2d 118 (1968).

Statutes prescribing the procedure to condemn lands should be strictly construed. Redevelopment Comm'n v. Grimes, 8 N.C. App. 376, 174 S.E.2d 839 (1970), rev'd on other grounds, 277 N.C. 634, 178 S.E.2d 345 (1971).

Power of Housing Authority to Close Public Streets. - Although the City of Raleigh did not delegate its police power to close public streets to the Housing Authority of Raleigh, the authority did not lack that power since it had power to take public streets by eminent domain with the city's consent, and to carry out redevelopment projects, which included removal of existing streets, utilities or other improvements. Southern Bell Tel. & Tel. Co. v. Housing Auth., 38 N.C. App. 172, 247 S.E.2d 663 (1978), cert. denied, 296 N.C. 414 (1979).

Procedure to Acquire Property When Redevelopment Corporation and Landowner Unable to Agree. - When a redevelopment corporation, possessing the power of eminent domain under G.S. 160A-512, was unable to agree with the owner for the purchase of property required for its purposes, the procedure to acquire the property was by a special proceeding as provided in former Chapter 40, Article 2, except as modified by this section. (See now Chapter 40A.) Redevelopment Comm'n v. Grimes, 8 N.C. App. 376, 174 S.E.2d 839 (1970), rev'd on other grounds, 277 N.C. 634, 178 S.E.2d 345 (1971).

As to necessity for condemnation petition to affirmatively show that statutory provisions have been complied with, see Redevelopment Comm'n v. Grimes, 8 N.C. App. 376, 174 S.E.2d 839 (1970), rev'd on other grounds, 277 N.C. 634, 178 S.E.2d 345 (1971).

Applied in City of Greensboro v. Wall, 247 N.C. 516, 101 S.E.2d 413 (1958); Redevelopment Comm'n v. Grimes, 277 N.C. 634, 178 S.E.2d 345 (1971).

Opinions of Attorney General

Editor's Note. - Some of the opinions cited below were decided under former similar statutory provisions including G.S. 160-456.

Attorneys' fees are not recoverable unless a condemnation action is filed. See opinion of Attorney General to Mr. William I. Cochran, Jr., Executive Director, Redevelopment Commission of the City of Washington, 40 N.C.A.G. 637 (1969), issued under former G.S. 160-456(21).

Attorneys' fees are recoverable where a condemnation action is filed and the case is subsequently terminated by consent judgment. See opinion of Attorney General to Mr. William I. Cochran, Jr., Executive Director, Redevelopment Commission of the City of Washington, 40 N.C.A.G. 637 (1969), issued under former G.S. 160-456(21).

§ 160A-515.1. Project development financing.

  1. Authorization. - A city may finance a redevelopment project and any related public improvements with the proceeds of project development financing debt instruments, issued pursuant to Article 6 of Chapter 159 of the General Statutes, together with any other revenues that are available to the city. Before it receives the approval of the Local Government Commission for issuance of project development financing debt instruments, the city's governing body must define a development financing district and adopt a development financing plan for the district. The city may act jointly with a county to finance a project, define a development financing district, and adopt a development financing plan for the district.
  2. Development Financing District. - A development financing district shall comprise all or portions of one or more redevelopment areas defined pursuant to this Article. The total land area within development financing districts in a city, including development financing districts created pursuant to G.S. 158-7.3, may not exceed five percent (5%) of the total land area of the city. For purposes of this section, land in a district created by a county that subsequently becomes part of a city does not count against the city's five-percent (5%) limit unless the city and the county have entered into an agreement pursuant to G.S. 159-107(e).
  3. Development Financing Plan. - The development financing plan must be compatible with the redevelopment plan or plans for the redevelopment area or areas included within the district. The development financing plan must include all of the following:
    1. A description of the boundaries of the development financing district.
    2. A description of the proposed development of the district, both public and private.
    3. The costs of the proposed public activities.
    4. The sources and amounts of funds to pay for the proposed public activities.
    5. The base valuation of the development financing district.
    6. The projected incremental valuation of the development financing district.
    7. The estimated duration of the development financing district.
    8. A description of how the proposed development of the district, both public and private, will benefit the residents and business owners of the district in terms of jobs, affordable housing, or services.
    9. A description of the appropriate ameliorative activities which will be undertaken if the proposed projects have a negative impact on residents or business owners of the district in terms of jobs, affordable housing, services, or displacement.
    10. A requirement that the initial users of any new manufacturing facilities that will be located in the district and that are included in the plan will comply with the wage requirements in subsection (d) of this section.
  4. Wage Requirements. - A development financing plan shall include a requirement that the initial users of a new manufacturing facility to be located in the district and included in the plan must pay its employees an average weekly manufacturing wage that is either above the average manufacturing wage paid in the county in which the district will be located or not less than ten percent (10%) above the average weekly manufacturing wage paid in the State. The plan may include information on the wages to be paid by the initial users of a new manufacturing facility to its employees and any provisions necessary to implement the wage requirement. The issuing unit's governing body shall not adopt a plan until the Secretary of Commerce certifies that the Secretary has reviewed the average weekly manufacturing wage required by the plan to be paid to the employees of a new manufacturing facility and has found either (i) that the wages proposed by the initial users of a new manufacturing facility are in compliance with the amount required by this subsection or (ii) that the plan is exempt from the requirement of this subsection. The Secretary of Commerce may exempt a plan from the requirement of this subsection if the Secretary receives a resolution from the issuing unit's governing body requesting an exemption from the wage requirement and a letter from an appropriate State official, selected by the Secretary, finding that unemployment in the county in which the proposed district is to be located is especially severe. Upon the creation of the district, the unit of local government proposing the creation of the district shall take any lawful actions necessary to require compliance with the applicable wage requirement by the initial users of any new manufacturing facility included in the plan; however, failure to take such actions or obtain such compliance shall not affect the validity of any proceedings for the creation of the district, the existence of the district, or the validity of any debt instruments issued under Article 6 of Chapter 159 of the General Statutes. All findings and determinations made by the Secretary of Commerce under this subsection shall be binding and conclusive. For purposes of this section, the term "manufacturing facility" means any facility that is used in the manufacturing or production of tangible personal property, including the processing resulting in a change in the condition of the property.
  5. County Review. - Before adopting a plan for a development financing district, the city council shall send notice of the plan, by first-class mail, to the board of county commissioners of the county or counties in which the development financing district is located. The person mailing the notice shall certify that fact, and the date thereof, to the city council, and the certificate is conclusive in the absence of fraud. Unless the board of county commissioners (or either board, if the district is in two counties) by resolution disapproves the proposed plan within 28 days after the date the notice is mailed, the city council may proceed to adopt the plan.
  6. Environmental Review. - Before adopting a plan for development financing districts, the city council shall submit the plan to the Secretary of Environmental Quality to review to determine if the construction and operation of any new manufacturing facility in the district will have a materially adverse effect on the environment and whether the company that will operate the facility has operated in substantial compliance with federal and State laws, regulations, and rules for the protection of the environment. If the Secretary finds that the new manufacturing facility will not have a materially adverse effect on the environment and that the company that will operate the facility has operated other facilities in compliance with environmental requirements, the Secretary shall approve the plan. In making the determination on environmental impact, the Secretary shall use the same criteria that apply to the determination under G.S. 159C-7 of whether an industrial project will have a materially adverse effect on the environment. The findings of the Secretary are conclusive and binding.
  7. Plan Adoption. - Before adopting a plan for a development financing district, the city council shall hold a public hearing on the plan. The council shall, no less than 30 days before the day of hearing, cause notice of the hearing to be mailed by first-class mail to all property owners and mailing addresses within the proposed development financing district. The council shall also, no more than 30 days and no less than 14 days before the day of the hearing, cause notice of the hearing to be published once in a newspaper of general circulation in the city. The notice shall state the time and place of the hearing, shall specify its purpose, and shall state that a copy of the proposed plan is available for public inspection in the office of the city clerk. At the public hearing, the council shall hear anyone who wishes to speak with respect to the proposed district and proposed plan. Unless a board of county commissioners or the Secretary of Environmental Quality has disapproved the plan pursuant to subsection (e) or (f) of this section, the council may adopt the plan, with or without amendment, at any time after the public hearing. However, the plan and the district do not become effective until the city's application to issue project development financing debt instruments has been approved by the Local Government Commission, pursuant to Article 6 of Chapter 159 of the General Statutes.
  8. Plan Modification. - Subject to the limitations of this subsection, a city council may, after the effective date of the district, amend a development financing plan adopted for a development financing district. Before making any amendment, the city council shall follow the procedures and meet the requirements of subsections (d) through (g) of this section. The boundaries of the district may be enlarged only during the first five years after the effective date of the district and only if the area to be added has been or is about to be developed and the development is primarily attributable to development that has occurred within the district, as certified by the Local Government Commission. The boundaries of the district may be reduced at any time, but the city may agree with the holders of any project development financing debt instruments to restrict its power to reduce district boundaries.
  9. Plan Implementation. - In implementing a development financing plan, a city may act directly, through a redevelopment commission, through one or more contracts with private agencies, or by any combination of these. A private agency that enters into a contract with a city for the implementation of a development financing plan is subject to the provisions of Article 8 of Chapter 143 of the General Statutes only to the extent specified in the contract.

History

(2003-403, s. 18; 2005-238, s. 12; 2006-211, s. 4; 2015-241, s. 14.30(v).)

Editor's Note. - Session Laws 2003-403, s. 25, made this section effective upon certification of approval of amendment to Article V, § 14 of the Constitution of North Carolina, as proposed in Session Laws 2003-403, § 1.

A G.S. 160A-515.1 was enacted by Session Laws 1993, c. 497, s. 18, but was made effective upon certification of approval of an amendment to Article V of the Constitution of North Carolina relating to the authority of any county, city or town to borrow money, without the need of voter approval, and issue financing bonds to be used to finance public activities associated with private economic development projects. This amendment was submitted to the people on November 2, 1993 and was defeated. The section, therefore, never took effect.

An earlier G.S. 160A-515.1 was enacted by Session Laws 1981 (Reg. Sess., 1982), c. 1276, s. 15, but was made effective on certification of approval of an amendment to the state Constitution authorizing the enactment of general laws dealing with transactions of the type contemplated by the act. Such an amendment was proposed by Session Laws 1981 (Reg. Sess., 1982), c. 1247, was submitted to the people on November 2, 1982, and was defeated. The section, therefore, never took effect.

Session Laws 2003-403, s. 22, provides that Session Laws 2003-403, being necessary for the prosperity and welfare of North Carolina and its inhabitants, shall be liberally construed to effect its purposes.

Session Laws 2003-403, s. 23, is a severability clause.

Session Laws 2003-403, ss. 24 and 25, provide: "The amendment set out in Section 1 of this act shall be submitted to the qualified voters of the State at the statewide general election in November 2004, which election shall be conducted under the laws then governing elections in the State. Ballots, voting systems, or both may be used in accordance with Chapter 163 of the General Statutes. The question to be used in the voting systems and ballots shall be:

"[ ] FOR [ ] AGAINST

"Constitutional amendment to promote local economic and community development projects by (i) permitting the General Assembly to enact general laws giving counties, cities, and towns the power to finance public improvements associated with qualified private economic and community improvements within development districts, as long as the financing is secured by the additional tax revenues resulting from the enhanced property value within the development district and is not secured by a pledge of the local government's faith and credit or general taxing authority, which financing is not subject to a referendum; and (ii) permitting the owners of property in the development district to agree to a minimum tax value for their property, which is binding on future owners as long as the development district is in existence.

"If a majority of votes cast on the question are in favor of the amendment set out in Section 1 of this act, the State Board of Elections shall certify the amendment to the Secretary of State. The amendment set out in Section 1 of this act and the amendments set out in Sections 2 through 21 of this act become effective upon this certification. The Secretary of State shall enroll the amendment so certified among the permanent records of that office. If a majority of votes cast on the question are not in favor of the amendment set out in Section 1 of this act, that amendment and the amendments set out in Sections 2 through 21 of this act do not go into effect."

The constitutional amendment adding N.C. Const. Art. V, § 14, as proposed in Session Laws 2003-403, s. 1, was adopted by vote of the people at the general election held on November 2, 2004.

Session Laws 2005-238, s. 15, provides: "The General Assembly finds that the provisions of this act are necessary for the health and welfare of the State and as such finds that the act shall be construed liberally to effect its purposes."

Session Laws 2005-238, s. 16, is a severability clause.

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2005-238, s. 12, effective August 1, 2005, added the last sentence in subsection (b).

Session Laws 2006-211, s. 4, effective August 8, 2006, added the last sentence in subsection (i).

Session Laws 2015-241, s. 14.30(v), effective July 1, 2015, substituted "Secretary of Environmental Quality" for "Secretary of Environment and Natural Resources" in subsections (f) and (g).

Legal Periodicals. - For note, "Tax Increment Financing in North Carolina: The Myth of the Countermajoritarian Difficulty," see 83 N.C. L. Rev. 1526 (2005).

§ 160A-516. Issuance of bonds.

  1. The commission shall have power to issue bonds from time to time for any of its corporate purposes including the payment of principal and interest upon any advances for surveys and plans for redevelopment projects. The commission shall also have power to issue refunding bonds for the purpose of paying or retiring or in exchange for bonds previously issued by it. The commission may issue such types of bonds as it may determine, including (without limiting the generality of the foregoing) bonds on which the principal and interest are payable:
    1. Exclusively from the income, proceeds, and revenues of the redevelopment project financed with the proceeds of such bonds; or
    2. Exclusively from the income, proceeds, and revenues of any of its redevelopment projects whether or not they are financed in whole or in part with the proceeds of such bonds; provided, that any such bonds may be additionally secured by a pledge of any loan, grant or contributions, or parts thereof, from the federal government or other source, or a mortgage of any redevelopment project or projects of the commission.
  2. Neither the commissioners of a commission nor any person executing the bonds shall be liable personally on the bonds by reason of the issuance of the bonds. The bonds and other obligations of the commission (and the bonds and obligations shall so state on their face) shall not be a debt of the municipality, the county, or the State and neither the municipality, the county, nor the State shall be liable on the bonds, nor in any event shall the bonds or obligations be payable out of any funds or properties other than those of the commission acquired for the purpose of this Article. The bonds shall not constitute an indebtedness of the municipality within the meaning of any constitutional or statutory debt limitation or restriction. Bonds of a commission are declared to be issued for an essential public and governmental purpose and to be public instrumentalities. The bonds are exempt from all State, county, and municipal taxation or assessment, direct or indirect, general or special, whether imposed for the purpose of general revenue or otherwise, excluding income taxes on the gain from the transfer of the bonds and notes, and franchise taxes. The interest on the bonds is not subject to taxation as income. Bonds may be issued by a commission under this Article notwithstanding any debt or other limitation prescribed in any statute. This Article without reference to other statutes of the State shall constitute full and complete authority for the authorization and issuance of bonds by the commission under this Article and this authorization and issuance shall not be subject to any conditions, restrictions, or limitations imposed by any other statute whether general, special, or local, except as provided in subsection (d) of this section.
  3. Bonds of the commission shall be authorized by its resolution and may be issued in one or more series and shall bear such date or dates, be payable upon demand or mature at such time or times, bear interest at such rate or rates, be in such denomination or denominations, be in such form either coupon or registered, carry such conversion or registration privileges, have such rank or priority, be executed in such manner, be payable in such medium of payment, at such place or places, and be subject to such terms of redemption (with or without premium) as such resolution, its trust indenture or mortgage may provide.
  4. Bonds shall be sold by the redevelopment commission at either public or private sale upon such terms and in such manner, consistent with the provisions hereof, as the redevelopment commission may determine. Prior to the public sale of bonds hereunder, the redevelopment commission shall first cause a notice of the sale of the bonds to be published at least once at least 10 days before the date fixed for the receipt of bids for the bonds (i) in a newspaper having the largest or next largest circulation in the redevelopment commission's area of operation and (ii) in a publication that carries advertisements for the sale of State and municipal bonds published in the City of New York in the State of New York; provided, however, that in its discretion the redevelopment commission may cause any such notice of sale in the New York publication to be published as part of a consolidated notice of sale offering for sale the obligations of other public agencies in addition to the redevelopment commission's bonds, and provided, further, that any bonds may be sold by the redevelopment commission at private sale upon such terms and conditions as are mutually agreed upon between the commission and the purchaser. No bonds issued pursuant to this Article shall be sold at less than par and accrued interest. The provisions of the Local Government Finance Act shall not be applicable with respect to bonds sold or issued under this Article.
  5. In case any of the commissioners or officers of the commission whose signatures appear on any bonds or coupons shall cease to be such commissioners or officers before the delivery of such bonds, such signatures shall, nevertheless, be valid and sufficient for all purposes, the same as if such commissioners or officers had remained in office until such delivery. Any provisions of any law to the contrary notwithstanding, any bonds issued pursuant to this Article shall be fully negotiable.
  6. In any suit, action or proceedings involving the validity or enforceability of any bond of the commission or the security therefor, any such bond reciting in substance that it has been issued by the commission to aid in financing a redevelopment project, as herein defined, shall be conclusively deemed to have been issued for such purpose and such project shall be conclusively deemed to have been planned, located and carried out in accordance with the purposes and provisions of this Article.
  7. Bonds (including, without limitation, interim and long-term notes) may be issued or sold under this Article at private sale upon such terms and conditions as may be negotiated and mutually agreed upon by the commission and the purchaser (who may be the government or other public or private lender or purchaser).

History

(1951, c. 1095, s. 13; 1961, c. 837, s. 10; 1971, c. 87, s. 3; 1973, c. 426, s. 75; 1981, c. 907, ss. 3, 4; 1995, c. 46, s. 20; 2015-264, s. 16( l ).)

Local Modification. - City of Fayetteville: 1981, c. 756; 1983, c. 235.

Effect of Amendments. - Session Laws 2015-264, s. 16( l ), effective October 1, 2015, deleted "inheritance and gift taxes" preceding "income taxes on the gain" near the middle of the fifth sentence of subsection (b).

CASE NOTES

Constitutionality. - This section is not unconstitutional. Horton v. Redevelopment Comm'n, 262 N.C. 306, 137 S.E.2d 115 (1964).

Any provisions of subsection (d) of this section and G.S. 160A-520 to the effect that bonds may be sold and issued by a redevelopment commission for the purpose of carrying out the provisions of an urban redevelopment plan or project under the provisions of the Urban Redevelopment Law, or that any municipality located within the area of such a commission may appropriate funds to a redevelopment commission for the purpose of aiding such a commission in carrying out any of its powers and functions under the Urban Redevelopment Law, and that to obtain funds for this purpose, the municipality may levy taxes, and may in the manner prescribed by law issue and sell its bonds, without the approval of a vote of the qualified voters in the municipality, would be repugnant to the provisions of former Art. VII, § 6, Const. 1868, as amended in 1962. Horton v. Redevelopment Comm'n, 259 N.C. 605, 131 S.E.2d 464 (1963). (See now N.C. Const., Art. V, § 2.)

Subsection (d) of this section does nothing more than provide alternative methods for the sale of bonds issued by the commission, and further provides that no such bonds shall be sold at less than par and accrued interest. Horton v. Redevelopment Comm'n, 262 N.C. 306, 137 S.E.2d 115 (1964).


§ 160A-517. Powers in connection with issuance of bonds.

  1. In connection with the issuance of bonds or the incurring of obligations and in order to secure the payment of such bonds or obligations, the commission, in addition to its other powers, shall have power:
    1. To pledge all or any part of its gross or net rents, fees or revenues to which its right then exists or may thereafter come into existence;
    2. To mortgage all or any part of its real or personal property, then owned or thereafter acquired;
    3. To covenant against pledging all or any part of its rents, fees and revenues, or against mortgaging all or any part of its real or personal property, to which its right or title then exists or may thereafter come into existence or against permitting or suffering any lien on such revenues or property; to covenant with respect to limitations on its right to sell, lease or otherwise dispose of any redevelopment project or any part thereof; and to covenant as to what other, or additional debts or obligations may be incurred by it;
    4. To covenant as to the bonds to be issued and as to the issuance of such bonds in escrow or otherwise, and as to the use and disposition of the proceeds thereof; to provide for the replacement of lost, destroyed or mutilated bonds, to covenant against extending the time for the payment of its bonds or interest thereon; and to covenant for the redemption of the bonds and to provide the terms and conditions thereof;
    5. To covenant (subject to the limitations contained in this Article) as to the amount of revenues to be raised each year or other period of time by rents, fees and other revenues, and as to the use and disposition to be made thereof; to create or to authorize the creation of special funds for moneys held for operating costs, debt service, reserves, or other purposes, and to covenant as to the use and disposition of the moneys held in such funds;
    6. To prescribe the procedure, if any, by which the terms of any contract with bondholders may be amended or abrogated, the amount of bonds the holders of which must consent thereto and the manner in which such consent may be given;
    7. To covenant as to the use, maintenance and replacement of any of or all of its real or personal property, the insurance to be carried thereon and the use and disposition of insurance moneys, and to warrant its title to such property;
    8. To covenant as to the rights, liabilities, powers and duties arising upon the breach by it of any covenants, conditions or obligations; and to covenant and prescribe as to events of default and terms and conditions upon which any or all of its bonds or obligations shall become or may be declared due before maturity and as to the terms and conditions upon which such declaration and its consequences may be waived;
    9. To vest in any obligees of the commissions the right to enforce the payment of the bonds or any covenants securing or relating to the bonds; to vest in any obligee or obligees holding a specified amount in bonds the right, in the event of a default to take possession of and use, operate and manage any redevelopment project or any part thereof, title to which is in the commission, or any funds connected therewith, and to collect the rents and revenues arising therefrom and to dispose of such moneys in accordance with the agreement with such obligees; to provide for the powers and duties of such obligees and to limit the liabilities thereof, and to provide the terms and conditions upon which such obligees may enforce any covenant or rights securing or relating to the bonds; and
    10. To exercise all or any part or combination of the powers herein granted; to make such covenants (other than and in addition to the covenants herein expressly authorized) and to do any and all such acts and things as may be necessary or convenient or desirable in order to secure its bonds, or, in the absolute discretion of said commission, as will tend to make the bonds more marketable notwithstanding that such covenants, acts or things may not be enumerated herein.
  2. The commission shall have power by its resolution, trust indenture, mortgage lease or other contract to confer upon any obligee holding or representing a specified amount in bonds, the right (in addition to all rights that may otherwise be conferred), upon the happening of an event of default as defined in such resolution or instrument, by suit, action or proceeding in any court of competent jurisdiction:
    1. To cause possession of any redevelopment project or any part thereof title to which is in the commission, to be surrendered to any such obligee;
    2. To obtain the appointment of a receiver of any redevelopment project of said commission or any part thereof, title to which is in the commission and of the rents and profits therefrom. If such receiver be appointed, he may enter and take possession of, carry out, operate and maintain such project or any part therefrom and collect and receive all fees, rents, revenues, or other charges thereafter arising therefrom, and shall keep such moneys in a separate account or accounts and apply the same in accordance with the obligations of said commission as the court shall direct; and
    3. To require said commission and the commissioners, officers, agents and employees thereof to account as if it and they were the trustees of an express trust.

History

(1951, c. 1095, s. 14; 1973, c. 426, s. 75.)

§ 160A-518. Right of obligee.

An obligee of the commission shall have the right in addition to all other rights which may be conferred on such obligee, subject only to any contractual restrictions binding upon such obligee:

  1. By mandamus, suit, action or proceeding at law or in equity to compel said commission and the commissioners, officers, agents or employees thereof to perform each and every term, provision and covenant contained in any contract of said commission with or for the benefit of such obligee, and to require the carrying out of any or all such covenants and agreements of said commission and the fulfillment of all duties imposed upon said commission by this Article; and
  2. By suit, action or proceeding in equity, to enjoin any acts or things which may be unlawful, or the violation of any of the rights of such obligee of said commission.

History

(1951, c. 1095, s. 15; 1973, c. 426, s. 75.)

§ 160A-519. Cooperation by public bodies.

  1. For the purpose of aiding and cooperating in the planning, undertaking or carrying out of a redevelopment project located within the area in which it is authorized to act, any public body may, upon such terms, with or without consideration, as it may determine:
    1. Dedicate, sell, convey or lease any of its interest in any property, or grant easements, licenses or any other rights or privileges therein to a commission;
    2. Cause parks, playgrounds, recreational, community, educational, water, sewer or drainage facilities, or any other works which it is otherwise empowered to undertake, to be furnished in connection with a redevelopment project;
    3. Furnish, dedicate, close, vacate, pave, install, grade, regrade, plan or replan streets, roads, sidewalks, ways or other places, which it is otherwise empowered to undertake;
    4. Plan or replan, zone or rezone any part of the redevelopment;
    5. Cause administrative and other services to be furnished to the commission of the character which the public body is otherwise empowered to undertake or furnish for the same or other purposes;
    6. Incur the entire expense of any public improvements made by such public body in exercising the powers granted in this section;
    7. Do any and all things necessary or convenient to aid and cooperate in the planning or carrying out of a redevelopment plan.
  2. Any sale, conveyance, or agreement provided for in this section may be made by a public body without public notice, advertisement or public bidding.

History

(1951, c. 1095, s. 16; 1973, c. 426, s. 75.)

§ 160A-520. Grant of funds by community.

Any municipality located within the area of operation of a commission may appropriate funds to a commission for the purpose of aiding such commission in carrying out any of its powers and functions under this Article. To obtain funds for this purpose, the municipality may levy taxes and may in the manner prescribed by law issue and sell its bonds.

History

(1951, c. 1095, s. 17; 1973, c. 426, s. 75.)

CASE NOTES

Constitutionality. - This section is not unconstitutional. Horton v. Redevelopment Comm'n, 262 N.C. 306, 137 S.E.2d 115 (1964).

Any provisions of this section to the effect that any municipality located within the area of a redevelopment commission may appropriate funds to a redevelopment commission for the purpose of aiding such a commission in carrying out any of its powers and functions under the Urban Redevelopment Law, and to obtain funds for this purpose may levy taxes, and may in the manner prescribed by law issue and sell its bonds, without approval of a vote of the qualified voters in the municipality, would be repugnant to the provisions of former Art. VII, § 6, Const. 1868, as amended in 1962. Horton v. Redevelopment Comm'n, 259 N.C. 605, 131 S.E.2d 464 (1963). (See now N.C. Const., Art. V, § 2.)

For What Purposes Tax May Be Levied. - Under this section, a municipality cannot legally levy a tax in connection with an urban redevelopment project for any purpose other than for streets, water, sewer and other such services as would constitute necessary expenses of the municipality, irrespective of whether or not a redevelopment project existed. Horton v. Redevelopment Comm'n, 262 N.C. 306, 137 S.E.2d 115 (1964).

For What Purposes Bonds May Be Issued Without Election. - A municipality cannot issue and sell its bonds except in the manner prescribed by law, and the law requires that bonds issued to finance a project which is for a public purpose but not a necessary expense must be approved by the voters of the municipality if such bonds are obligations of the municipality. Horton v. Redevelopment Comm'n, 262 N.C. 306, 137 S.E.2d 115 (1964).

Opinions of Attorney General

City May Appropriate Nontax Funds to Redevelopment Commission. - See opinion of Attorney General to Mr. Francis M. Coiner, Hendersonville City Attorney, 40 N.C.A.G. 506 (1970).

§ 160A-521. Records and reports.

  1. The books and records of a commission shall at all times be open and subject to inspection by the public.
  2. A copy of all bylaws and rules and regulations and amendments thereto adopted by it, from time to time, shall be filed with the city clerk and shall be open for public inspection.
  3. At least once each year a report of its activities for the preceding year and such other reports as may be required shall be made. Copies of such reports shall be filed with the mayor and governing body of the municipality.

History

(1951, c. 1095, s. 18; 1973, c. 426, s. 75.)

§ 160A-522. Title of purchaser.

Any instrument executed by a commission and purporting to convey any right, title or interest in any property under this Article shall be conclusive evidence of compliance with the provisions of this Article insofar as title or other interest of any bona fide purchasers, lessees or transferees of such property is concerned.

History

(1951, c. 1095, s. 19; 1973, c. 426, s. 75.)

CASE NOTES

This section is not available to revive an instrument that was void from its inception. Campbell v. First Baptist Church, 39 N.C. App. 117, 250 S.E.2d 68 (1978), aff'd, 298 N.C. 476, 259 S.E.2d 558 (1979).


§ 160A-523. Preparation of general plan by local governing body.

The governing body of any municipality or county, which is not otherwise authorized to create a planning commission with power to prepare a general plan for the development of the community, is hereby authorized and empowered to prepare such a general plan prior to the initiation and carrying out of a redevelopment project under this Article.

History

(1951, c. 1095, s. 20; 1973, c. 426, s. 75.)

§ 160A-524. Inconsistent provisions.

Insofar as the provisions of this Article are inconsistent with the provisions of any other law, the provisions of this Article shall be controlling.

History

(1951, c. 1095, s. 22; 1955, c. 1349; 1957, c. 502, s. 4; 1973, c. 426, s. 75.)

§ 160A-525. Certain actions and proceedings validated.

All proceedings, resolutions, ordinances, motions, notices, findings, determinations, and other actions of redevelopment commissions, incorporated cities and towns, governing bodies, and planning boards and commissions, had and taken prior to January 1, 1965, pursuant to or purporting to comply with the Urban Redevelopment Law (G.S. 160A-500 to 160A-526) and incident to the creation and organization of redevelopment commissions and appointment of members thereof, designation of redevelopment and project areas, findings and determinations respecting conditions in redevelopment and project areas, preparation, development, review, processing and approval of urban redevelopment projects and plans, including redevelopment plans, calling and holding of public hearings, and the time and manner of giving and publishing notices thereof, are hereby in all respects legalized, ratified, approved, validated and confirmed, and all such actions are declared to be valid and lawfully authorized; provided, however, that no such action shall be legalized, ratified, approved, validated or confirmed, under this section if they appertain to any redevelopment or project area, the acquisition or taking of any property in any such area, any urban redevelopment project or any redevelopment plan respecting which any decree or judgment has been rendered by the Supreme Court of North Carolina prior to May 25, 1965.

History

(1963, c. 194; 1965, c. 680; 1973, c. 426, s. 75.)

§ 160A-526. Contracts and agreements validated.

All contracts or agreements of redevelopment commissions heretofore entered into with the federal government or its agencies, and with municipalities or others relating to financial assistance for redevelopment projects in which it was required that loans or advances shall bear an interest rate in excess of six per centum (6%) per annum, or in which a municipality or others had agreed to pay funds equal to the interest in excess of six per centum (6%) per annum are hereby validated, ratified, confirmed, approved and declared legal with respect to the payment of interest in excess of six per centum (6%), and all things done or performed in reference thereto. The redevelopment commissions are hereby authorized to assume the full obligation of the municipalities under the contracts or agreements with reference to interest in excess of six per centum (6%), and to reimburse any municipality which has made any interest payment under such contracts or agreements.

History

(1971, c. 87, s. 4; 1973, c. 426, s. 75.)

§§ 160A-527 through 160A-534: Reserved for future codification purposes.

ARTICLE 23. Municipal Service Districts.

Sec.

§ 160A-535. Title; effective date.

This Article may be cited as "The Municipal Service District Act of 1973," and is enacted pursuant to Article V, Sec. 2(4) of the Constitution of North Carolina, effective July 1, 1973.

History

(1973, c. 655, s. 1.)

§ 160A-536. Purposes for which districts may be established.

  1. Purposes. - The city council of any city may define any number of service districts in order to finance, provide, or maintain for the districts one or more of the following services, facilities, or functions in addition to or to a greater extent than those financed, provided or maintained for the entire city:
    1. Beach erosion control and flood and hurricane protection works.
    2. (For applicability see note) Any service, facility, or function which the municipality may by law provide in the city, and including but not limited to placement of utility wiring underground, placement of period street lighting, placement of specially designed street signs and street furniture, landscaping, specialized street and sidewalk paving, and other appropriate improvements to the rights-of-way that generally preserve the character of an historic district; provided that this subdivision only applies to a service district which, at the time of its creation, had the same boundaries as an historic district created under Part 3A of Article 19 of this Chapter.
    3. Downtown revitalization projects.
    4. Urban area revitalization projects.
    5. Transit-oriented development projects.
    6. Drainage projects.
    7. Sewage collection and disposal systems of all types, including septic tank systems or other on-site collection or disposal facilities or systems.
    8. (For applicability see note) Lighting at interstate highway interchange ramps.
    9. Off-street parking facilities.
    10. Watershed improvement projects, including but not limited to watershed improvement projects as defined in General Statutes Chapter 139; drainage projects, including but not limited to the drainage projects provided for by General Statutes Chapter 156; and water resources development projects, including but not limited to the federal water resources development projects provided for by General Statutes Chapter 143, Article 21.
    11. Conversion of private residential streets to public streets as provided in subsection (e) of this section.
  2. Downtown Revitalization Defined. - As used in this section "downtown revitalization projects" are improvements, services, functions, promotions, and developmental activities intended to further the public health, safety, welfare, convenience, and economic well-being of the central city or downtown area. Exercise of the authority granted by this Article to undertake downtown revitalization projects financed by a service district do not prejudice a city's authority to undertake urban renewal projects in the same area. Examples of downtown revitalization projects include by way of illustration but not limitation all of the following:
    1. Improvements to water mains, sanitary sewer mains, storm sewer mains, electric power distribution lines, gas mains, street lighting, streets and sidewalks, including rights-of-way and easements.
    2. Construction of pedestrian malls, bicycle paths, overhead pedestrian walkways, sidewalk canopies, and parking facilities both on-street and off-street.
    3. Construction of public buildings, restrooms, docks, visitor centers, and tourism facilities.
    4. Improvements to relieve traffic congestion in the central city and improve pedestrian and vehicular access to it.
    5. Improvements to reduce the incidence of crime in the central city.
    6. Providing city services or functions in addition to or to a greater extent than those provided or maintained for the entire city.
    7. Sponsoring festivals and markets in the downtown area, promoting business investment in the downtown area, helping to coordinate public and private actions in the downtown area, and developing and issuing publications on the downtown area.
  3. Urban Area Revitalization Defined. - As used in this section, the term "urban area revitalization projects" includes the provision within an urban area of any service or facility that may be provided in a downtown area as a downtown revitalization project under subdivision (a)(2) and subsection (b) of this section. As used in this section, the term "urban area" means an area that (i) is located within a city and (ii) meets one or more of the following conditions:
    1. It is the central business district of the city.
    2. It consists primarily of existing or redeveloping concentrations of industrial, retail, wholesale, office, or significant employment-generating uses, or any combination of these uses.
    3. It is located in or along a major transportation corridor and does not include any residential parcels that are not, at their closest point, within 150 feet of the major transportation corridor right-of-way or any nonresidentially zoned parcels that are not, at their closest point, within 1,500 feet of the major transportation corridor right-of-way.
    4. It has as its center and focus a major concentration of public or institutional uses, such as airports, seaports, colleges or universities, hospitals and health care facilities, or governmental facilities.
  4. Transit-Oriented Development Defined. - As used in this section, the term "transit-oriented development" includes the provision within a public transit area of any service or facility listed in this subsection. A public transit area is an area within a one-fourth mile radius of any passenger stop or station located on a mass transit line. A mass transit line is a rail line along which a public transportation service operates or a busway or guideway dedicated to public transportation service. A busway is not a mass transit line if a majority of its length is also generally open to passenger cars and other private vehicles more than two days a week.
    1. Any service or facility that may be provided in a downtown area as a downtown revitalization project under subdivision (a)(2) and subsection (b) of this section.
    2. Passenger stops and stations on a mass transit line.
    3. Parking facilities and structures associated with passenger stops and stations on a mass transit line.
    4. Any other service or facility, whether public or public-private, that the city may by law provide or participate in within the city, including retail, residential, and commercial facilities.
  5. Contracts. - A city may provide services, facilities, functions, or promotional and developmental activities in a service district with its own forces, through a contract with another governmental agency, through a contract with a private agency, or by any combination thereof. Any contracts entered into pursuant to this subsection shall comply with all of the following criteria:
    1. The contract shall specify the purposes for which city moneys are to be used for that service district.
    2. The contract shall require an appropriate accounting for those moneys at the end of each fiscal year or other appropriate period. For contracts entered into on or after June 1, 2016, the appropriate accounting shall include the name, location, purpose, and amount paid to any person or persons with whom the private agency contracted to perform or complete any purpose for which the city moneys were used for that service district.
  6. Additional Requirements for Certain Contracts. - In addition to the requirements of subsection (d) of this section, if the city enters into a contract with a private agency for a service district under subdivision (a)(1a), (2), or (2a) of this section, the city shall comply with all of the following:
    1. The city shall solicit input from the residents and property owners as to the needs of the service district prior to entering into the contract.
    2. Prior to entering into, or the renewal of, any contract under this section, the city shall use a bid process to determine which private agency is best suited to achieve the needs of the service district. The city shall determine criteria for selection of the private agency and shall select a private agency in accordance with those criteria. If the city determines that a multiyear contract with a private agency is in the best interest of the city and the service district, the city may enter into a multiyear contract not to exceed five years in length.
    3. The city shall hold a public hearing prior to entering into the contract, which shall be noticed by publication in a newspaper of general circulation, for at least two successive weeks prior to the public hearing, in the service district.
    4. The city shall require the private agency to report annually to the city, by presentation in a city council meeting and in written report, regarding the needs of the service district, completed projects, and pending projects. Prior to the annual report, the private agency shall seek input of the property owners and residents of the service district regarding needs for the upcoming year.
    5. The contract shall specify the scope of services to be provided by the private agency. Any changes to the scope of services shall be approved by the city council.
  7. Converting Private Residential Streets to Public Streets. - A city may establish a municipal service district for the purpose of converting private residential streets to public streets if the conditions of this subsection are met. The property tax levied in a municipal service district created for this purpose may be used only to pay the costs related to the transfer of ownership of the streets, evaluation of the condition of the private streets, and the design and construction costs related to improving the private streets to meet public street standards as approved by the governing board. Notwithstanding G.S. 160A-542, the property tax rate in a district created for this purpose may not be in excess of thirty percent (30%) of the ad valorem tax rate in effect in the city in the fiscal year prior to the establishment of the district. After the private streets have been upgraded to meet public street standards and all costs have been recovered from the tax in the district, no further tax may be levied in the district, and the city council must abolish the municipal service district as provided by G.S. 160A-541.
    1. The private residential road must be nongated.
    2. The city must receive a petition signed by at least sixty percent (60%) of the lot owners of the owners' association requesting the city to establish a municipal service district for the purpose of paying the costs related to converting private residential streets to public streets. The executive board of an owners' association for which the city has received a petition under this subsection may transfer street-related common elements to the city, notwithstanding the provisions of either the North Carolina Planned Community Act in Chapter 47F of the General Statutes or the North Carolina Condominium Act in Chapter 47C of the General Statutes, or related articles of declaration, deed covenants, or any other similar document recorded with the Register of Deeds.
    3. The city must agree to accept the converted streets for perpetual public maintenance.
    4. The city must meet one of the following requirements:
      1. Located primarily in a county that has a population of 750,000 or more according to the most recent decennial federal census, and also located in an adjacent county with a population of 250,000 or more according to the most recent decennial federal census.
      2. Located primarily in a county with a population of 250,000 or more according to the most recent decennial federal census, and also located in an adjacent county with a population of 750,000 or more according to the most recent decennial federal census.

The following services and facilities are included in the definition of "transit-oriented development" if they are provided within a transit area:

Notwithstanding G.S. 160A-299, if a city abandons the streets and associated rights-of-way acquired pursuant to this subsection, the street-related common elements must be returned to the owners' association from which the city acquired them in a manner that makes the owners' association's holdings in common elements as they were prior to the establishment of the municipal service district.

For a city to create a municipal service district for the purpose of converting private residential streets to public streets, all of the following conditions must be met:

History

(1973, c. 655, s. 1; 1977, c. 775, ss. 1, 2; 1979, c. 595, s. 2; 1985, c. 580; 1987, c. 621, s. 1; 1999-224, s. 1; 1999-388, s. 1; 2004-151, s. 1; 2004-203, s. 5(m); 2009-385, s. 1; 2011-72, ss. 1, 2; 2011-322, s. 1; 2012-79, s. 1.11; 2015-241, s. 15.16B(a); 2016-8, s. 1; 2017-102, s. 31.1.)

Cross References. - As to property taxes to provide for drainage projects or program, see G.S. 160A-209.

Editor's Note. - Subsection (b) as amended by Session Laws 2011-322, s. 1, had two subdivisions designated (b)(6). The second one was redesignated (b)(7) at the direction of the Revisor of Statutes.

Session Laws 1977, c. 775, which added the present second and third sentences of the second paragraph (now subsection (b)) and added the third paragraph (now subsection (d)), provided in s. 5: "This act shall become effective upon ratification, but shall not apply to any district established prior to January 1, 1975."

Session Laws 1987, c. 621, which added subdivision (1a) (now subdivision (a)(1a)) of this section, in s. 4 provided: "This act shall apply only to those cities having a population in excess of 150,000 which are located in counties having two or more cities each of which has a population in excess of 60,000. This act shall also apply to those cities where, at the time of creation of the district, the city had a population of not less than 20,000 nor more than 25,000, was not a county seat, and was located in two counties one of which had eight incorporated municipalities. This act shall also apply to those cities where, at the time of creation of the district, the city is located in a county with a population of more than 100,000, which county has an area of less than 250 square miles."

Session Laws 1999-224, which added subdivision (3b) (now subdivision (a)(3b)) of this section, in s. 2 provided that this act applies only to towns that, at the time the district is created, have a population of between 2,000 and 2,500 and are located in a county that has a land area of more than 946 square miles according to the 1990 federal census.

Session Laws 2015-241, s. 15.16B(c), provides: "The Legislative Research Commission shall study the feasibility of authorizing property owners within a municipal service district to petition for removal from that municipal service district. The Legislative Research Commission may consider any issues relevant to this study. The Legislative Research Commission shall report its findings and recommendations, including any proposed legislation, to the 2016 Regular Session of the 2015 General Assembly."

Session Laws 2015-241, s. 15.16B(d), made the amendment to subsection (d) and addition of subsection (d1) by Session Laws 2015-241, s. 15.16B(a), applicable to contracts entered into on or after October 1, 2015.

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium."

Session Laws 2015-241, s. 33.6, is a severability clause.

Session Laws 2016-8, s. 7, made the amendment to subsection (d) of this section by Session Laws 2016-8, s. 1, applicable only to contracts entered into on or after June 1, 2016.

Effect of Amendments. - Session Laws 2004-151, s. 1, effective August 2, 2004, inserted subdivision (a)(2b); deleted "municipal" preceding "service district" in the last sentence of subsection (b); and added subsection (c1).

Session Laws 2004-203, s. 5(m), effective August 17, 2004, substituted "Budget Officer" for "Planning Officer" in subsection (c).

Session Laws 2009-385, s. 1, effective July 31, 2009, deleted "whose population exceeds 150,000 according to the most recent annual population statistics certified by the State Budget Officer" following "within a city" near the end of the introductory language of subsection (c).

Session Laws 2011-72, ss. 1 and 2, effective May 12, 2011, added subdivision (a)(6) and subsection (e).

Session Laws 2011-322, s. 1, effective June 27, 2010, rewrote subsection (b).

Session Laws 2012-79, s. 1.11, effective June 26, 2012, in the second sentence of subdivision (e)(2), substituted "either the North Carolina Planned Community Act in Chapter 47F of the General Statutes or the North Carolina Condominium Act in Chapter 47C of the General Statutes, or" for "the North CArolina Planned Community Act in Chapter 47F of the General Statutes."

Session Laws 2015-241, s. 15.16B(a), effective October 1, 2015, rewrote the former second sentence of subsection (d), inserting the (1) and (2) designations; and added subsection (d1). For applicability, see editor's note.

Session Laws 2016-8, s. 1, effective June 1, 2016, in subdivision (d)(2), added "The appropriate accounting shall include the name, location, purpose, and amount paid to any person or persons with whom the private agency contracted to perform or complete any purpose for which the city moneys were used for that service district." See editor's note for applicability.

Session Laws 2017-102, s. 31.1, effective July 12, 2017, added "For contracts entered into on or after June 1, 2016," at the beginning of the second sentence in subdivision (d)(2); and added "Additional Requirements for Certain Contracts. - ", at the beginning of subsection (d1).

CASE NOTES

Governmental Immunity. - City was entitled to governmental immunity in a negligence action arising from a trip and fall at a building the city leased to an arts organization because the lease was a governmental function, as (1) the legislature provided urban redevelopment activities undertaken to promote the health, safety, and welfare of North Carolina citizens were governmental functions, (2) the legislature determined private enterprise alone could not address urban blight, (3) the lease was a valid urban redevelopment and downtown revitalization activity, (4) the city did not seek to make a profit from the lease, and (5) the fees the city charged under the lease were not substantial and did not cover the city's operating costs. Meinck v. City of Gastonia, 371 N.C. 497, 819 S.E.2d 353 (2018).


§ 160A-537. Definition of service districts.

  1. Standards. - The city council of any city may by ordinance define a service district upon finding that a proposed district is in need of one or more of the services, facilities, or functions listed in G.S. 160A-536 to a demonstrably greater extent than the remainder of the city.
  2. Petition to Define District. - The city council may also by ordinance define a service district if a petition submitted by a majority of the owners of real property in a defined area of the city establishes that the area is in need of one or more of the services, facilities, or functions listed in G.S. 160A-536 to a demonstrably greater extent than the remainder of the city. The petition shall contain the names, addresses, and signatures of the real property owners within the proposed district, describe the proposed district boundaries, and state in detail the services, facilities, or functions listed in G.S. 160A-536 which would serve as the basis for establishing the proposed district. The city council may establish a policy to hear all petitions submitted under this subsection at regular intervals, but no less than once per year.
  3. Report. - Before the public hearing required by subsection (c), the city council shall cause to be prepared a report containing:
    1. A map of the proposed district, showing its proposed boundaries;
    2. A statement showing that the proposed district meets the standards set out in subsection (a); and
    3. A plan for providing in the district one or more of the services listed in G.S. 160A-536.
  4. Hearing and Notice. - The city council shall hold a public hearing before adopting any ordinance defining a new service district under this section. Notice of the hearing shall state the date, hour, and place of the hearing and its subject, and shall include a map of the proposed district and a statement that the report required by subsection (b) is available for public inspection in the office of the city clerk. The notice shall be published at least once not less than one week before the date of the hearing. In addition, it shall be mailed at least four weeks before the date of the hearing by any class of U.S. mail which is fully prepaid to the owners as shown by the county tax records as of the preceding January 1 (and at the address shown thereon) of all property located within the proposed district. The person designated by the council to mail the notice shall certify to the council that the mailing has been completed and his certificate is conclusive in the absence of fraud.
  5. Exclusion From District. - An owner of a tract or parcel of land located within the proposed district may, at the public hearing or no later than five days after the date of the public hearing required by subsection (c) of this section, submit a written request to the city council for the exclusion of the tract or parcel from the proposed district. The owner shall specify the tract or parcel, state with particularity the reasons why the tract or parcel is not in need of the services, facilities, or functions of the proposed district to a demonstrably greater extent than the remainder of the city, and provide any other additional information the owner deems relevant. If the city council finds that the tract or parcel is not in need of the services, facilities, or functions of the proposed district to a demonstrably greater extent than the remainder of the city, the city council may exclude the tract or parcel from the proposed district.
  6. Effective Date. - Except as otherwise provided in this subsection, the ordinance defining a service district shall take effect at the beginning of a fiscal year commencing after its passage, as determined by the city council. If the governing body in the ordinance states that general obligation bonds or special obligation bonds are anticipated to be authorized for the project, it may make the ordinance effective immediately upon its adoption or as otherwise provided in the ordinance. However, no ad valorem tax may be levied for a partial fiscal year.
  7. Repealed by Session Laws 2016-8, s. 2, effective June 1, 2016.
  8. Passage of Ordinance. - No ordinance defining a service district as provided for in this section shall be finally adopted until it has been passed at two meetings of the city council by majority vote of the voting members present, and no service district shall be defined except by ordinance.

The report shall be available for public inspection in the office of the city clerk for at least four weeks before the date of the public hearing.

History

(1973, c. 655, s. 1; 1981, c. 53, s. 1; c. 733, s. 1; 2006-162, s. 25; 2012-156, s. 4; 2016-8, s. 2.)

Editor's Note. - The bracketed reference to "[G.S. 160A-536(a)]" in subsection (e) has been added at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2006-162, s. 25, effective July 24, 2006, added the exception at the the end of subsection (d).

Session Laws 2012-156, s. 4, effective July 12, 2012, in subsection (d), added the exception at the beginning of the first sentence, and substituted "council. If" for "council, except that if"; in the second sentence, inserted "or special obligation bonds" near the beginning, and substituted "adoption or as otherwise provided in the resolution" for "adoption, but" at the end; added "However" at the beginning of the third sentence; and made minor punctuation and stylistic changes.

Session Laws 2016-8, s. 2, effective June 1, 2016, in subsections (a), (c), and (d), substituted "ordinance" for "resolution"; added subsections (a1), (c1), and (f); and repealed subsection (e).

§ 160A-538. Extension of service districts.

  1. Standards. - The city council may by ordinance annex territory to any service district upon finding that:
    1. The area to be annexed is contiguous to the district, with at least one eighth of the area's aggregate external boundary coincident with the existing boundary of the district;
    2. That the area to be annexed requires the services of the district.
  2. Annexation by Petition. - The city council may also by ordinance extend by annexation the boundaries of any service district when one hundred percent (100%) of the real property owners of the area to be annexed have petitioned the council for annexation to the service district.
  3. Report. - Before the public hearing required by subsection (d), the council shall cause to be prepared a report containing:
    1. A map of the service district and the adjacent territory, showing the present and proposed boundaries of the district;
    2. A statement showing that the area to be annexed meets the standards and requirements of subsections (a) or (b); and
    3. A plan for extending services to the area to be annexed.
  4. Hearing and Notice. - The council shall hold a public hearing before adopting any ordinance extending the boundaries of a service district. Notice of the hearing shall state the date, hour and place of the hearing and its subject, and shall include a statement that the report required by subsection (c) is available for inspection in the office of the city clerk. The notice shall be published at least once not less than one week before the date of the hearing. In addition, the notice shall be mailed at least four weeks before the date of the hearing to the owners as shown by the county tax records as of the preceding January 1 of all property located within the area to be annexed. The notice may be mailed by any class of U.S. mail which is fully prepaid. The person designated by the council to mail the notice shall certify to the council that the mailing has been completed, and his certificate shall be conclusive in the absence of fraud.
  5. Effective Date. - The ordinance extending the boundaries of the district shall take effect at the beginning of a fiscal year commencing after its passage, as determined by the council.
  6. Passage of Ordinance. - No ordinance annexing territory to a service district as provided for in this section shall be finally adopted until it has been passed at two meetings of the city council by majority vote of the voting members present, and no territory shall be annexed to a service district except by ordinance.
  7. Historic District Boundaries Extension. - A service district which at the time of its creation had the same boundaries as an historic district created under Part 3A of Article 19 of this Chapter may only have its boundaries extended to include territory which has been added to the historic district.

The report shall be available for public inspection in the office of the city clerk for at least two weeks before the date of the public hearing.

History

(1973, c. 655, s. 1; 1981, c. 53, s. 2; 1987, c. 621, s. 2; 2016-8, s. 3.)

Editor's Note. - Session Laws 1987, c. 621, which added subsection (f) of this section, in s. 4 provided: "This act shall apply only to those cities having a population in excess of 150,000 which are located in counties having two or more cities each of which has a population in excess of 60,000. This act shall also apply to those cities where, at the time of creation of the district, the city had a population of not less than 20,000 nor more than 25,000, was not a county seat, and was located in two counties one of which had eight incorporated municipalities. This act shall also apply to those cities where, at the time of creation of the district, the city is located in a county with a population of more than 100,000, which county has an area of less than 250 square miles."

Effect of Amendments. - Session Laws 2016-8, s. 3, effective June 1, 2016, in subsection (a), (b), (d), (e), substituted "ordinance" for "resolution"; added subsection (e1); and added "Historic District Boundaries Extension" to the beginning of subsection (f).

§ 160A-538.1. Reduction of service districts.

  1. Reduction by City Council. - Upon finding that there is no longer a need to include within a particular service district any certain tract or parcel of land, the city council may by ordinance redefine a service district by removing therefrom any tract or parcel of land which it has determined need no longer be included in said district. The city council shall hold a public hearing before adopting an ordinance removing any tract or parcel of land from a district. Notice of the hearing shall state the date, hour and place of the hearing, and its subject, and shall be published at least once not less than one week before the date of the hearing.
  2. Request for Reduction by Owner. - A property owner may submit a written request to the city council to remove the owner's tract or parcel of land from a service district. The owner shall specify the tract or parcel, state with particularity the reasons why the tract or parcel is not in need of the services, facilities, or functions of the proposed district to a demonstrably greater extent than the remainder of the city, and provide any other additional information the owner deems relevant. Upon receipt of the request, the city council shall hold a public hearing as required by subsection (a) of this section. If the city council finds that the tract or parcel is not in need of the services, facilities, or functions of the district to a demonstrably greater extent than the remainder of the city, the city council may, by ordinance, redefine the service district by removing therefrom the tract or parcel.
  3. Effective Date. - The removal of any tract or parcel of land from any service district shall take effect at the end of a fiscal year following passage of the ordinance, as determined by the city council.
  4. Passage of Ordinance. - No ordinance reducing a service district as provided for in this section shall be finally adopted until it has been passed at two meetings of the city council by majority vote of the voting members present, and no service district shall be reduced except by ordinance.
  5. Historic District Boundaries Reduction. - A service district which at the time of its creation had the same boundaries as an historic district created under Part 3A of Article 19 of this Chapter may only have its boundaries reduced to exclude territory which has been removed from the historic district.

History

(1977, c. 775, s. 3; 1987, c. 621, s. 3; 2016-8, s. 4.)

Editor's Note. - Session Laws 1977, c. 775, which enacted this section, in s. 5, provided that the act would not apply to any district established prior to January 1, 1975.

Session Laws 1987, c. 621, which added subsection (c) of this section, in s. 4 provided: "This act shall apply only to those cities having a population in excess of 150,000 which are located in counties having two or more cities each of which has a population in excess of 60,000. This act shall also apply to those cities where, at the time of creation of the district, the city had a population of not less than 20,000 nor more than 25,000, was not a county seat, and was located in two counties one of which had eight incorporated municipalities. This act shall also apply to those cities where, at the time of creation of the district, the city is located in a county with a population of more than 100,000, which county has an area of less than 250 square miles."

Effect of Amendments. - Session Laws 2016-8, s. 4, effective June 1, 2016, in subsection (a), added "reduction by City Council" to the beginning of the subsection; and substituted "ordinance" for "resolution"; in subsection (b), added "Effective Date" to the beginning of the subsection; and substituted "ordinance" for "resolution"; in subsection (c), added "Historic District Boundaries Reduction" to the beginning of the subsection; and added subsections (a1) and (b1).

§ 160A-539. Consolidation of service districts.

  1. The city council may by ordinance consolidate two or more service districts upon finding that:
    1. The districts are contiguous or are in a continuous boundary; and
    2. The services provided in each of the districts are substantially the same; or
    3. If the services provided are lower for one of the districts, there is a need to increase those services for that district to the level of that enjoyed by the other districts.
  2. Report. - Before the public hearing required by subsection (c), the city council shall cause to be prepared a report containing:
    1. A map of the districts to be consolidated;
    2. A statement showing the proposed consolidation meets the standards of subsection (a); and
    3. If necessary, a plan for increasing the services for one or more of the districts so that they are substantially the same throughout the consolidated district.
  3. Hearing and Notice. - The city council shall hold a public hearing before adopting any ordinance consolidating service districts. Notice of the hearing shall state the date, hour, and place of the hearing and its subject, and shall include a statement that the report required by subsection (b) is available for inspection in the office of the city clerk. The notice shall be published at least once not less than one week before the date of the hearing. In addition, the notice shall be mailed at least four weeks before the hearing to the owners as shown by the county tax records as of the preceding January 1 of all property located within the consolidated district. The notice may be mailed by any class of U.S. mail which is fully prepaid. The person designated by the council to mail the notice shall certify to the council that the mailing has been completed, and his certificate shall be conclusive in the absence of fraud.
  4. Effective Date. - The consolidation of service districts shall take effect at the beginning of a fiscal year commencing after passage of the ordinance of consolidation, as determined by the council.
  5. Passage of Ordinance. - No ordinance consolidating two or more service districts as provided for in subsection (a) of this section shall be finally adopted until it has been passed at two meetings of the city council by majority vote of the voting members present, and no service districts shall be consolidated except by ordinance.

The report shall be available in the office of the city clerk for at least two weeks before the public hearing.

History

(1973, c. 655, s. 1; 1981, c. 53, s. 2; 2016-8, s. 5.)

Effect of Amendments. - Session Laws 2016-8, s. 5, effective June 1, 2016, in subsections (a), (c), and (d), substituted "ordinance" for "resolution"; and added subsection (e).

§ 160A-540. Required provision or maintenance of services.

  1. New District. - When a city defines a new service district, it shall provide, maintain, or let contracts for the services for which the residents of the district are being taxed within a reasonable time, not to exceed one year, after the effective date of the definition of the district.
  2. Extended District. - When a city annexes territory for a service district, it shall provide, maintain, or let contracts for the services provided or maintained throughout the district to the residents of the area annexed to the district within a reasonable time, not to exceed one year, after the effective date of the annexation.
  3. Consolidated District. - When a city consolidates two or more service districts, one of which has had provided or maintained a lower level of services, it shall increase the services within that district (or let contracts therefor) to a level comparable to those provided or maintained elsewhere in the consolidated district within a reasonable time, not to exceed one year, after the effective date of the consolidation.

History

(1973, c. 655, s. 1.)

§ 160A-541. Abolition of service districts.

Upon finding that there is no longer a need for a particular service district, the city council may by ordinance abolish that district. The council shall hold a public hearing before adopting an ordinance abolishing a district. Notice of the hearing shall state the date, hour and place of the hearing, and its subject, and shall be published at least once not less than one week before the date of the hearing. The abolition of any service district shall take effect at the end of a fiscal year following passage of the ordinance, as determined by the council.

History

(1973, c. 655, s. 1; 2016-8, s. 6.)

Effect of Amendments. - Session Laws 2016-8, s. 6, effective June 1, 2016, substituted "ordinance" for "resolution."

§ 160A-542. Taxes authorized; rate limitation.

  1. A city may levy property taxes within defined service districts in addition to those levied throughout the city, in order to finance, provide or maintain for the district services provided therein in addition to or to a greater extent than those financed, provided or maintained for the entire city. In addition, a city may allocate to a service district any other revenues whose use is not otherwise restricted by law.
  2. Property subject to taxation in a newly established district or in an area annexed to an existing district is that subject to taxation by the city as of the preceding January 1.
  3. Property taxes may not be levied within any district established pursuant to this Article in excess of a rate on each one hundred dollar ($100.00) value of property subject to taxation which, when added to the rate levied city wide for purposes subject to the rate limitation, would exceed the rate limitation established in G.S. 160A-209(d), unless that portion of the rate in excess of this limitation is submitted to and approved by a majority of the qualified voters residing within the district. Any referendum held pursuant to this subsection shall be held and conducted as provided in G.S. 160A-209.
  4. In setting the tax rate, the city council shall consider the current needs, as well as the long-range plans and goals for the service district. The city council shall set the tax rate so that there is no accumulation of excess funds beyond that necessary to meet current needs, fund long-range plans and goals, and maintain a reasonable fund balance. Moneys collected shall be used only for meeting the needs of the service district, as those needs are determined by the city council.
  5. This Article does not impair the authority of a city to levy special assessments pursuant to Article 10 of this Chapter for works authorized by G.S. 160A-491, and may be used in addition to that authority.

History

(1973, c. 655, s. 1; 2015-241, s. 15.16B(b).)

Editor's Note. - Session Laws 2015-241, s. 15.16B(c), provides: "The Legislative Research Commission shall study the feasibility of authorizing property owners within a municipal service district to petition for removal from that municipal service district. The Legislative Research Commission may consider any issues relevant to this study. The Legislative Research Commission shall report its findings and recommendations, including any proposed legislation, to the 2016 Regular Session of the 2015 General Assembly."

Session Laws 2015-241, s. 15.16B(d), made the amendment to this section by Session Laws 2015-241, s. 15.16B(b), effective for taxes imposed for taxable years beginning on or after January 1, 2016.

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium."

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2015-241, s. 15.16B(b), added designations (a), (b), (c), and (e); substituted "subsection" for "paragraph" in the last sentence of subsection (c); and inserted subsection (d). For effective date and applicability, see editor's note.

§ 160A-543. Bonds authorized.

A city may incur debt under general law to finance services, facilities or functions provided within a service district. If a proposed general obligation bond issue is required by law to be submitted to and approved by the voters of the city, and if the proceeds of the proposed bond issue are to be used in connection with a service that is or, if the bond issue is approved, will be provided only for one or more service districts or at a higher level in service districts than city wide, the proposed bond issue must be approved concurrently by a majority of those voting throughout the entire city and by a majority of the total of those voting in all of the affected or to be affected service districts.

History

(1973, c. 655, s. 1; 2004-151, s. 4.)

Effect of Amendments. - Session Laws 2004-151, s. 4, effective August 2, 2004, substituted "incur debt under general law" for "issue its general obligation bonds under the Local Government Bond Act" in the first sentence, and inserted "general obligation" preceding "bond issue" in the second sentence.

§ 160A-544. Exclusion of personal property of public service corporations.

There shall be excluded from any service district and the provisions of this Article shall not apply to the personal property of any public service corporation as defined in G.S. 160A-243(c); provided that this section shall not apply to any service district in existence on January 1, 1977.

History

(1977, c. 775, s. 4.)

Editor's Note. - Session Laws 1977, c. 775, which enacted this section, provided in s. 5 that the act would not apply to any district established prior to January 1, 1975.

Section 160A-243, referred to in this section, was repealed by Session Laws 1981, c. 919.

§§ 160A-545 through 160A-549: Reserved for future codification purposes.

ARTICLE 24. Parking Authorities.

Sec.

§ 160A-550. Short title.

This Article may be cited as the "Parking Authority Law."

History

(1951, c. 779, s. 1; 1979, 2nd Sess., c. 1247, s. 44.)

Editor's Note. - This Article was formerly Article 38 of Chapter 160. It was transferred and renumbered as Article 24 of Chapter 160A by Session Laws 1979, c. 1247.


§ 160A-551. Definitions.

As used or referred to in this Article, unless a different meaning clearly appears from the context:

  1. The term "authority" shall mean a public body and a body corporate and politic organized in accordance with this Article for the purposes, with the powers and subject to the restrictions hereinafter set forth;
  2. The term "bonds" shall mean bonds authorized by this Article;
  3. The term "city" shall mean the city that is, or is about to be, included in the territorial boundaries of an authority when created hereunder;
  4. The term "city clerk" shall mean the clerk of the city or the officer thereof charged with the duties customarily imposed on the clerk;
  5. The term "city council" shall mean the legislative body, council, board of commissioners, or other body charged with governing the city;
  6. The term "commissioner" shall mean one of the members of an authority, appointed in accordance with the provisions of this Article;
  7. The term "parking project" shall mean any area or place operated or to be operated by the authority for the parking or storing of motor and other vehicles, open to public use for a fee, and shall without limiting the foregoing, include all real and personal property, driveways, roads, approaches, structures, garages, meters, mechanical equipment, and all appurtenances and facilities either on, above or under the ground which are used or usable in connection with such parking or storing of such vehicles, including on-street parking meters if so provided by the governing authority;
  8. The term "real property" shall mean lands, structures, franchises, and interest in lands, and any and all things usually included within the said term, and includes not only fees simple absolute but also any and all lesser interests, such as easements, rights-of-way, uses, leases, licenses, and all other incorporeal hereditaments and every estate, interest or right, legal or equitable, including terms of years, and liens thereon by way of judgments, mortgages or otherwise, and also claims for damage to real estate.

History

(1951, c. 779, s. 2; 1965, c. 998, s. 1; 1979, 2nd Sess., c. 1247, s. 44.)

§ 160A-552. Creation of authority.

The city council of any city may, upon its own initiative, and shall, upon petition of 25 or more residents of the city, hold a public hearing on the question whether or not it is necessary for the city to organize an authority under the provisions of this Article. Notice of the time, place and purpose of such hearing shall be given by publication in a newspaper of general circulation in the city, at least once, at least 10 days before such hearing. At such hearing, an opportunity to be heard shall be granted to all residents and taxpayers of the city and all other interested persons. If, after such hearing, the city council shall by resolution determine that it is necessary for the city to organize an authority under the provisions of this Article, the city council shall appoint, as hereinafter provided, five commissioners to act as an authority. Said commission shall be a public body and a body corporate and politic upon the completion of the taking of the following proceedings:

The commissioners shall present or cause to be presented to the Secretary of State of North Carolina a written application signed by them, which shall set forth

  1. A statement that the city council has, pursuant to this Article, and after a public hearing held as herein required, determined that it is necessary for the city to organize an authority under the provisions of this Article, and has appointed the signers of such application as commissioners of such an authority;
  2. A statement that the commissioners desire the authority to become a public body and a body corporate and politic under this Article;
  3. The name, address and term of office of each of the commissioners;
  4. The name which is proposed for the corporation; and
  5. The location and the principal office of the proposed corporation.

The application shall be accompanied by a copy, certified by the city clerk, of the resolution or resolutions of the city council making such determination and appointments. The application shall be subscribed and sworn to by each of said commissioners before an officer authorized by law to take and certify oaths, who shall certify upon the application that he personally knows said commissioners and knows them to be the persons appointed as stated in the application, and that each subscribed and swore thereto in the officer's presence. The Secretary of State shall examine the application and if he finds that the name proposed for the corporation is not identical with that of a person or any other corporation of this State or so nearly similar as to lead to confusion and uncertainty, he shall receive and file it and shall record it in an appropriate book of record in his office.

When the application has been made, filed and recorded, as herein provided, the authority shall constitute a public body and body corporate and politic under the name proposed in the application; and the Secretary of State shall make and issue a certificate of incorporation pursuant to this Article, under the seal of the State, and shall record the same with the application.

The boundaries of such authority shall be coterminous with those of such city.

In any suit, action or proceeding involving the validity or enforcement of or relating to any contract of the authority, the authority shall be conclusively deemed to have been established in accordance with the provisions of this Article upon proof of the issuance of the aforesaid certificate by the Secretary of State. A copy of such certificate, duly certified by the Secretary of State, shall be admissible in evidence in any such suit, action or proceeding, and shall be conclusive proof of the filing and contents thereof.

History

(1951, c. 779, s. 3; 1979, 2nd Sess., c. 1247, s. 44.)

§ 160A-553. Appointment, removal, etc., of commissioners; quorum; chairman; vice-chairman, agents and employees.

An authority shall consist of five commissioners appointed by the city council, and the city council shall designate the first chairman. No commissioner shall be a city official.

The commissioners who are first appointed shall be designated by the city council to serve for terms of one, two, three, four and five years respectively from the date of their appointment. Thereafter, the term of office shall be five years. A commissioner shall hold office until his successor has been appointed by the city council and has qualified. Vacancies shall be filled by the city council for the unexpired term. Three commissioners shall constitute a quorum. A commissioner shall receive no compensation for his services, but he shall be entitled to reimbursement for his actual and necessary expenses incurred in the performance of his official duties.

When the office of the first chairman of the authority becomes vacant, the authority shall select a chairman from among its members. An authority shall select from among its members a vice-chairman, and it may employ a secretary (who shall be executive director), technical experts and such other officers, agents and employees, permanent or temporary, as it may require, and shall determine their qualifications, duties and compensation. An authority may, with the consent of the city council call upon the city attorney or chief law officer of the city for such legal services as it may require, or it may employ its own counsel and legal staff. An authority may delegate to one or more of its agents or employees such powers or duties as it may deem proper. The city council may remove any member of the authority for inefficiency, neglect of duty or misconduct in office, giving him a copy of the charges against him and an opportunity of being heard in person, or by counsel, in his defense upon not less than 10 days' notice.

History

(1951, c. 779, s. 4; 1979, 2nd Sess., c. 1247, ss. 42, 44.)

Local Modification. - City of Greenville: 1989 (Reg. Sess., 1990), c. 912.

§ 160A-554. Duty of authority and commissioners.

The authority and its commissioners shall be under a statutory duty to comply or cause compliance strictly with all provisions of this Article and, in addition thereto, with each and every term, provision and covenant in any contract of the authority on its part to be kept or performed.

History

(1951, c. 779, s. 5; 1979, 2nd Sess., c. 1247, s. 44.)

§ 160A-555. Interested commissioners or employees.

No commissioner or employee of an authority shall acquire any interest direct or indirect in any parking project or in any property included or planned to be included in any parking project, nor shall he have any interest direct or indirect in any contract or proposed contract for materials or services to be furnished or used in connection with any parking project. If any commissioner or employee of an authority owns or controls an interest direct or indirect in any property included or planned to be included in any parking project, he shall immediately disclose the same in writing to the authority and such disclosure shall be entered upon the minutes of the authority. Failure to so disclose such interest shall constitute misconduct in office.

History

(1951, c. 779, s. 6; 1979, 2nd Sess., c. 1247, s. 44.)

§ 160A-556. Purpose and powers of the authority.

An authority incorporated under this Article shall constitute a public body and a body corporate and politic, exercising public powers as an agency or instrumentality of the city with which it is coterminous. The purpose of the authority shall be to relieve traffic congestion of the streets and public places in the city by means of parking facilities, and to that end to acquire, construct, improve, operate and maintain one or more parking projects in the city. To carry out said purpose, the authority shall have power:

  1. To sue and be sued;
  2. To have a seal and alter the same at pleasure;
  3. To acquire, hold and dispose of personal property for its corporate purposes, including the power to purchase prospective or tentative awards in connection with the condemnation of real property;
  4. To acquire by purchase or condemnation, and use real property necessary or convenient. All real property acquired by the authority by condemnation shall be acquired in the manner provided by law for the condemnation of land by the city;
  5. To make bylaws for the management and regulation of its affairs, and subject to agreements with bondholders, for the regulation of parking projects;
  6. To make contracts and leases, and to execute all instruments necessary or convenient;
  7. To construct such buildings, structures and facilities as may be necessary or convenient;
  8. To construct, reconstruct, improve, maintain and operate parking projects;
  9. To accept grants, loans or contributions from the United States, the State of North Carolina, or any agency or instrumentality of either of them, or the city, and to expend the proceeds for any purposes of the authority;
  10. To fix and collect rentals, fees and other charges for the use of parking projects or any of them subject to and in accordance with such agreements with bondholders as may be made as hereinafter provided;
  11. To do all things necessary or convenient to carry out the purpose of the authority and the powers expressly given to it by this Article;
  12. To issue revenue bonds under the Local Government Revenue Bond Act.

History

(1951, c. 779, s. 7; 1965, c. 998, s. 2; 1971, c. 780, s. 18; 1979, 2nd Sess., c. 1247, s. 44.)

§ 160A-557. Conveyance of property by the city to the authority; acquisition of property by the city or by the authority.

  1. The city may convey, with or without consideration, to the authority real and personal property owned by the city for use by the authority as a parking project or projects or a part thereof. In case of real property so conveyed, the instrument of conveyance shall contain a provision for reversion of the property to the city upon the termination of the corporate existence of the authority or upon the termination of the use of the property for the corporate purpose of the authority. Such conveyance of property by the city to the authority may be made without regard to the provisions of other laws regulating sales of property by the city or requiring previous advertisement of sales of property by the city.
  2. The city may acquire by purchase or condemnation real property in the name of the city for the authority or for the widening of existing roads, streets, parkways, avenues or highways or for new roads, streets, parkways, avenues or highways to any of the parking projects, or partly for such purposes and partly for other city purposes, by purchase or condemnation in the manner provided by law for the acquisition of real property by the city. The city may close such streets, roads, parkways, avenues, or highways as may be necessary or convenient.
  3. Contracts may be entered into between the city and the authority providing for the property to be conveyed by the city to the authority, the additional property to be acquired by the city and so conveyed, the streets, roads, parkways, avenues and highways to be closed by the city, and the amounts, terms and conditions of payment to be made by the authority. Such contracts may contain covenants by the city as to the road, street, parkway, avenue and highway improvements to be made by the city, including provisions for the installation of parking meters in designated streets of the city and for the removal of such parking meters in the event that such parking meters are not found to be necessary or convenient. Any such contract may pledge all or any part of the revenues of on-street parking meters to the authority for a period of not to exceed the period during which bonds of the authority shall be outstanding; provided, that the total amount of such revenues which may be paid pursuant to such a pledge shall not exceed the total of the principal of and interest on such bonds which become due and payable during such period. Such contracts may also contain provisions limiting or prohibiting the construction and operation by the city or any agency thereof in designated areas of public parking facilities and parking meters whether or not a fee or charge is made therefor. Any such contracts between the city and the authority may be pledged by the authority to secure its bonds and may not be modified thereafter except as provided by the terms of the contracts or by the terms of the pledge. The city council may authorize such contracts on behalf of the city and no other authorization on the part of the city for such contracts shall be necessary.
  4. The authority may itself acquire real property for a parking project at the cost and expense of the authority by purchase or condemnation pursuant to the laws relating to the condemnation of land by the city.
  5. In case the authority shall acquire any real property which it shall determine is no longer required for a parking project, then, if such real property was acquired at the cost and expense of the city, the authority shall have power to convey it without consideration to the city, or, if such real property was acquired at the cost and expense of the authority, then the authority shall have power to sell, lease or otherwise dispose of said real property and shall retain and have the power to use the proceeds of sale, rentals or other moneys derived from the disposition thereof for its purposes.

History

(1951, c. 779, s. 8; 1965, c. 998, s. 3; 1979, 2nd Sess., c. 1247, s. 44.)

§ 160A-558. Contracts.

The authority shall let contracts in the manner provided by law for contracts of the city.

History

(1951, c. 779, s. 9; 1979, 2nd Sess., c. 1247, s. 44.)

§ 160A-559. Moneys of the authority.

All moneys of the authority shall be paid to the treasurer of the city as agent of the authority, who shall designate depositories and who shall not commingle such moneys with any other moneys. Such moneys shall be deposited in a separate bank account or accounts. The moneys in such accounts shall be paid out on checks of the treasurer on written requisition of the chairman of the authority or of such other person or persons as the authority may authorize to make such requisitions. All deposits of such moneys shall be secured in the manner provided by law for securing deposits of moneys of the city. The city accountant of the city and his legally authorized representatives are authorized and empowered from time to time to examine the accounts and books of the authority, including its receipts, disbursements, contracts, leases, sinking funds, investments and any other records and papers relating to its financial standing. The authority shall cause an annual audit of its accounts to be made by a certified public accountant or firm of certified public accountants, and shall cause a copy of the report of each such audit to be filed with the city clerk, who shall present the same to the city council. The authority shall have power, notwithstanding the provisions of this section to contract with the holders of any of its bonds as to the custody, collection, securing, investment and payment of any moneys of the authority or any moneys held in trust or otherwise for the payment of bonds or in any way to secure bonds, and to carry out any such contract notwithstanding that such contract may be inconsistent with the previous provisions of this section. Moneys held in trust or otherwise for the payment of bonds or in any way to secure bonds and deposits of such moneys may be secured in the same manner as moneys of the authority, and all banks and trust companies are authorized to give such security for such deposits.

History

(1951, c. 779, s. 10; 1979, 2nd Sess., c. 1247, s. 44.)

§ 160A-560. Bonds legal investments for public officers and fiduciaries.

The bonds are hereby made securities in which all public officers and bodies of this State and all municipalities and municipal subdivisions, all insurance companies and associations and other persons carrying on an insurance business, all banks, bankers, trust companies, savings banks and savings associations, including savings and loan associations, investment companies and other persons carrying on a banking business and all other persons whatsoever, except as hereinafter provided, who are now or may hereafter be authorized to invest in bonds or other obligations of the State, may properly and legally invest funds including capital in their control or belonging to them; provided that, notwithstanding the provisions of any other general or special law to the contrary, such bonds shall not be eligible for the investment of funds, including capital, trusts, estates or guardianships under the control of individual administrators, guardians, executors, trustees and other individual fiduciaries. The bonds are also hereby made securities which may be deposited with and may be received by all public officers and bodies of this State and all municipalities and municipal subdivisions for any purpose for which the deposit of bonds or other obligations of this State is now or may hereafter be authorized.

History

(1951, c. 779, s. 15; 1979, 2nd Sess., c. 1247, s. 44.)

§ 160A-561. Exemptions from taxation.

It is hereby found, determined and declared that the creation of the authority and the carrying out of its corporate purposes is in all respects for the benefit of the people of the State of North Carolina, for the improvement of their health, welfare and prosperity, and for the promotion of their traffic, and is a public purpose, and that the authority will be performing an essential governmental function in the exercise of the powers conferred upon it by this Article, and the State of North Carolina covenants with the holders of the bonds that the authority shall be required to pay no taxes or assessments upon any of the property acquired by it or under its jurisdiction, control, possession or supervision or upon its activities in the operation and maintenance of the project or any tolls, revenues or other income received by the authority and that the bonds of the authority and the income therefrom shall at all times be exempt from taxation, except for transfer and estate taxes.

History

(1951, c. 779, s. 16; 1979, 2nd Sess., c. 1247, s. 44.)

§ 160A-562. Tax contract by the State.

The State of North Carolina covenants with the purchasers and with all subsequent holders and transferees of bonds issued by the authority pursuant to this Article, in consideration of the acceptance of and payment for the bonds, that the bonds of the authority issued pursuant to this Article and the income therefrom, and all moneys, funds and revenues pledged to pay or secure the payment of such bonds, shall at all times be free from taxation except for transfer and estate taxes.

History

(1951, c. 779, s. 17; 1979, 2nd Sess., c. 1247, s. 44.)

§ 160A-563. Actions against the authority.

In every action against the authority for damages, for injuries to real or personal property, or for the destruction thereof, or for personal injuries or death, the complaint shall contain an allegation that at least 30 days have elapsed since the demand, claim or claims upon which such action is founded were presented to a member of the authority, or to its secretary, or to its chief executive officer and that the authority has neglected or refused to make an adjustment or payment thereof for 30 days after such presentment.

History

(1951, c. 779, s. 19; 1979, 2nd Sess., c. 1247, s. 44.)

§ 160A-564. Termination of authority.

The city council shall have the authority to terminate the existence of the authority at any time. In the event of such termination, all property and assets of the authority shall automatically become the property of the city and the city shall succeed to all rights, obligations and liabilities of the authority.

History

(1951, c. 779, s. 20; 1979, 2nd Sess., c. 1247, ss. 43, 44.)

§ 160A-565. Inconsistent provisions in other acts superseded.

Insofar as the provisions of this Article are inconsistent with the provisions of any other act, general or special, the provisions of this Article shall be controlling. This Article shall not repeal or modify any other act providing a different method of financing parking projects in cities, the powers conferred hereby being intended to be in addition to and not in substitution for the powers conferred by other acts.

History

(1951, c. 779, s. 22; 1979, 2nd Sess., c. 1247, s. 44.)

§§ 160A-566 through 160A-574: Reserved for future codification purposes.

ARTICLE 25. Public Transportation Authorities.

Sec.

§ 160A-575. Title.

This Article shall be known and may be cited as the "North Carolina Public Transportation Authorities Act."

History

(1977, c. 465; 1979, 2nd Sess., c. 1247, s. 45.)

Editor's Note. - This Article was formerly Article 38A of Chapter 160. It was recodified as Article 25 of Chapter 160A by Session Laws 1979, c. 1247.

Opinions of Attorney General

District health department has authority to operate public transit on fare paying basis, without establishment of a Transportation Authority. Section 62-260(a)(1) specifically exempts political subdivisions of this State from regulation by the North Carolina Utilities Commission. See opinion of Attorney General to Mr. David D. King, Director of Division of Public Transportation, North Carolina Department of Transportation, 55 N.C.A.G. 76 (1986).

§ 160A-576. Definitions.

As used in this Article, unless the context otherwise requires:

  1. "Authority" means a body corporate and politic organized in accordance with the provisions of this Article for the purposes, with the powers and subject to the restrictions hereinafter set forth.
  2. "Governing body" means the board, commission, council or other body, by whatever name it may be known, in which the general legislative powers of the municipality are vested.
  3. "Municipality" means any county, city, or town of this State, and any other political subdivision, public corporation, authority, or district in this State, which is or may be authorized by law to acquire, establish, construct, enlarge, improve, maintain, own, and operate public transportation systems.
  4. "Municipality's chief administrative official" means the county manager, city manager, town manager, or other person, by whatever title he shall be known, in whom the responsibility for the municipality's administrative duties is vested.
  5. "Public transportation" means transportation of passengers whether or not for hire by any means of conveyance, including but not limited to a street railway, elevated railway or guideway, subway, motor vehicle or motor bus, either publicly or privately owned and operated, holding itself out to the general public for the transportation of persons within the territorial jurisdiction of the authority, including charter service.
  6. "Public transportation system" means, without limitation, a combination of real and personal property, structures, improvements, buildings, equipment, vehicle parking or other facilities, and rights-of-way, or any combination thereof, used or useful for the purposes of public transportation.

History

(1977, c. 465; 1979, 2nd Sess., c. 1247, s. 45.)

§ 160A-577. Creation; membership.

A municipality may, by resolution or ordinance, create a transportation authority, hereinafter sometimes referred to as the "authority." It shall be a body corporate and politic. It shall consist of up to 11 members as determined by the governing body of the municipality.

Members of the authority shall reside within the territorial jurisdiction of the authority as hereinafter set out. They shall be appointed by the governing body of the municipality. The terms of the members shall be fixed by the governing body. Appointments to fill vacancies occurring during the regular terms shall be made by the governing body. The appointments of all members shall run until their successors are appointed and qualified.

The members of the authority shall elect a chairman and vice-chairman from the membership of the authority. They shall also elect a secretary who may, or may not, be a member of the authority.

A majority of the members shall constitute a quorum for the transaction of business and an affirmative vote of the majority of the members present at a meeting of the authority shall be required to constitute action of the authority. Members of the authority shall receive such compensation, if any, as may be fixed by the governing body of the municipality.

History

(1977, c. 465; 1979, 2nd Sess., c. 1247, s. 45.)

§ 160A-578. Purpose of the authority.

The purpose of the authority shall be to provide for a safe, adequate and convenient public transportation system for the municipality creating the authority and for its immediate environs, through the granting of franchises, ownership and leasing of terminals, buses and other transportation facilities and equipment, and otherwise through the exercise of the powers and duties conferred upon it.

History

(1977, c. 465; 1979, 2nd Sess., c. 1247, s. 45.)

§ 160A-579. General powers of the authority.

The general powers of the authority shall include any or all of the following:

  1. To sue and be sued;
  2. To have a seal;
  3. To make rules and regulations, not inconsistent with this Chapter, for its organization and internal management;
  4. To employ persons deemed necessary to carry out the management functions and duties assigned to them by the authority and to fix their compensation, within the limit of available funds;
  5. With the approval of the municipality's chief administrative official, to use officers, employees, agents and facilities of the municipality for such purposes and upon such terms as may be mutually agreeable;
  6. To retain and employ counsel, auditors, engineers and private consultants on an annual salary, contract basis, or otherwise for rendering professional or technical services and advice;
  7. To acquire, maintain and operate such lands, buildings, structures, facilities, and equipment as may be necessary or convenient for the operations of the authority and for the operation of a public transportation system;
  8. To make or enter into contracts, agreements, deeds, leases, conveyances or other instruments, including contracts and agreements with the United States and the State of North Carolina;
  9. To surrender to the municipality any property no longer required by the authority;
  10. To make plans, surveys and studies of public transportation facilities within the territorial jurisdiction of the authority and to prepare and make recommendations in regard thereto;
  11. To enter into and perform contracts with public transportation companies with respect to the operation of public passenger transportation;
  12. To issue certificates of public convenience and necessity; and to grant franchises and enter into franchise agreements and in all respects to regulate the operation of buses, taxicabs and other methods of public passenger transportation which originate and terminate within the territorial jurisdiction of the authority as fully as the municipality is now or hereafter empowered to do within the territorial jurisdiction of the municipality;
  13. To operate public transportation systems and to enter into and perform contracts to operate public transportation services and facilities and to own or lease property, facilities and equipment necessary or convenient therefor, and to rent, lease or otherwise sell the right to do so to any person, public or private; further, to the extent authorized by resolution or ordinance of the municipality to obtain grants, loans and assistance from the United States, the State, any public body, or any private source whatsoever;
  14. To enter into and perform contracts and agreements with other public transportation authorities pursuant to the provisions of G.S. 160A-460 through 160A-464 of Part 1 of Article 20 of Chapter 160A of the General Statutes; in addition, to enter into and perform contracts with other units of local government when specifically authorized by the governing body, pursuant to the provisions of G.S. 160A-460 through 160A-464 of Part 1 of Article 20 of Chapter 160A of the General Statutes;
  15. To do all things necessary or convenient to carry out its purpose and to exercise the powers granted to the authority.

History

(1977, c. 465; 1979, 2nd Sess., c. 1247, s. 45.)

Opinions of Attorney General

A public transportation authority may borrow funds from private lending institutions. See opinion of Attorney General to Mr. David D. King, Director, Division of Public Transportation of the North Carolina Department of Transportation, 54 N.C.A.G. 8 (1984).

§ 160A-580. Authority of Utilities Commission not affected.

Except as otherwise provided herein, nothing in this Article shall be construed to limit or otherwise affect the power or authority of the North Carolina Utilities Commission or the right of appeal to the North Carolina Utilities Commission as provided by law.

History

(1977, c. 465; 1979, 2nd Sess., c. 1247, s. 45.)

§ 160A-581. Territorial jurisdiction.

The jurisdiction of the authority shall extend to all local public passenger transportation operating within the municipality. Said jurisdiction shall also extend up to 30 miles outside of the corporate limits of the municipality where the municipality is a town or city, and up to five miles outside of the boundaries of the municipality where the municipality is a county or up to five miles outside of the combined boundaries of a group of counties. The authority shall not have jurisdiction over public transportation subject to the jurisdiction of and regulated by the I.C.C., nor shall it have jurisdiction over intrastate public transportation classified as common carriers of passengers by the North Carolina Utilities Commission. A public transportation authority shall not extend service into a political subdivision without the consent of the governing body of that political subdivision. A majority vote of the governing body shall constitute consent.

History

(1977, c. 465; 1979, 2nd Sess., c. 1247, s. 45.)

§ 160A-582. Fiscal accountability.

The authority shall be fiscally accountable to the municipality, and the municipality's governing body shall have authority to examine all records and accounts of the authority at any time.

History

(1977, c. 465; 1979, 2nd Sess., c. 1247, s. 45.)

§ 160A-583. Funds.

The establishment and operation of a transportation authority as herein authorized are governmental functions and constitute a public purpose, and the municipality is hereby authorized to appropriate funds to support the establishment and operation of the transit authority. The municipality may also dedicate, sell, convey, donate or lease any of its interest in any property to the authority. Further, the authority is hereby authorized to establish such license and regulatory fees and charges as it may deem appropriate, subject to the approval of the governing body of the municipality. If the governing body finds that the funds otherwise available are insufficient, it may call a special election without a petition and submit to the qualified voters of the municipality the question of whether or not a special tax shall be levied and/or bonds issued, specifying the maximum amount thereof, for the purpose of acquiring lands, buildings, equipment and facilities and for the operations of the transit authority. Any special election shall be conducted in accordance with G.S. 163-287.

History

(1977, c. 465; 1979, 2nd Sess., c. 1247, s. 45; 2013-381, s. 10.29; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.)

Re-codification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled `Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification, in consultation with the State Ethics Commission, the State Board of Elections, the Secretary of State, and the new Bipartisan State Board of Elections and Ethics Enforcement. Pursuant to this authority, the Revisor of Statutes, substituted "163A-1592" for "163-287" in the last sentence.

Session Laws 2018-146, ss. 3.1(a), (b) and 6.1 repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the change to the reference in this section.

Effect of Amendments. - Session Laws 2013-381, s. 10.29, effective January 1, 2014, added the last sentence in this section. For applicability, see Editor's note.

§ 160A-584. Effect on existing franchises and operations.

In the event a transportation authority is established under the authority of this Article, any existing franchises granted by the municipality shall continue in full force and effect until legally terminated; further, all ordinances and resolutions of the municipality regulating bus operations and taxicabs shall continue in full force and effect until superseded by regulations of the transportation authority.

History

(1977, c. 465; 1979, 2nd Sess., c. 1247, s. 45.)

§ 160A-585. Termination.

The governing body of the municipality shall have the authority to terminate the existence of the authority at any time. In the event of such termination, all property and assets of the authority shall automatically become the property of the municipality and the municipality shall succeed to all rights, obligations and liabilities of the authority.

History

(1977, c. 465; 1979, 2nd Sess., c. 1247, s. 45.)

§ 160A-586. Controlling provisions.

Insofar as the provisions of this Article are not consistent with the provisions of any other law, public or private, the provisions of this Article shall be controlling.

History

(1977, c. 465; 1979, 2nd Sess., c. 1247, s. 45.)

§ 160A-587. Consolidation of public transportation authority and parking authority.

The municipality may, by resolution or ordinance, vest in a single body corporate and politic both the powers of a public transportation authority in accordance with the provisions of this Article and the powers of a parking authority in accordance with the provisions of Article 38 of Chapter 160 of the General Statutes. Notwithstanding the membership provisions of G.S. 160A-553, the members of a consolidated body created pursuant to this section shall be selected according to the provisions of G.S. 160A-577.

History

(1977, c. 465; 1979, 2nd Sess., c. 1247, s. 45.)

Editor's Note. - Article 38 of Chapter 160, referred to in this section, was transferred by Session Laws 1979, 2nd Sess., c. 1247, s. 44 to G.S. 160A-550 through 160A-565.


§ 160A-588. Joint provision of services.

Two or more municipalities may cooperate in the exercise of any power granted by this Article according to the procedures and provisions of G.S. 160A-460 through 160A-464 of Part 1 of Article 20 of Chapter 160A of the General Statutes. Additional municipalities may join an existing transportation authority upon making satisfactory arrangements pursuant to the provisions of G.S. 160A-460 through 160A-464 of Part 1 of Article 20 of Chapter 160A of the General Statutes.

History

(1977, c. 465; 1979, 2nd Sess., c. 1247, s. 45.)

§§ 160A-589 through 160A-599: Reserved for future codification purposes.

ARTICLE 26. Regional Public Transportation Authority.

Sec.

§ 160A-600. Title.

This Article shall be known and may be cited as the "Regional Public Transportation Authority Act."

History

(1989, c. 740, s. 1.)

§ 160A-601. Definitions.

As used in this Article, unless the context otherwise requires:

  1. "Authority" means a Regional Public Transportation Authority as defined by subdivision (6) of this section.
  2. "Board of Trustees" means the governing board of the Authority, in which the general legislative powers of the Authority are vested.
  3. "Population" means the number of persons residing in respective areas as defined and enumerated in the most recent decennial federal census.
  4. "Public transportation" means transportation of passengers whether or not for hire by any means of conveyance, including but not limited to a street or elevated railway or guideway, subway, motor vehicle or motor bus, carpool or vanpool, either publicly or privately owned and operated, holding itself out to the general public for the transportation of persons within or working within the territorial jurisdiction of the Authority, excluding charter, tour, or sight-seeing service.
  5. "Public transportation system" means, without limitation, a combination of real and personal property, structures, improvements, buildings, equipment, vehicle parking or other facilities, railroads and railroad rights-of-way whether held in fee simple by quitclaim or easement, and rights-of-way, or any combination thereof, used or useful for the purposes of public transportation. "Public transportation system" however, does not include streets, roads, or highways except those for ingress and egress to vehicle parking.
  6. "Regional Public Transportation Authority," means a body corporate and politic organized in accordance with the provisions of this Article for the purposes, with the powers and subject to the restrictions hereinafter set forth.
  7. "Unit of local government" means any county, city, town or municipality of this State, and any other political subdivision, public corporation, Authority, or district in this State, which is or may be authorized by law to acquire, establish, construct, enlarge, improve, maintain, own, and operate public transportation systems.
  8. "Unit of local government's chief administrative official" means the county manager, city manager, town manager, or other person, by whatever title he shall be known, in whom the responsibility for the unit of local government's administrative duties is vested.

History

(1989, c. 740, s. 1.)

CASE NOTES

Cited in McIver v. Smith, 134 N.C. App. 583, 518 S.E.2d 522 (1999).


§ 160A-602. Definition of territorial jurisdiction of Authority.

An authority may be created for any area of the State that, at the time of creation of the authority, meets the following criteria:

  1. The area consists of three counties:
  2. At least one of those counties contains at least part of a County Research and Production Service District established pursuant to Part 2 of Article 16 of Chapter 153A of the General Statutes; and
  3. The other two counties each:
    1. Contain at least one unit of local government that is designated by the Governor of the State of North Carolina as a recipient pursuant to Section 9 of the Urban Mass Transportation Act of 1964, as amended; and
    2. Are adjacent to at least one county that contains at least part of a County Research and Production Service District established pursuant to Part 2 of Article 16 of Chapter 153A of the General Statutes.

History

(1989, c. 740, s. 1.)

§ 160A-603. Creation of Authority.

  1. The Boards of Commissioners of all three counties within an area for which an authority may be created as defined in G.S. 160A-602 may by resolution signify their determination to organize an authority under the provisions of this Article. Each of such resolutions shall be adopted after a public hearing thereon, notice of which hearing shall be given by publication at least once, not less than 10 days prior to the date fixed for such hearing, in a newspaper having a general circulation in the county. Such notice shall contain a brief statement of the substance of the proposed resolution, shall set forth the proposed articles of incorporation of the Authority and shall state the time and place of the public hearing to be held thereof. No county shall be required to make any other publication of such resolution under the provisions of any other law.
  2. Each such resolution shall include articles of incorporation which shall set forth:
    1. The name of the authority;
    2. A statement that such authority is organized under this Article; and
    3. The names of the three organizing counties.
  3. A certified copy of each of such resolutions signifying the determination to organize an authority under the provisions of this Article shall be filed with the Secretary of State, together with proof of publication of the notice of hearing on each of such resolutions. If the Secretary of State finds that the resolutions, including the articles of incorporation, conform to the provisions of this Article and that the notices of hearing were properly published, he shall file such resolutions and proofs of publication in his office and shall issue a certificate of incorporation under the seal of the State and shall record the same in an appropriate book of record in his office. The issuance of such certificate of incorporation by the Secretary of State shall constitute the Authority a public body and body politic and corporate of the State of North Carolina. Said certificate of incorporation shall be conclusive evidence of the fact that such authority has been duly created and established under the provisions of this Article.
  4. When the Authority has been duly organized and its officers elected as herein provided the secretary of the Authority shall certify to the Secretary of State the names and addresses of such officers as well as the address of the principal office of the Authority.
  5. The Authority may become a Designated Recipient pursuant to the Urban Mass Transportation Act of 1964, as amended.

History

(1989, c. 740, s. 1.)

§ 160A-604. Territorial jurisdiction of the Authority.

  1. The territorial jurisdiction of any authority created pursuant to this Article shall be coterminous with the boundaries of the three counties that organized it.
  2. Except as provided by this Article, the jurisdiction of the Authority may include all local public passenger transportation operating within the territorial jurisdiction of the Authority, but the Authority may not take over the operation of any existing public transportation without the consent of the owner.
  3. The Authority shall not have jurisdiction over public transportation subject to the jurisdiction of and regulated by the Interstate Commerce Commission, nor shall it have jurisdiction over intrastate public transportation classified as common carriers of passengers by the North Carolina Utilities Commission.

History

(1989, c. 740, s. 1.)

§ 160A-605. Membership; officers; compensation.

  1. The governing body of an authority is the Board of Trustees. The Board of Trustees shall consist of 13 members, appointed as follows:
    1. The county with the greatest population shall be allocated five members to be appointed as follows:
      1. Two by the board of commissioners of that county;
      2. Two by the city council of the city containing the largest population within that county; and
      3. One by the city council of the city containing the second largest population within that county;
    2. The county with the next greatest population shall be allocated three members to be appointed as follows:
      1. One by the board of commissioners of that county;
      2. One by the city council of the city containing the largest population within that county; and
      3. One jointly by that board of commissioners and city council, by procedures agreed on between them;
    3. The county with the least population shall be allocated two members to be appointed as follows:
      1. One by the board of commissioners of that county; and
      2. One by the city council of the city containing the largest population within that county; and
    4. Three members of the Board of Transportation appointed by the Secretary of Transportation, to serve as ex officio nonvoting members.
  2. Voting members of the Board of Trustees shall serve for terms of four years, provided that one-half of the initial appointments shall be for two-year terms, to be determined by lot at the first meeting of the Board of Trustees. Initial terms of office shall commence upon approval by the Secretary of State of the articles of incorporation. The members appointed by the Secretary of Transportation shall serve at his pleasure.
  3. An appointing authority may appoint one of its members to the Board of Trustees. Service on the Board of Trustees may be in addition to any other office which a person is entitled to hold. Each voting member of the Board of Trustees may hold elective public office as defined by G.S. 128-1.1(d).
  4. Members of the Board of Trustees shall reside within the territorial jurisdiction of the Authority as defined by G.S. 160A-604.
  5. The Board of Trustees shall annually elect from its membership a Chairperson, and a Vice-Chairperson, and shall annually elect a Secretary, and a Treasurer.
  6. Members of the Board of Trustees shall receive the sum of fifty dollars ($50.00) as compensation for attendance at each duly conducted meeting of the Authority.

History

(1989, c. 740, s. 1.)

§ 160A-606. Voting; removal.

  1. Six members of the Board of Trustees shall constitute a quorum for the transaction of business. Except as provided by G.S. 160A-605(a)(4), each member shall have one vote.
  2. Each member of the Board of Trustees may be removed with or without cause by the appointer(s). If the appointment was made jointly by two boards, the removal must be concurred in by both.
  3. Appointments to fill vacancies shall be made for the remainder of the unexpired term by the respective appointer(s) charged with the responsibility for making such appointments pursuant to G.S. 160A-605. All members shall serve until their successors are appointed and qualified, unless removed from office.

History

(1989, c. 740, s. 1.)

§ 160A-607. Advisory committees.

The Board of Trustees may provide for the selection of such advisory committees as it may find appropriate, which may or may not included members of the Board of Trustees.

History

(1989, c. 740, s. 1.)

§ 160A-607.1. Special tax board.

  1. The special tax board of an authority shall be composed of two representatives from each of the counties organizing the authority appointed annually by the board of commissioners of each of those counties' members at the first regular meeting thereof in January, except that the initial members shall serve a term beginning on the date that the initial terms of the board of trustees of that authority begin under G.S. 160A-605(b), and ending on the last day of December of that year. Each member of the special tax board must be a member of the board of commissioners of the county by which he was appointed. Membership on the special tax board may be held in addition to the offices authorized by G.S. 128-1 or G.S. 128-1.1. Said representatives shall hold office from their appointment until their successors are appointed and qualified, except that when any member of the special tax board ceases for any reason to be a member of the board of commissioners of the county by which he was appointed, he shall simultaneously cease to be a member of said special tax board. Upon the occurrence of any vacancy on said special tax board, the vacancy shall be filled within 30 days after notice thereof by the board of commissioners of the county having a vacancy in its representation. Each member of the special tax board, before entering upon his duties, shall take and subscribe an oath or affirmation to support the Constitution and laws of the United States and of this State and to discharge faithfully the duties of his office; and a record of each such oath shall be filed in the minutes of the respective participating units of local government.
  2. The special tax board shall meet regularly at such places and on such dates as are determined by the special tax board. The initial meeting shall be called jointly by the chairmen of the boards of commissioners of the counties organizing the authority. Special meetings may be called by the chairman of the special tax board on his own initiative and shall be called by him upon request of two or more members of the board. All members shall be notified in writing at least 24 hours in advance of such meeting. A majority of the members of the special tax board shall constitute a quorum. No vacancy in the membership of the special tax board shall impair the right of a quorum to exercise all the rights and perform all the duties of the special tax board. No action, other than an action to recess or adjourn, shall be taken except upon a majority vote of the entire authorized membership of said special tax board. Each member, including the chairman, shall be entitled to vote on any question.
  3. The special tax board shall elect annually in January from among its members a chairman, vice-chairman, secretary and treasurer, except that initial officers shall be elected at the first meeting of the special tax board.

History

(1989, c. 740, s. 1.)

§ 160A-608. Purpose of the Authority.

The purpose of the Authority shall be to finance, provide, operate, and maintain for a safe, clean, reliable, adequate, convenient, energy efficient, economically and environmentally sound public transportation system for the service area of the Authority through the granting of franchises, ownership and leasing of terminals, buses and other transportation facilities and equipment, and otherwise through the exercise of the powers and duties conferred upon it, in order to enhance mobility in the region and encourage sound growth patterns.

Such a service, facility, or function shall be financed, provided, operated, or maintained in the service area of the Authority either in addition to or to a greater or lesser extent than services, facilities, or functions are financed, provided, operated, or maintained for the entirety of the respective units of local government.

History

(1989, c. 740, s. 1.)

§ 160A-609. Service area of the Authority.

The service area of the Authority shall be as determined by the Board of Trustees consistent with its purpose, but shall not exceed the territorial jurisdiction of the authority and any area it may provide service to under G.S. 160A-610.

History

(1989, c. 740, s. 1.)

§ 160A-610. General powers of the Authority.

The general powers of the Authority shall include any or all of the following:

  1. To sue and be sued;
  2. To have a seal;
  3. To make rules and regulations, not inconsistent with this Chapter, for its organization and internal management;
  4. To employ persons deemed necessary to carry out the functions and duties assigned to them by the Authority and to fix their compensation, within the limit of available funds;
  5. With the approval of the unit of local government's chief administrative official, to use officers, employees, agents and facilities of the unit of local government for such purposes and upon such terms as may be mutually agreeable;
  6. To retain and employ counsel, auditors, engineers and private consultants on an annual salary, contract basis, or otherwise for rendering professional or technical services and advice;
  7. To acquire, lease as lessee with or without option to purchase, hold, own, and use any franchise, property, real or personal, tangible or intangible, or any interest therein and to sell, lease as lessor with or without option to purchase, transfer (or dispose thereof) whenever the same is no longer required for purposes of the Authority, or exchange same for other property or rights which are useful for the Authority's purposes, including but not necessarily limited to parking facilities;
  8. To enhance mobility within the region     and promote sound growth patterns through joint transit     development projects as generally described by Federal Transit Administration (FTA) policy at 62 Fed. Reg. 12266 (1997) and implementing guidelines in FTA Circular 9300.1A, Appendix B, as the policy and guidance may be amended; and, with respect to the planning, construction, and operation of joint transit development projects, upon the governing board's adoption of policies and procedures to ensure fair and open competition, to select developers or development teams in substantially the same manner as permitted by G.S. 143-129(h); and to enter into development agreements with public, private, or nonprofit entities to undertake the planning, construction, and operation of joint transit development projects.
  9. To acquire by gift, purchase, lease as lessee with or without option to purchase or otherwise to construct, improve, maintain, repair, operate or administer any component parts of a public transportation system or to contract for the maintenance, operation or administration thereof or to lease as lessor the same for maintenance, operation, or administration by private parties, including but not necessarily limited to parking facilities;
  10. To make or enter into contracts, agreements, deeds, leases with or without option to purchase, conveyances or other instruments, including contracts and agreements with the United States, the State of North Carolina, and units of local government;
  11. To purchase or finance real or personal property in the manner provided for cities and counties under G.S. 160A-20;
  12. To surrender to the State of North Carolina any property no longer required by the Authority;
  13. To develop and make data, plans, information, surveys and studies of public transportation facilities within the territorial jurisdiction of the Authority, to prepare and make recommendations in regard thereto;
  14. To enter in a reasonable manner lands, waters or premises for the purpose of making surveys, soundings, drillings, and examinations whereby such entry shall not be deemed a trespass except that the Authority shall be liable for any actual and consequential damages resulting from such entries;
  15. To develop and carry out demonstration projects;
  16. To make, enter into, and perform contracts with private parties, and public transportation companies with respect to the management and operation of public passenger transportation;
  17. To make, enter into, and perform contracts with any public utility, railroad or transportation company for the joint use of property or rights, for the establishment of through routes, joint fares or transfer of passengers;
  18. To make, enter into, and perform agreements with governmental entities for payments to the Authority for the transportation of persons for whom the governmental entities desire transportation;
  19. With the consent of the unit of local government which would otherwise have jurisdiction to exercise the powers enumerated in this subdivision: to issue certificates of public convenience and necessity; and to grant franchises and enter into franchise agreements and in all respects to regulate the operation of buses, taxicabs and other methods of public passenger transportation which originate and terminate within the territorial jurisdiction of the Authority as fully as the unit of local government is now or hereafter empowered to do within the territorial jurisdiction of the unit of local government;
  20. To operate public transportation systems and to enter into and perform contracts to operate public transportation services and facilities and to own or lease property, facilities and equipment necessary or convenient therefor, and to rent, lease or otherwise sell the right to do so to any person, public or private; further, to obtain grants, loans and assistance from the United States, the State of North Carolina, any public body, or any private source whatsoever, but may not operate or contract for the operation of public transportation systems outside the territorial jurisdiction of the Authority except as provided by subdivision (20) of this section;
  21. To enter into and perform contracts and agreements with other public transportation authorities, regional public transportation authorities or units of local government pursuant to the provisions of G.S. 160A-460 through 160A-464 (Part 1 of Article 20 of Chapter 160A of the General Statutes); further to enter into contracts and agreements with private transportation companies, but this subdivision does not authorize the operation of, or contracting for the operation of, service of a public transportation system outside the service area of the Authority;
  22. To operate public transportation systems extending service into any political subdivision of the State of North Carolina unless a particular unit of local government operating its own public transportation system or franchising the operation of a public transportation system by majority vote of its governing board, shall deny consent, but such service may not extend more than 10 miles outside of the territorial jurisdiction of the authority, except that vanpool and carpool service shall not be subject to that mileage limitation;
  23. Except as restricted by covenants in bonds, notes, or equipment trust certificates, to set in its sole discretion rates, fees and charges for use of its public transportation system;
  24. To do all things necessary or convenient to carry out its purpose and to exercise the powers granted to the Authority;
  25. To collect or contract for the collection of taxes which it is authorized by law to levy;
  26. To issue bonds or other obligations of the Authority as provided by law and apply the proceeds thereof to the financing of any public transportation system or any part thereof and to refund, whether or not in advance of maturity or the earliest redemption date, any such bonds or other obligations; and
  27. To contract for, or to provide and maintain, with respect to the facilities and property owned, leased with or without option to purchase, operated or under the control of the Authority, and within the territory thereof, a security force to protect persons and property, dispense unlawful or dangerous assemblages and assemblages which obstruct full and free passage, control pedestrian and vehicular traffic, and otherwise preserve and protect the public peace, health, and safety; for these purposes a member of such force shall be a peace officer and, as such, shall have authority equivalent to the authority of a police officer of the city or county in which said member of such force is discharging such duties.
  28. To contract for the purchase, lease, or other acquisition of any apparatus, supplies, materials, or equipment for public transit purposes with any person or entity that, within the previous 60 months, after having completed a public formal bid process substantially similar to that required by Article 8 of Chapter 143 of the General Statutes or through the competitive proposal method provided in G.S. 143-129(h), has contracted to furnish the apparatus, supplies, materials, or equipment to any unit or agency approved in G.S. 143-129(g) if the person or entity is willing to furnish the items at the same or more favorable prices, terms, and conditions as those provided under the contract with the other unit or agency. Any purchase made under this section shall be approved by the Board of Trustees as provided in G.S. 143-129(g).

History

(1989, c. 740, s. 1; 1998-70, s. 2; 2000-67, s. 25.6; 2003-197, s. 2.)

Editor's Note. - Session Laws 1989, c. 799, s. 10 provided: "A Regional Public Transportation Authority created pursuant to Article 26 of Chapter 160A of the General Statutes may, in addition to all other powers granted by G.S. 160A-610, and in furtherance of G.S. 160A-613, apply for a grant from the Department of Transportation to be funded from the funds for public transportation received from the North Carolina Highway Trust Fund if those funds are available. The Department of Transportation may allocate to a regional public transportation authority any funds appropriated for public transportation."


§ 160A-611. Authority of Utilities Commission not affected.

  1. Except as otherwise provided in this Article, nothing in this Article shall be construed to limit or otherwise affect the power or authority of the North Carolina Utilities Commission or the right of appeal to the North Carolina Utilities Commission as provided by law.
  2. The North Carolina Utilities Commission shall not have jurisdiction over rates, fees, charges, routes, and schedules of an Authority for service within its territorial jurisdiction.

History

(1989, c. 740, s. 1.)

§ 160A-612. Fiscal accountability.

An Authority is a public authority subject to the provisions of Chapter 159 of the General Statutes.

History

(1989, c. 740, s. 1.)

§ 160A-613. Funds.

  1. The establishment and operation of an Authority are governmental functions and constitute a public purpose, and the State of North Carolina and any unit of local government may appropriate funds to support the establishment and operation of the Authority. The State of North Carolina and any unit of local government may also dedicate, sell, convey, donate or lease any of their interests in any property to the Authority. An authority may apply for grants from the State of North Carolina, or from the United States or any department, agency, or instrumentality thereof. The Department of Transportation may allocate to an authority any funds appropriated for public transportation, or any funds whose use is not restricted by law.
  2. Repealed by Session Laws 2010-95, s. 41, effective July 17, 2010.
  3. Notwithstanding any provision of G.S. 159-18, the Board of Trustees may accumulate moneys from any source authorized by this Article or by Article 50 of Chapter 105 of the General Statutes in a capital reserve fund for any authorized purpose of the Authority. Notwithstanding any provision of G.S. 159-19 or G.S. 159-22, the Board of Trustees may, by amendment to the resolution establishing a capital reserve fund, withdraw moneys accumulated in a fund for noncapital purposes if the capital outlay purpose for which the fund was created is no longer viable, as determined by a majority of the Board of Trustees. Except as otherwise provided in this subsection, the provisions of Part 2 of Article 3 of Chapter 159 of the General Statutes shall control the establishment of capital reserve funds by the Authority.

History

(1989, c. 740, s. 1; 1991, c. 666, s. 1; 2001-424, s. 27.28; 2010-95, s. 41.)

Effect of Amendments. - Session Laws 2010-95, s. 41, effective July 17, 2010, repealed subsection (b), which read: "The Authority may levy an annual vehicle registration tax not to exceed five dollars ($5.00) per vehicle in accordance with G.S. 160A-623."


§ 160A-613.1. Competition.

No equipment of the authority may be used for charter, tour, or sight-seeing service.

History

(1989, c. 740, s. 1.)

§ 160A-614. Effect on existing franchises and operations.

Creation of the Authority shall not have an effect on any existing franchises granted by any unit of local government; such existing franchises shall continue in full force and effect until legally terminated; further, all ordinances and resolutions of the unit of local government regulating local public transportation systems, bus operations, and taxicabs shall continue in full force and effect now and in the future, unless superseded by regulations of the Authority; such superseding, if any, may occur only on the basis of prior mutual agreement between the Authority and the respective unit of local government.

History

(1989, c. 740, s. 1.)

§ 160A-615. Termination.

The Board of Trustees may terminate the existence of the Authority at any time when it has no outstanding indebtedness. In the event of such termination, all property and assets of the Authority not otherwise encumbered shall automatically become the property of the State of North Carolina, and the State of North Carolina shall succeed to all rights, obligations, and liabilities of the Authority.

History

(1989, c. 740, s. 1.)

§ 160A-616. Controlling provisions.

Insofar as the provisions of this Article are not consistent with the provisions of any other law, public or private, the provisions of this Article shall be controlling.

History

(1989, c. 740, s. 1.)

§ 160A-617. Bonds and notes authorized.

In addition to the powers granted by this Article, the Authority may issue bonds and notes pursuant to the provisions of the Local Government Bond Act and the Local Government Revenue Bond Act for the purpose of financing public transportation systems or any part thereof and to refund such bonds and notes, whether or not in advance of their maturity or earliest redemption date. Any bond order must be approved by resolution adopted by the special tax board of the Authority and in the case of a bond order under the Local Government Bond Act also by the board of county commissioners of each county organizing the authority. To pay any bond or note issued under the Local Government Bond Act, the Authority may not pledge the levy of any ad valorem tax, but only a tax or taxes it is authorized to levy.

History

(1989, c. 740, s. 1; 1989 (Reg. Sess., 1990), c. 1024, s. 41; 1991, c. 666, s. 5.)

§ 160A-618. Equipment trust certificates.

In addition to the powers here and before granted, the Authority shall have continuing power to purchase equipment, and in connection therewith execute agreements, leases with or without option to purchase, or equipment trust certificates. All money required to be paid by the Authority under the provisions of such agreements, leases with or without option to purchase, and equipment trust certificates shall be payable solely from the fares, fees, rentals, charges, revenues, and earnings of the Authority, monies derived from the sale of any surplus property of the Authority and gifts, grants, and contributions from any source whatever. Payment for such equipment or rentals therefore, may be made in installments; the deferred installments may be evidenced by equipment trust certificates payable solely from the aforesaid revenues or receipts and title to such equipment may or may not vest in the Authority until the equipment trust certificates are paid.

History

(1989, c. 740, s. 1.)

§ 160A-619. Power of eminent domain.

  1. The Authority shall have continuing power to acquire, by gift, grant, devise, exchange, purchase, lease with or without option to purchase, or any other lawful method, including but not limited to the power of eminent domain, the fee or any lesser interest in real or personal property for use by the Authority.
  2. Exercise of the power of eminent domain by the Authority shall be in accordance with Chapter 40A of the General Statutes.

History

(1989, c. 740, s. 1; 2011-284, s. 121.)

Effect of Amendments. - Session Laws 2011-284, s. 121, effective June 24, 2011, deleted "bequest" following "devise" in subsection (a).

§ 160A-620. Tax exemption.

The property of the Authority, both real and personal, its acts, activities and income shall be exempt from any tax or tax obligation; in the event of any lease of Authority property, or other arrangement which amounts to a leasehold interest, to a private party, this exemption shall not apply to the value of such leasehold interest nor shall it apply to the income of the lessee. Otherwise, however, for the purpose of taxation, when property of the Authority is leased to private parties solely for the purpose of the Authority, the acts and activities of the lessee shall be considered as the acts and activities of the Authority and the exemption. The interest on bonds or obligations issued by the Authority shall be exempt from State taxes.

History

(1989, c. 740, s. 1.)

§ 160A-621. Removal and relocation of utility structures.

  1. The Authority shall have the power to require any public utility, railroad, or other public service corporation owning or operating any installations, structures, equipment, apparatus, appliances or facilities in, upon, under, over, across or along any ways on which the Authority has the right to own, construct, operate or maintain its public transportation system, to relocate such installation, structures, equipment, apparatus, appliances or facilities from their locations, or, in the sole discretion of the affected public utility, railroad, or other public service corporation, to remove such installations, structures, equipment, apparatus, appliances or facilities from their locations.
  2. If the owner or operator thereof fails or refuses to relocate them, the Authority may proceed to do so.
  3. The Authority shall provide any necessary new locations and necessary real estate interests for such relocation, and for that purpose the power of eminent domain as provided in G.S. 160A-619 may be exercised provided the new locations shall not be in, on or above, a public highway; the Authority may also acquire the necessary new locations by purchase or otherwise.
  4. Any affected public utility, railroad or other public service corporation shall be compensated for any real estate interest taken in a manner consistent with G.S. 160A-619, subject to the right of the Authority to reduce the compensation due by the value of any property exchanged under this section.
  5. The method and procedures of a particular adjustment to the facilities of a public utility, railroad or other public service corporation shall be covered by an agreement between the Authority and the affected party or parties.
  6. The Authority shall reimburse the public utility, railroad or other public service corporation, for the cost of relocations or removals which shall be the entire amount paid or incurred by the utility properly attributable thereto after deducting the cost of any increase in the service capacity of the new installations, structures, equipment, apparatus, appliances or facilities and any salvage value derived from the old installations, structures, equipment, apparatus or appliances.

History

(1989, c. 740, s. 1.)

§ 160A-622: Reserved for future codification purposes.

§ 160A-623. Regional Transportation Authority registration tax.

In accordance with Article 51 of Chapter 105 of the General Statutes, an Authority organized under this Article may levy an annual license tax upon any motor vehicle with a tax situs within its territorial jurisdiction as defined by G.S. 160A-602. A tax levied under this section before the enactment of Article 51 of Chapter 105 of the General Statutes is considered a tax levied under Article 51 of Chapter 105 of the General Statutes.

History

(1991, c. 666, s. 2; 1993, c. 382, s. 1; c. 485, s. 28; 1993 (Reg. Sess., 1994), c. 761, s. 34; 1997-417, s. 5.)

§ 160A-624. Recommendation of additional revenue sources.

The Authority may make recommendations to the General Assembly concerning additional revenue sources, including, but not limited to:

  1. Annual vehicle registration fees;
  2. Ad valorem taxes;
  3. Local land transfer taxes;
  4. Drivers license fees;
  5. Sales taxes on automobile parts and accessories; and
  6. Motor fuels taxes.

Any additional revenue sources for an Authority must be approved by the General Assembly.

History

(1991, c. 666, s. 4.)

§ 160A-625. Reports to the General Assembly.

The Authority shall annually submit to the General Assembly, on or before February 1, its annual operating report, including a report of its administrative expenditures, and its audited financial report. In odd-numbered years, the report shall be submitted to the Senate and House Transportation Committees. In even-numbered years, the report shall be submitted to the Joint Legislative Transportation Oversight Committee.

History

(1993, c. 382, s. 2.)

§ 160A-626. Limitations on rail transportation liability.

  1. As used in this section:
    1. "Claim" means a claim, action, suit, or request for damages, whether compensatory, punitive, or otherwise, made by any person or entity against:
      1. The Authority, a railroad, or an operating rights railroad; or
      2. An officer, director, trustee, employee, parent, subsidiary, or affiliated corporation as defined in G.S. 105-130.2, or agent of: the Authority, a railroad, or an operating rights railroad.
    2. "Operating rights railroad" means a railroad corporation or railroad company that, prior to January 1, 2001, was granted operating rights by a State-Owned Railroad Company or operated over the property of a State-Owned Railroad Company under a claim of right over or adjacent to facilities used by or on behalf of the Authority.
    3. "Passenger rail services" means the transportation of rail passengers by or on behalf of the Authority and all services performed by a railroad pursuant to a contract with the Authority in connection with the transportation of rail passengers, including, but not limited to, the operation of trains; the use of right of way, trackage, public or private roadway and rail crossings, equipment, or station areas or appurtenant facilities; the design, construction, reconstruction, operation, or maintenance of rail related equipment, tracks, and any appurtenant facilities; or the provision of access rights over or adjacent to lines owned by the Authority or a railroad, or otherwise occupied by the Authority or a railroad, pursuant to charter grant, fee simple deed, lease, easement, license, trackage rights, or other form of ownership or authorized use.
    4. "Railroad" means a railroad corporation or railroad company, including a State-Owned Railroad Company as defined in G.S. 124-11, that has entered into any contracts or operating agreements of any kind with the Authority concerning passenger rail services.
  2. Contracts Allocating Financial Responsibility Authorized. - The Authority may contract with any railroad to allocate financial responsibility for passenger rail services claims, including, but not limited to, the execution of indemnity agreements, notwithstanding any other statutory, common law, public policy, or other prohibition against same, and regardless of the nature of the claim or the conduct giving rise to such claim.
  3. Insurance Required. -
    1. If the Authority enters into any contract authorized by subsection (b) of this section, the contract shall require the Authority to secure and maintain, upon and after the commencement of the operation of trains by or on behalf of the Authority, a liability insurance policy covering the liability of the parties to the contract, a State-Owned Railroad Company as defined in G.S. 124-11 that owns or claims an interest in any real property subject to the contract, and any operating rights railroad for all claims for property damage, personal injury, bodily injury, and death arising out of or related to passenger rail services. The policy shall name the parties to the contract, a State-Owned Railroad Company as defined in G.S. 124-11 that owns or claims an interest in any real property subject to the contract, and any operating rights railroad as named insureds and shall have policy limits of not less than two hundred million dollars ($200,000,000) per single accident or incident, and may include a self insured retention in an amount of not more than five million dollars ($5,000,000).
    2. If the Authority does not enter into any contract authorized by subsection (b) of this section, upon and after the commencement of the operation of trains by or on behalf of the Authority, the Authority shall secure and maintain a liability insurance policy, with policy limits and a self-insured retention consistent with subdivision (1) of this subsection, for all claims for property damage, personal injury, bodily injury, and death arising out of or related to passenger rail services.
  4. Liability Limit. - The aggregate liability of the Authority, the parties to the contract or contracts authorized by subsection (b) of this section, a State-Owned Railroad Company as defined in G.S. 124-11, and any operating rights railroad for all claims arising from a single accident or incident related to passenger rail services for property damage, personal injury, bodily injury, and death is limited to two hundred million dollars ($200,000,000) per single accident or incident or to any proceeds available under any insurance policy secured pursuant to subsection (c) of this section, whichever is greater.
  5. Effect on Other Laws. - This section shall not affect the damages that may be recovered under the Federal Employers' Liability Act, 45 U.S.C. § 51, et seq., (1908); or under Article 1 of Chapter 97 of the General Statutes.

History

(2002-78, s. 1; 2012-79, s. 1.14(g).)

Editor's Note. - The definitions in subsection (a) were redesignated at the direction of the Revisor of Statutes to preserve alphabetical order.

Effect of Amendments. - Session Laws 2012-79, s. 1.14(g), effective June 26, 2012, substituted "G.S. 105-130.2" for "G.S. 105-130.6" in sub-subdivision (a)(1)b.

CASE NOTES

Cited in Dickson v. Rucho, 366 N.C. 332, 737 S.E.2d 362 (2013).


§ 160A-627. Civil liability.

Except as provided in G.S. 160A-626, the Authority shall be deemed a city for purposes of civil liability pursuant to G.S. 160A-485. Governmental immunity of the Authority is waived to a minimum of twenty million dollars ($20,000,000) per single accident or incident. The Authority shall maintain a minimum of twenty million dollars ($20,000,000) per single accident or incident of liability insurance. Participation in a local government risk pool pursuant to Article 23 of Chapter 58 of the General Statutes shall be deemed to be the purchase of insurance for the purpose of this section.

History

(2005-160, s. 1.)

§§ 160A-628, 160A-629: Reserved for future codification purposes.

ARTICLE 27. Regional Transportation Authority.

Sec.

§ 160A-630. Title.

This Article shall be known and may be cited as the "Regional Transportation Authority Act."

History

(1997-393, s. 1.)

Editor's Note. - Session Laws 1997-393, s. 3.1, as amended by Session Laws 1997-443, s. 32.27(b), and by Session Laws 1997-456, s. 56.5, provides that the Major Investment Study authorized in Senate Bill 352 as enacted, which provides that funds appropriated to the Department of Transportation to fund a study for a passenger rail proposal for service between Asheville and Raleigh, and a proposal for commuter rail services between Winston-Salem, Greensboro, High Point, and outlying communities, shall be administered by the Regional Transportation Authority which includes Guilford and Forsyth Counties, in consultation with the Department of Transportation, the Forsyth County Metropolitan Planning Organization (MPO), the Greensboro MPO, and the High Point MPO.

§ 160A-631. Definitions.

As used in this Article, unless the context otherwise requires:

  1. "Authority" means a Regional Transportation Authority as defined by subdivision (6) of this section.
  2. "Board of Trustees" means the governing board of the Authority, in which the general legislative powers of the Authority are vested.
  3. "Population" means the number of persons residing in respective areas as defined and enumerated in the most recent decennial federal census.
  4. "Public transportation" means transportation of passengers whether or not for hire by any means of conveyance, including, but not limited to, a street or elevated railway or guideway, subway, motor vehicle or motor bus, carpool or vanpool, either publicly or privately owned and operated, holding itself out to the general public for the transportation of persons within or working within the territorial jurisdiction of the Authority, excluding charter, tour, or sight-seeing service.
  5. "Public transportation system" means, without limitation, a combination of real and personal property, structures, improvements, buildings, equipment, vehicle parking, or other facilities, railroads and railroad rights-of-way whether held in fee simple by quitclaim or easement, and rights-of-way, or any combination thereof, used or useful for the purposes of public transportation. "Public transportation system" however, does not include streets, roads, or highways except those for ingress and egress to vehicle parking.
  6. "Regional Transportation Authority," means a body corporate and politic organized in accordance with the provisions of this Article for the purposes, with the powers and subject to the restrictions hereinafter set forth.
  7. "Unit of local government" means any county, city, town or municipality of this State, and any other political subdivision, public corporation, Authority, or district in this State, which is or may be authorized by law to acquire, establish, construct, enlarge, improve, maintain, own, and operate public transportation systems.
  8. "Unit of local government's chief administrative official" means the county manager, city manager, town manager, or other person, by whatever title he shall be known, in whom the responsibility for the unit of local government's administrative duties is vested.

History

(1997-393, s. 1.)

§ 160A-632. Definition of territorial jurisdiction of Authority.

An authority may be created for the area of any Metropolitan Planning Organization of the State that, at the time of creation of the authority, meets the following criteria, such area being the initial territorial jurisdiction of the Authority:

  1. The area consists of all or part of five counties, all five counties of which form a contiguous territory;
  2. At least two of those counties are contiguous to each other and each have a population of 250,000 or over; and
  3. The other three counties each have a population of 100,000 or over.

History

(1997-393, s. 1.)

§ 160A-633. Creation of Authority.

  1. The city councils of the four largest cities within an area for which an authority may be created as defined in G.S. 160A-632 may by resolution signify their determination to organize an authority under the provisions of this Article. Each of such resolutions shall be adopted after a public hearing thereon, notice of which hearing shall be given by publication at least once, not less than 10 days prior to the date fixed for such hearing, in a newspaper having a general circulation in the county. Such notice shall contain a brief statement of the substance of the proposed resolution, shall set forth the proposed articles of incorporation of the Authority and shall state the time and place of the public hearing to be held thereof. No city shall be required to make any other publication of such resolution under the provisions of any other law.
  2. Each such resolution shall include articles of incorporation which shall set forth:
    1. The name of the authority;
    2. A statement that such authority is organized under this Article; and
    3. The names of the four organizing cities.
  3. A certified copy of each of such resolutions signifying the determination to organize an authority under the provisions of this Article shall be filed with the Secretary of State, together with proof of publication of the notice of hearing on each of such resolutions. If the Secretary of State finds that the resolutions, including the articles of incorporation, conform to the provisions of this Article and that the notices of hearing were properly published, he shall file such resolutions and proofs of publication in his office and shall issue a certificate of incorporation under the seal of the State and shall record the same in an appropriate book of record in his office. The issuance of such certificate of incorporation by the Secretary of State shall constitute the Authority, a public body and body politic and corporate of the State of North Carolina. Said certificate of incorporation shall be conclusive evidence of the fact that such authority has been duly created and established under the provisions of this Article.
  4. When the Authority has been duly organized and its officers elected as herein provided, the secretary of the Authority shall certify to the Secretary of State the names and addresses of such officers as well as the address of the principal office of the Authority.
  5. The Authority may become a Designated Recipient pursuant to the Urban Mass Transportation Act of 1964, as amended.

History

(1997-393, s. 1.)

§ 160A-634. Territorial jurisdiction and service area of the Authority.

  1. The territorial jurisdiction and service area of the Authority shall be as determined by the Board of Trustees consistent with its purpose, but shall initially consist of those areas included within the Metropolitan Planning Organization boundaries. With the consent by resolution of the affected board of county commissioners, the jurisdiction and area may be expanded to include contiguous areas, but the total jurisdiction and service area shall not exceed part or all of 12 counties. The jurisdiction and area include the entire area of the county if the Board of Trustees has been expanded to include the chair or other member of the board of commissioners of that county pursuant to G.S. 160A-635(a)(4).
  2. Except as provided by this Article, the jurisdiction of the Authority may include all local public passenger transportation operating within the territorial jurisdiction of the Authority, but the Authority may not take over the operation of any existing public transportation without the consent of the owner.
  3. The Authority shall not have jurisdiction over public transportation subject to the jurisdiction of and regulated by the United States Department of Transportation, nor shall it have jurisdiction over intrastate public transportation classified as common carriers of passengers by the North Carolina Utilities Commission.

History

(1997-393, s. 1; 1999-445, s. 1.)

§ 160A-635. Membership; officers; compensation.

  1. The governing body of an authority is the Board of Trustees. The Board of Trustees shall consist of:
    1. The mayor of the four cities within the service area that have the largest population, or a member of the city council designated by the city council to serve in the absence of the mayor.
    2. At least two, but not more than three, members of the Board of Transportation appointed by the Secretary of Transportation. Members appointed under this subdivision shall be (i) division members from a highway division or highway divisions located wholly or partially within the territorial jurisdiction of the Authority, (ii) at-large members who represent or have an expertise in mass transit and reside within the territorial jurisdiction of the Authority, or (iii) a combination of division members and at-large members meeting the requirements set forth in this subdivision.
    3. The chair of each Metropolitan Planning Organization or a member of the Metropolitan Planning Organization designated by the Metropolitan Planning Organization in the territorial jurisdiction.
    4. The chair of the board of commissioners of any county within the territorial jurisdiction or a member of the board of commissioners designated by the board to serve in the absence of the chair, but only if the Board of Trustees by resolution has expanded the Board of Trustees to include the chair of the board of commissioners of that county and the board of commissioners of that county has consented by resolution.
    5. The chair of the principal airport authority or airport commission of each of the two most populous counties within the territorial jurisdiction, as determined by the most recent decennial federal census. The chair of the airport authority or airport commission may appoint a designee. The designee is not required to be a member of the airport authority or airport commission.
  2. The members appointed by the Secretary of Transportation shall serve at the pleasure of the Secretary.
  3. Service on the Board of Trustees may be in addition to any other office which a person is entitled to hold. Each member of the Board of Trustees may hold elective public office as defined by G.S. 128-1.1(d).
  4. Members of the Board of Trustees shall reside within the territorial jurisdiction of the Authority as defined by G.S. 160A-634.
  5. The Board of Trustees shall annually elect from its membership a Chairperson, a Vice-Chairperson, a Secretary, and a Treasurer.
  6. Members of the Board of Trustees shall receive the sum of fifty dollars ($50.00) as compensation for attendance at each duly conducted meeting of the Authority.

History

(1997-393, s. 1; 1999-445, s. 2; 2004-203, s. 56; 2005-322, s. 1; 2016-54, s. 1.)

Editor's Note. - Session Laws 2016-54, s. 5, made the amendments to subdivision (a)(2) and subsections (c) and (e) of this section by Session Laws 2016-54, s. 1, applicable to contracts entered into and other actions taken by Regional Transportation Authorities on or after August 1, 2016.

Effect of Amendments. - Session Laws 2004-203, s. 56, effective August 17, 2004, added the last sentence of subdivision (a)(3).

Session Laws 2005-322, s. 1, effective August 26, 2005, rewrote subdivision (a)(3).

Session Laws 2016-54, s. 1, effective August 1, 2016, rewrote subdivision (a)(2) which formerly read: "Two members of the Board of Transportation appointed by the Secretary of Transportation, to serve as ex officio nonvoting members"; deleted "voting" preceding "member of the Board of Trustees" in subsection (c); and substituted "a Chairperson, a Vice-Chairperson, a Secretary, and a Treasurer" for "a Chairperson, and a Vice-Chairperson, and shall annually elect a Secretary, and a Treasurer" near the beginning of subsection (e). See editor's note for applicability.

§ 160A-636. Voting; action by the Board of Trustees.

  1. Quorum. - A majority of the membership of the Board of Trustees, excluding vacant seats, shall constitute a quorum. A member who has withdrawn from a meeting without being excused by majority vote of the remaining members present shall be counted as present for purposes of determining whether or not a quorum is present. No member shall be excused from voting except upon matters involving the consideration of the member's own financial interest or official conduct or on matters on which the member is prohibited from voting under any other provision of law.
  2. Action. - An affirmative vote equal to a majority of all the members of the Board of Trustees not excused from voting on the question in issue shall be required to authorize or commit the expenditure of public funds, or make, ratify, or authorize any contract on behalf of the Authority.

History

(1997-393, s. 1; 2016-54, s. 2.)

Editor's Note. - Session Laws 2016-54, s. 5, made the rewriting of this section by Session Laws 2016-54, s. 2, applicable to contracts entered into and other actions taken by Regional Transportation Authorities on or after August 1, 2016.

Effect of Amendments. - Session Laws 2016-54, s. 2, effective August 1, 2016, substituted "Voting; action by the Board of Trustees" for "Voting" in the section heading; in subsection (a), added the subsection designation (a), added the subsection heading "Quorum" and rewrote the subsection which formerly read "A majority of the members of the Board of Trustees shall constitute a quorum for the transaction of business. Except as provided by G.S. 160A-635(a)(2), each member shall have one vote"; and added subsection (b). See editor's note for applicability.


§ 160A-637. Advisory committees.

The Board of Trustees may provide for the selection of such advisory committees as it may find appropriate, which may or may not include members of the Board of Trustees.

History

(1997-393, s. 1.)

§ 160A-638. Purpose of the Authority.

The purpose of the authority is to enhance the quality of life in its territorial jurisdiction by promoting the development of sound transportation systems which provide transportation choices, enhance mobility, accessibility, and safety, encourage economic development and sound growth patterns, and protect the man-made and natural environments of the region.

History

(1997-393, s. 1.)

§ 160A-639. General powers of the Authority.

The general powers of the Authority shall include any or all of the following:

  1. To sue and be sued.
  2. To have a seal.
  3. To make rules and regulations, not inconsistent with this Chapter, for its organization and internal management.
  4. To employ a chief administrative officer to carry out the functions and duties of the Authority. The Board of Trustees shall fix the compensation of the chief administrative officer and any employees hired by the chief administrative officer pursuant to G.S. 160A-639.1, within the limit of available funds.
  5. With the approval of the unit of local government's chief administrative official, to use officers, employees, agents, and facilities of the unit of local government for such purposes and upon such terms as may be mutually agreeable.
  6. To retain and employ counsel, auditors, engineers, and private consultants on an annual salary, contract basis, or otherwise for rendering professional or technical services and advice.
  7. To acquire, lease as lessee with or without option to purchase, hold, own, and use any franchise, property, real or personal, tangible or intangible, or any interest therein, and to sell, lease as lessor with or without option to purchase, transfer (or dispose thereof) whenever the same is no longer required for purposes of the Authority, or exchange same for other property or rights which are useful for the Authority's purposes, including but not necessarily limited to parking facilities.
  8. To acquire by gift, purchase, lease as lessee with or without option to purchase or otherwise to construct, improve, maintain, repair, operate, or administer any component parts of a public transportation system or to contract for the maintenance, operation or administration thereof, or to lease as lessor the same for maintenance, operation, or administration by private parties, including, but not necessarily limited to, parking facilities.
  9. To make or enter into contracts, agreements, deeds, leases with or without option to purchase, conveyances or other instruments, including contracts and agreements with the United States, the State of North Carolina, and units of local government.
  10. To purchase or finance real or personal property in the manner provided for cities and counties under G.S. 160A-20.
  11. To surrender to the State of North Carolina any property no longer required by the Authority.
  12. To develop and make data, plans, information, surveys and studies of public transportation facilities within the territorial jurisdiction of the Authority and to prepare and make recommendations in regard thereto.
  13. To enter in a reasonable manner lands, waters, or premises for the purpose of making surveys, soundings, drillings, and examinations whereby such entry shall not be deemed a trespass except that the Authority shall be liable for any actual and consequential damages resulting from such entries.
  14. To develop and carry out demonstration projects.
  15. To make, enter into, and perform contracts with private parties, and public transportation companies with respect to the management and operation of public passenger transportation.
  16. To make, enter into, and perform contracts with any public utility, railroad or transportation company for the joint use of property or rights, for the establishment of through routes, joint fares, or transfer of passengers.
  17. To make, enter into, and perform agreements with governmental entities for payments to the Authority for the transportation of persons for whom the governmental entities desire transportation.
  18. With the consent of the unit of local government which would otherwise have jurisdiction to exercise the powers enumerated in this subdivision: to issue certificates of public convenience and necessity; and to grant franchises and enter into franchise agreements, and in all respects to regulate the operation of buses, taxicabs, and other methods of public passenger transportation which originate and terminate within the territorial jurisdiction of the Authority as fully as the unit of local government is now or hereafter empowered to do within the territorial jurisdiction of the unit of local government.
  19. To operate public transportation systems and to enter into and perform contracts to operate public transportation services and facilities, and to own or lease property, facilities and equipment necessary or convenient therefor, and to rent, lease or otherwise sell the right to do so to any person, public or private; further, to obtain grants, loans, and assistance from the United States, the State of North Carolina, any public body, or any private source whatsoever, but may not operate or contract for the operation of public transportation systems outside the territorial jurisdiction of the Authority except as provided by subdivision (20) of this section.
  20. To enter into and perform contracts and agreements with other public transportation authorities, regional public transportation authorities, or units of local government pursuant to the provisions of G.S. 160A-460 through G.S. 160A-464 (Part 1 of Article 20 of Chapter 160A of the General Statutes); further to enter into contracts and agreements with private transportation companies, but this subdivision does not authorize the operation of, or contracting for the operation of, service of a public transportation system outside the service area of the Authority.
  21. To operate public transportation systems extending service into any political subdivision of the State of North Carolina unless a particular unit of local government operating its own public transportation system or franchising the operation of a public transportation system by majority vote of its governing board, shall deny consent, but such service may not extend more than 10 miles outside of the territorial jurisdiction of the authority, except that vanpool and carpool service shall not be subject to that mileage limitation.
  22. Except as restricted by covenants in bonds, notes, or equipment trust certificates, to set in its sole discretion rates, fees, and charges for use of its public transportation system.
  23. To do all things necessary or convenient to carry out its purpose and to exercise the powers granted to the Authority.
  24. To facilitate the coordination of transportation plans in the service area and the activities of the member Metropolitan Planning Organizations.
  25. To maintain databases for the projection of future travel demands in the region.
  26. To provide and operate regional ridesharing and vanpool operations.
  27. To provide and operate regional transportation services for the elderly and handicapped.
  28. To provide other transportation related services, including air quality monitoring and analysis, as determined by the Board of Trustees.
  29. To issue bonds or other obligations of the Authority as provided by law and apply the proceeds thereof to the financing of any public transportation system or any part thereof and to refund, whether or not in advance of maturity or the earliest redemption date, any such bonds or other obligations.
  30. To contract for, or to provide and maintain, with respect to the facilities and property owned, leased with or without option to purchase, operated or under the control of the Authority, and within the territory thereof, a security force to protect persons and property, dispense unlawful or dangerous assemblages and assemblages which obstruct full and free passage, control pedestrian and vehicular traffic, and otherwise preserve and protect the public peace, health, and safety; for these purposes a member of such force shall be a peace officer and, as such, shall have authority equivalent to the authority of a police officer of the city or county in which said member of such force is discharging such duties.

History

(1997-393, s. 1; 1998-70, s. 3; 2016-54, s. 3.)

Editor's Note. - Session Laws 2016-54, s. 5, made the amendments to this section by Session Laws 2016-54, s. 3, applicable to contracts entered into and other actions taken by Regional Transportation Authorities on or after August 1, 2016.

Effect of Amendments. - Session Laws 2016-54, s. 3, effective August 1, 2016, rewrote subsection (4) which formerly read "To employ persons deemed necessary to carry out the functions and duties assigned to them by the Authority and to fix their compensation, within the limit of available funds" and made stylistic changes in subsections (1) through (28). See editor's note for applicability.

§ 160A-639.1. Duties of the chief administrative officer; appointment of clerk.

  1. Duties. - The chief administrative officer employed by the Authority in accordance with G.S. 160A-639 shall be responsible to the Board of Trustees for administering all matters placed in his or her charge by the Board of Trustees and shall have all of the following powers and duties:
    1. To hire, appoint, suspend, or remove any employee of the Authority, provided that nothing in this subdivision shall be construed as superseding or altering any other provision of law governing the suspension or removal of an employee of the Authority.
    2. To direct and supervise all employees of the Authority and the administration of all departments, offices, and agencies of the Authority, subject to the general direction and control of the Board of Trustees and except as otherwise provided by law.
    3. To attend all meetings of the Board of Trustees and recommend any measures he or she deems expedient.
    4. To see that all laws of the State are faithfully executed.
    5. To prepare and submit the annual budget and capital program to the Board of Trustees.
    6. To annually submit to the Board of Trustees and make available to the public a complete report on the finances and administrative activities of the Authority as of the end of the fiscal year.
    7. To make any other reports that the Board of Trustees may require concerning the operations of the Authority.
    8. To perform any other duties that may be required or authorized by the Board of Trustees.
  2. Clerk. - In addition to the duties set forth in subsection (a) of this section, the chief administrative officer shall designate an employee of the Authority as clerk, whose duties shall include all of the following:
    1. Provide notice of meetings of the Board of Trustees.
    2. Keep a journal of the proceedings of the Board of Trustees.
    3. Be the custodian of all Authority records.
    4. Perform any other duties that may be required by law or the Board of Trustees.

History

(2016-54, s. 4.)

Editor's Note. - Session Laws 2016-54, s. 5, made this section effective August 1, 2016, and applicable to contracts entered into and other actions taken by Regional Transportation Authorities on or after that date.

§ 160A-640. Authority of Utilities Commission not affected.

  1. Except as otherwise provided in this Article, nothing in this Article shall be construed to limit or otherwise affect the power or authority of the North Carolina Utilities Commission or the right of appeal to the North Carolina Utilities Commission as provided by law.
  2. The North Carolina Utilities Commission shall not have jurisdiction over rates, fees, charges, routes, and schedules of an Authority for service within its territorial jurisdiction.

History

(1997-393, s. 1.)

§ 160A-641. Fiscal accountability.

An Authority is a public authority subject to the provisions of Chapter 159 of the General Statutes.

History

(1997-393, s. 1.)

§ 160A-642. Funds.

The establishment and operation of an Authority are governmental functions and constitute a public purpose, and the State of North Carolina and any unit of local government may appropriate funds to support the establishment and operation of the Authority. The State of North Carolina and any unit of local government may also dedicate, sell, convey, donate, or lease any of their interests in any property to the Authority. An Authority may apply for grants from the State of North Carolina, or from the United States or any department, agency, or instrumentality thereof. The Department of Transportation may allocate to an Authority any funds appropriated for transportation, or any funds whose use is not restricted by law.

History

(1997-393, s. 1.)

§ 160A-643. Competition.

No equipment of the Authority may be used for charter, tour, or sight-seeing service.

History

(1997-393, s. 1.)

§ 160A-644. Effect on existing franchises and operations.

Creation of the Authority shall not have an effect on any existing franchises granted by any unit of local government; such existing franchises shall continue in full force and effect until legally terminated; further, all ordinances and resolutions of the unit of local government regulating local public transportation systems, bus operations, and taxicabs shall continue in full force and effect now and in the future, unless superseded by regulations of the Authority; such superseding, if any, may occur only on the basis of prior mutual agreement between the Authority and the respective unit of local government.

History

(1997-393, s. 1.)

§ 160A-645. Termination.

The Board of Trustees may terminate the existence of the Authority at any time when it has no outstanding indebtedness. In the event of such termination, all property and assets of the Authority not otherwise encumbered shall automatically become the property of the State of North Carolina, and the State of North Carolina shall succeed to all rights, obligations, and liabilities of the Authority.

History

(1997-393, s. 1.)

§ 160A-646. Controlling provisions.

Insofar as the provisions of this Article are not consistent with the provisions of any other law, public or private, the provisions of this Article shall be controlling.

History

(1997-393, s. 1.)

§ 160A-647. Bonds and notes authorized.

In addition to the powers granted by this Article, the Authority may issue bonds and notes pursuant to the provisions of The State and Local Government Revenue Bond Act, Article 5 of Chapter 159 of the General Statutes, for the purpose of financing public transportation systems or any part thereof and to refund such bonds and notes, whether or not in advance of their maturity or earliest redemption date.

History

(1997-393, s. 1.)

§ 160A-648. Equipment trust certificates.

In addition to the powers here and before granted, the Authority shall have continuing power to purchase equipment, and in connection therewith execute agreements, leases with or without option to purchase, or equipment trust certificates. All money required to be paid by the Authority under the provisions of such agreements, leases with or without option to purchase, and equipment trust certificates shall be payable solely from the fares, fees, rentals, charges, revenues, and earnings of the Authority, monies derived from the sale of any surplus property of the Authority and gifts, grants, and contributions from any source whatever. Payment for such equipment or rentals therefore, may be made in installments; the deferred installments may be evidenced by equipment trust certificates payable solely from the aforesaid revenues or receipts, and title to such equipment may or may not vest in the Authority until the equipment trust certificates are paid.

History

(1997-393, s. 1.)

§ 160A-649. Power of eminent domain.

  1. The Authority shall have continuing power to acquire, by gift, grant, devise, exchange, purchase, lease with or without option to purchase, or any other lawful method, including, but not limited to, the power of eminent domain, the fee or any lesser interest in real or personal property for use by the Authority.
  2. Exercise of the power of eminent domain by the Authority shall be in accordance with Chapter 40A of the General Statutes.

History

(1997-393, s. 1; 2011-284, s. 122.)

Effect of Amendments. - Session Laws 2011-284, s. 122, effective June 24, 2011, deleted "bequest" following "devise" in subsection (a).

§ 160A-650. Tax exemption.

The property of the Authority, both real and personal, its acts, activities, and income shall be exempt from any tax or tax obligation; in the event of any lease of Authority property, or other arrangement which amounts to a leasehold interest, to a private party, this exemption shall not apply to the value of such leasehold interest nor shall it apply to the income of the lessee. Otherwise, however, for the purpose of taxation, when property of the Authority is leased to private parties solely for the purpose of the Authority, the acts and activities of the lessee shall be considered as the acts and activities of the Authority and the exemption. The interest on bonds or obligations issued by the Authority shall be exempt from State taxes.

History

(1997-393, s. 1.)

§ 160A-651. Removal and relocation of utility structures.

  1. The Authority shall have the power to require any public utility, railroad, or other public service corporation owning or operating any installations, structures, equipment, apparatus, appliances, or facilities in, upon, under, over, across or along any ways on which the Authority has the right to own, construct, operate, or maintain its public transportation system, to relocate such installation, structures, equipment, apparatus, appliances, or facilities from their locations, or, in the sole discretion of the affected public utility, railroad, or other public service corporation, to remove such installations, structures, equipment, apparatus, appliances, or facilities from their locations.
  2. If the owner or operator thereof fails or refuses to relocate them, the Authority may proceed to do so.
  3. The Authority shall provide any necessary new locations and necessary real estate interests for such relocation, and for that purpose the power of eminent domain as provided in G.S. 160A-649 may be exercised provided the new locations shall not be in, on or above, a public highway; the Authority may also acquire the necessary new locations by purchase or otherwise.
  4. Any affected public utility, railroad, or other public service corporation shall be compensated for any real estate interest taken in a manner consistent with G.S. 160A-649, subject to the right of the Authority to reduce the compensation due by the value of any property exchanged under this section.
  5. The method and procedures of a particular adjustment to the facilities of a public utility, railroad, or other public service corporation shall be covered by an agreement between the Authority and the affected party or parties.
  6. The Authority shall reimburse the public utility, railroad, or other public service corporation, for the cost of relocations or removals which shall be the entire amount paid or incurred by the utility properly attributable thereto after deducting the cost of any increase in the service capacity of the new installations, structures, equipment, apparatus, appliances, or facilities and any salvage value derived from the old installations, structures, equipment, apparatus or appliances.

History

(1997-393, s. 1.)

§§ 160A-652 through 160A-659: Reserved for future codification purposes.

ARTICLE 28. Regional Natural Gas District.

Sec.

§ 160A-660. Title.

This Article is the "Regional Natural Gas District Act" and may be cited by that name.

History

(1997-426, s. 2.)

§ 160A-661. Purpose; definitions.

  1. The purpose of a district created under this Article is to enhance the quality of life in its territorial jurisdiction by promoting the development of natural gas systems to enhance the economic development of the area.
  2. The following definitions apply in this Article:
    1. Board of Trustees. - The governing board of the district in which the general legislative powers of the district are vested.
    2. District. - A regional natural gas district.
    3. Natural gas system. - A gas production, storage, transmission and distribution system, or any part or parts thereof.
    4. Regional natural gas district. - A public body and body politic and corporate of the State of North Carolina organized in accordance with the provisions of this Article exercising public and essential governmental functions to provide for the preservation and promotion of the public welfare for the purposes, with the powers, and subject to the restrictions set forth in this Article.
    5. Unit of local government. - Any county, city, town, or municipality of this State, and any other political subdivision, public corporation, or district in this State, that is or may be authorized by law to acquire, establish, construct, enlarge, improve, maintain, own, or operate natural gas systems.
    6. Unit of local government's chief administrative official. - The county manager, city manager, town manager, or other person, by whatever title known, in whom the responsibility for the unit of local government's administrative duties is vested.

History

(1997-426, s. 2.)

§ 160A-662. Territorial jurisdiction and service area of district.

  1. A district may be created for one or more entire counties that are totally unserved with natural gas and in which a specific natural gas project has not been approved by the Utilities Commission at the time of creation of the district. A letter from the Utilities Commission to this effect shall conclusively establish that the area is totally unserved and that a project has not been approved. This area is the territorial jurisdiction and the service area of the district.
  2. The creation of a district does not confer on the district the exclusive right to provide natural gas service in that territorial jurisdiction.

History

(1997-426, s. 2.)

§ 160A-663. Creation of district.

  1. The boards of commissioners of any one or more counties within an area for which a district may be created as provided by G.S. 160A-662, and the governing body of any city geographically located within one or more of these counties and that chooses to join in the organization of a district, may by resolution signify their determination to organize a district under the provisions of this Article. Each of these resolutions shall be adopted after a public hearing thereon, notice of which hearing shall be given by publication at least once, not less than 10 days prior to the date fixed for the hearing, in a newspaper having a general circulation in the county. The notice shall contain a brief statement of the substance of the proposed resolution, shall set forth the proposed articles of incorporation of the district, and shall state the time and place of the public hearing. A copy of the notice shall be mailed not later than the first day of newspaper publication to the business office of any public utility that holds a franchise from the North Carolina Utilities Commission to serve any part of the proposed district with natural gas service. No county or city shall be required to make any other publication of the resolution under the provisions of any other law.
  2. Each resolution shall include articles of incorporation which shall set forth all of the following:
    1. The name of the district.
    2. The composition of the board of trustees, terms of office, and the manner of making appointments and filling vacancies.
    3. A statement that the district is organized under this Article.
    4. The names of the organizing counties and cities.
    5. Provision for the distribution of assets in the event the district is terminated.
  3. A certified copy of each of the resolutions signifying the determination to organize a district under the provisions of this Article shall be filed with the Secretary of State, together with proof of publication and mailing of the notice of hearing on each of the resolutions. If the Secretary of State finds that the resolutions, including the articles of incorporation, conform to the provisions of this Article and that the notices of hearing were properly published and mailed, the Secretary of State shall file the resolutions and proofs of publication and mailing, shall issue a certificate of incorporation under the seal of the State, and shall record the certificate in an appropriate book of record. The issuance of this certificate of incorporation by the Secretary of State shall constitute the district a public body and body politic and corporate of the State of North Carolina. The certificate of incorporation shall be conclusive evidence of the fact that the district has been duly created and established under this Article.
  4. When the district has been duly organized and its officers elected, the secretary of the district shall certify to the Secretary of State the names and addresses of the officers, the name and address of the registered agent, and the address of the principal office of the district. The district shall be subject to the provisions of Article 5 of Chapter 55A of the General Statutes.

History

(1997-426, s. 2.)

§ 160A-664. Membership; officers; compensation.

  1. The governing body of a district is the Board of Trustees. The Board of Trustees shall consist of members as provided in the articles of incorporation.
  2. Service on the Board of Trustees may be in addition to any other office which a person is entitled to hold. Each voting member of the Board of Trustees may hold elective public office as defined by G.S. 128-1.1(d).
  3. Members of the Board of Trustees shall reside within the territorial jurisdiction of the district as defined by G.S. 160A-662.
  4. The Board of Trustees shall annually elect from its membership a Chair and a Vice-Chair and shall annually elect a Secretary and a Treasurer.
  5. Members of the Board of Trustees shall receive a sum not to exceed fifty dollars ($50.00) as compensation for attendance at each duly conducted meeting of the district.

History

(1997-426, s. 2.)

§ 160A-665. Quorum.

A majority of the members of the Board of Trustees shall constitute a quorum for the transaction of business.

History

(1997-426, s. 2.)

§ 160A-666. Advisory committees.

The Board of Trustees may provide for the selection of any advisory committees that it finds appropriate, which may or may not include members of the Board of Trustees.

History

(1997-426, s. 2.)

§ 160A-667. General powers of the district.

The general powers of the district include all of the following:

  1. To sue and be sued.
  2. To have a seal.
  3. To make rules not inconsistent with this Article, for its organization and internal management.
  4. To employ persons deemed necessary to carry out the functions and duties assigned to them by the district and to fix their compensation, within the limit of available funds.
  5. With the approval of the unit of local government's chief administrative official, to use officers, employees, agents, and facilities of the unit of local government for such purposes and upon such terms as may be mutually agreeable.
  6. To retain and employ counsel, auditors, engineers, and private consultants on an annual salary, contract basis, or otherwise for rendering professional or technical services and advice.
  7. To acquire, lease as lessee with or without option to purchase, hold, own, and use any franchise, property, real or personal, tangible or intangible, or any interest therein and to sell, lease as lessor with or without option to purchase, transfer (or dispose thereof) whenever the property is no longer required for purposes of the district, or exchange it for other property or rights which are useful for the district's purposes. Except as provided in any covenant or debt instrument designed to protect the creditor, if any loans or grants by the Department of Commerce have not been repaid, all or a substantial part of an operating natural gas district may not be disposed of without the approval of the Department of Commerce. If the sale is approved by the Department of Commerce, the district shall repay the State the lesser of the amount of any capital grant made by the State or one-half of the amount of the proceeds.
  8. To acquire by gift, purchase, lease as lessee with or without option to purchase or otherwise to construct, improve, maintain, repair, operate, or administer any component parts of a natural gas system. The district also may contract for the maintenance, operation, or administration thereof or to lease as lessor the same for maintenance, operation, or administration by private parties.
  9. To make or enter into contracts, agreements, deeds, leases with or without option to purchase, conveyances, or other instruments, including contracts and agreements with the United States, the State of North Carolina, and units of local government.
  10. To develop and make data, plans, information, surveys, and studies of natural gas systems within the territorial jurisdiction of the district and to prepare and make recommendations in regard thereto.
  11. To enter in a reasonable manner lands, waters, or premises for the purpose of making surveys, soundings, drillings, and examinations. This entry shall not be deemed a trespass except that the district shall be liable for any actual and consequential damages resulting from the entry.
  12. To develop and carry out demonstration projects.
  13. To make, enter into, and perform contracts with private parties and natural gas companies with respect to the management and operation of natural gas systems.
  14. To make, enter into, and perform contracts with any public utility, railroad, or transportation company for the joint use of property or rights.
  15. To own, lease, and operate natural gas systems. These systems may also include the purchase or lease, or both, of natural gas fields and natural gas reserves within the State, and the purchase of natural gas supplies within or without the State. A district may operate that part of a gas system involving the purchase or lease, or both, of natural gas fields, natural gas reserves, and natural gas supplies, in an operating agreement, partnership or joint venture arrangement with natural gas utilities and private enterprise. The district may acquire, purchase, construct, receive, own, operate, maintain, enlarge, and improve natural gas systems and transport and sell at wholesale all or any part of its gas supply.
  16. To purchase or finance real or personal property under G.S. 160A-20.
  17. To obtain grants, loans, and assistance from the United States, the State of North Carolina, any public body, or any private source.
  18. To enter into and perform contracts and agreements with other natural gas districts, regional natural gas districts, or units of local government pursuant to the provisions of Part 1 of Article 20 of Chapter 160A of the General Statutes and to enter into contracts and agreements with private natural gas companies, but this subdivision does not authorize the operation of, or contracting for the operation of, service of a natural gas system outside the service area of the district. A district may provide service or contract for the providing of service to a city geographically located within a district, notwithstanding that the city did not join the district pursuant to G.S. 160A-663(a) or G.S. 160A-672.
  19. Except as restricted by covenants in bonds, notes, security interests, or trust certificates, to set in its sole discretion rates, fees, and charges for use of its natural gas system in accordance with G.S. 160A-676.
  20. To do all related things necessary to carry out its purpose and to exercise the powers granted to the district.
  21. To issue revenue bonds and notes and to incur other obligations as authorized by this Article.

History

(1997-426, s. 2.)

§ 160A-668. Fiscal accountability.

A district is a public authority subject to the provisions of Chapter 159 of the General Statutes.

History

(1997-426, s. 2.)

§ 160A-669. Funds.

The establishment and operation of a district is a public purpose, and the State of North Carolina and any unit of local government may appropriate funds to support the establishment and operation of the district. The State of North Carolina and any unit of local government may also dedicate, sell, convey, donate, or lease any of their interests in any property to the district. A district may apply for grants from the State of North Carolina, or from the United States or any department, agency, or instrumentality thereof. The Department of Commerce may allocate to a district any funds appropriated for natural gas.

History

(1997-426, s. 2.)

§ 160A-670. Effect on existing franchises and operations.

Creation of the district does not affect any existing franchises granted by any unit of local government. Those existing franchises shall continue in full force and effect until legally terminated, and all ordinances and resolutions of the unit of local government regulating local natural gas systems shall continue in full force and effect unless superseded by rules of the district. This superseding, if any, may occur only on the basis of prior mutual agreement between the district and the respective unit of local government.

History

(1997-426, s. 2.)

§ 160A-671. Termination of district.

The Board of Trustees, after providing for the continued availability of natural gas service to its customers, if any, may terminate the existence of the district at any time when it has no outstanding indebtedness. The Board of Trustees shall file notification of the termination with the Secretary of State.

History

(1997-426, s. 2.)

§ 160A-672. Joinder of county or city.

  1. Whenever a district has been organized under the provisions of this Article, a county as defined in G.S. 160A-662(a) or a city within that county, or a city that did not join in the organization of a district but is geographically located within the district may, with the consent of the district as evidenced by a resolution adopted by a majority of the members of the Board of Trustees of the district, join the district.
  2. A county or city desiring to join an existing district shall signify its desire by resolution adopted after a public hearing thereon, notice of which hearing shall be given in the manner and at the time provided in G.S. 160A-663. Such notice shall contain a brief statement of the substance of said resolution and shall state the time and place of the public hearing.
  3. A certified copy of each resolution signifying the desire of a county or city to join an existing district, together with proof of publication of the notice of hearing on the resolution, and a certified copy of the resolution of the Board of Trustees of the district consenting to the joining shall be filed with the Secretary of State. If the Secretary of State finds that the resolutions conform to the provisions of this Article and that the notices of hearing were properly published, the Secretary of State shall file such resolutions and proofs of publication in the office of the Secretary of State, shall issue a certificate of joinder, and shall record the certificate in the appropriate book of record. The issuance of the certificate shall be conclusive evidence of the joinder of the county or city to the district.

History

(1997-426, s. 2.)

§ 160A-673. Bonds and notes authorized.

The district may issue revenue bonds and revenue bond anticipation notes pursuant to the provisions of the State and Local Government Revenue Bond Act, Article 5 of Chapter 159 of the General Statutes, and Article 9 of Chapter 159 for the purposes provided in this Article. If and to the extent any provisions of Articles 5 and 9 of Chapter 159 are inconsistent with the provisions of this Article, the provisions of this Article shall be controlling. A district may proceed with the issuance of bonds and notes under Articles 5 and 9 of Chapter 159 notwithstanding that, to the extent of any inconsistency only, the district complies with the provisions of this Article and not the provisions of Articles 5 and 9 of Chapter 159.

History

(1997-426, s. 2.)

§ 160A-674. Acquisition, power of eminent domain.

  1. The district shall have continuing power to acquire, by gift, grant, devise, exchange, purchase, lease with or without option to purchase, or any other lawful method including, but not limited to, the power of eminent domain, the fee or any lesser interest in real or personal property for use by the district.
  2. Exercise of the power of eminent domain by the district shall be as a private condemnor in accordance with Chapter 40A of the General Statutes. Notwithstanding Chapter 40A of the General Statutes, before final judgment may be entered in any action of condemnation initiated by the district, the district shall furnish proof that the board of commissioners of the county where the land is located has consented by resolution or ordinance to the taking.

History

(1997-426, s. 2; 2011-284, s. 123.)

Effect of Amendments. - Session Laws 2011-284, s. 123, effective June 24, 2011, deleted "bequest" following "devise" in subsection (a).

§ 160A-675. Tax exemption.

A district, and its property, bonds and notes, and income, are exempt from property taxes and income taxes to the same extent as if it were a city. A district is subject to gross receipts tax under G.S. 105-116.

History

(1997-426, s. 2.)

Editor's Note. - Section 105-116, referred to in this section, was repealed by Session Laws 2013-316, s. 4.1(a), effective July 1, 2014.

§ 160A-676. Authority to fix and enforce rates.

  1. A district may establish and revise from time to time schedules of rents, rates, fees, charges, and penalties made applicable throughout the district for the gas services. Schedules of rents, rates, fees, charges, or penalties may vary according to classes of service. Before it establishes or revises a schedule of rents, rates, fees, charges, or penalties, the district Board of Trustees shall hold a public hearing on the matter. A notice of the hearing shall be given at least once in a newspaper having general circulation in the area, not less than seven days before the public hearing.
  2. A district may collect delinquent accounts by any remedy provided by law for collecting and enforcing private debts. A district may also discontinue service to any customer whose account remains delinquent for more than 30 days. When service is discontinued for delinquency, it shall be unlawful for any person other than a duly authorized agent or employee of the district to do any act that results in a resumption of services. If a delinquent customer is not the owner of the premises to which the services are delivered, the payment of the delinquent account may not be required before providing services at the request of a new and different tenant or occupant of the premises, but this restriction shall not apply when the premises are occupied by two or more tenants whose services are measured by the same meter.
  3. Rents, rates, fees, charges, and penalties for services shall be legal obligations of the person contracting for them and shall in no case be a lien upon the property or premises served.
  4. Rents, rates, fees, charges, and penalties for services shall be legal obligations of the owner of the premises served when the property or premises are leased or rented to more than one tenant and services rendered to more than one tenant are measured by the same meter.

History

(1997-426, s. 2.)

§§ 160A-677 through 160A-679: Reserved for future codification purposes.

ARTICLE 29. Ferry Transportation Authority.

Sec.

§ 160A-680. Title and purpose.

This Article shall be known and may be cited as the "Ferry Transportation Authority Act." The purpose of this Article is to authorize creation of an Authority to provide reliable and safe public ferry transportation services in its service area.

History

(2017-120, s. 1.)

Editor's Note. - Session Laws 2017-120, s. 7, made this Article effective July 18, 2017.

Session Laws 2017-120, s. 6(a)-(c), provides: "(a) If (i) a Ferry Transportation Authority is created pursuant to Article 29 of Chapter 160A of the General Statutes, as enacted by Section 1 of this act, and (ii) an existing, privately owned ferry transportation service is currently operating a ferry transportation system in the service area of the Authority, as described in G.S. 160A-682, as enacted by Section 1 of this act, pursuant to a Certificate of Public Convenience and Necessity issued by the North Carolina Utilities Commission in effect as of the effective date of this act, then the assets used and useful for the ferry transportation system, as defined in G.S. 160A-681, as enacted by Section 1 of this act, and owned by the private ferry transportation service or its affiliates shall be acquired, by purchase, gift, lease, or otherwise, by that Authority at or below their appraised value, such purchase to be financed by bonds or notes issued by the Authority or other financing mechanisms permitted under Article 29 of Chapter 160A of the General Statutes, as enacted by Section 1 of this act. Upon the purchase of these assets by that Authority, the Certificate of Public Convenience and Necessity issued by the North Carolina Utilities Commission to such privately owned ferry transportation service shall be terminated and all franchise rights to operate a ferry transportation system utilizing these assets will be transferred at that time to the Authority without further action by the North Carolina Utilities Commission.

"(b) If (i) a Ferry Transportation Authority is created pursuant to Article 29 of Chapter 160A of the General Statutes, as enacted by Section 1 of this act, (ii) an existing, privately owned ferry transportation service is currently operating a ferry transportation system in the service area of the Authority, as described in G.S. 160A-682, as enacted by Section 1 of this act, and (iii) the Ferry Transportation Authority acquires the assets used and useful for the ferry transportation system, as defined in G.S. 160A-681, as enacted by Section 1 of this act, from the privately owned ferry transportation service, then the initial rates, fees, charges, routes, and schedules of the Ferry Transportation Authority must be the same rates, fees, charges, routes, and schedules in effect for such existing, privately owned ferry transportation service as of the date of its acquisition by the Authority.

"(c) This section becomes effective upon the issuance of a certificate of incorporation by the Secretary of State for a Ferry Transportation Authority created pursuant to Article 29 of Chapter 160A of the General Statutes, as enacted by Section 1 of this act."


§ 160A-681. Definitions.

The following definitions apply in this Article:

  1. Authority. - The Ferry Transportation Authority.
  2. Board of Trustees. - The governing board of the Authority.
  3. Ferry Transportation Authority. - A public body corporate and politic organized in accordance with the provisions of this Article for the purposes, with the powers, and subject to the restrictions hereinafter set forth.
  4. Ferry transportation service. - Transportation of passengers or freight by any means of conveyance, including a ferry, barge, vehicle, or tram.
  5. Ferry transportation system. - A combination of real and personal property, structures, improvements, buildings, equipment, maritime vessels, vehicles, vehicle parking, trams, shuttle buses, docks, terminals, and other facilities necessary for the maintenance and operation of a ferry transportation service. The term does not include public streets, roads, or highways.
  6. Unit of local government. - A county, city, town, or municipality of this State, and any other political subdivision, public corporation, authority, or district in this State, that is or may be authorized by law to acquire, establish, construct, enlarge, improve, maintain, own, or operate a ferry transportation system.
  7. Unit of local government's chief administrative official. - The county manager, city manager, town manager, or other person in whom the responsibility for the unit of local government's administrative duties is vested.
  8. Vessel. - Watercraft or other artificial contrivance used, or capable of being used, as a means of transportation of passengers or freight on water.

History

(2017-120, s. 1.)

Editor's Note. - Session Laws 2017-120, s. 7, made this section effective July 18, 2017.

§ 160A-682. Service area of Authority.

The boundaries of the service area of the Authority shall be determined by the Board of Trustees, consistent with the purpose of the Authority. The service area of an authority created pursuant to this Article may include, but cannot exceed, all of the following:

  1. The area of a tidal river, and adjoining estuaries, in the vicinity of a municipality that is only accessible by vessel.
  2. Terminals, parking, maintenance facilities, facilities utilized for tram and bus service, and other related facilities in or in the vicinity of the same tidal river and a municipality that is only accessible by vessel.
  3. Terminals, parking, maintenance facilities, facilities utilized for tram and bus service, and other related facilities in or in the vicinity of the same tidal river and a municipality in which the mainland terminal used to provide ferry transportation service is located.

History

(2017-120, s. 1.)

Editor's Note. - Session Laws 2017-120, s. 7, made this section effective July 18, 2017.

§ 160A-683. Creation of Authority.

  1. Resolution of Creation. - An Authority may be organized under the provisions of this Article upon the adoption of a resolution to create such an Authority by each of the following:
    1. The elected board of a municipality only accessible by vessel.
    2. The elected board of a municipality where any mainland terminal of the Authority is located.
    3. The board of commissioners of the county where the Authority is located.
  2. Public Hearing. - A resolution to form an Authority under this Article shall be adopted after a public hearing. Notice of the public hearing must be given at least once, not less than 10 days prior to the date fixed for the hearing, in a newspaper having a general circulation in the county. The notice must contain a brief statement of the substance of the proposed resolution, the proposed articles of incorporation of the Authority, and the time and place of the public hearing.
  3. Articles of Incorporation. - A resolution to form an Authority under this Article must include articles of incorporation that set forth all of the following:
    1. The name of the Authority.
    2. A statement that the Authority is organized under this Article.
    3. The name of each organizing entity.
  4. Certificate of Incorporation. - A certified copy of each resolution organizing an Authority under the provisions of this Article shall be filed with the Secretary of State, together with proof of publication of the notice of hearing. If the Secretary of State finds that each resolution, including the articles of incorporation, conform to the provisions of this Article and that the notice of hearing was properly published, then the Secretary must issue a certificate of incorporation under the seal of the State and record the same in an appropriate book of record. The issuance of the certificate of incorporation by the Secretary of State shall constitute the Authority, a public body and body politic and corporate of the State of North Carolina. The certificate of incorporation is conclusive evidence of the fact that the Authority has been duly created and established under the provisions of this Article.
  5. Officers. - When the Authority has been duly organized and its officers elected, the secretary of the Authority shall certify to the Secretary of State the names and addresses of the officers as well as the address of the principal office of the Authority.

History

(2017-120, s. 1.)

Editor's Note. - Session Laws 2017-120, s. 7, made this section effective July 18, 2017.

§ 160A-684. Board of Trustees.

  1. Members. - The Board of Trustees consists of 11 members. The Mayor and Mayor Pro Tempore of the municipality only accessible by vessel serve as ex officio voting members. The remaining nine members serve staggered three-year terms and are appointed as provided in subsection (b) of this section. Members of the Board of Trustees shall receive the sum of fifty dollars ($50.00) as compensation for attendance at each duly conducted meeting of the Authority.
  2. Appointment. - Nine members of the Board of Trustees are appointed as provided in this subsection. The members must be residents of this State at the time of appointment and must maintain their residency during the duration of their term. Appointed members serve at the pleasure of the appointing authority. A vacancy in a term prior to the expiration of the term must be filled by the appropriate appointing authority. The members are appointed as follows:
    1. One member by the Governor.
    2. Two members by the General Assembly under G.S. 120-121, one of whom is appointed upon the recommendation of the President Pro Tempore of the Senate and one of whom is appointed upon the recommendation of the Speaker of the House of Representatives.
    3. Three members appointed by the Secretary of the Department of Transportation, at least one of whom must be a resident of the service area of the Authority, as determined under G.S. 160A-682, and at least one of whom must be a member of the Board of Transportation.
    4. One member by the board of commissioners of the county where the Authority is located, who must be a resident of the county but not a resident of the municipality only accessible by vessel.
    5. One member by the elected board of a municipality where the mainland terminal of the Authority is located, who must be a resident of that municipality.
    6. One member appointed by the elected board of a municipality only accessible by vessel, who must be a resident of the municipality only accessible by vessel.
  3. Terms. - A term begins on July 1 of the year of appointment and ends on June 30 of the third year. A member appointed under subsection (b) of this section may not serve more than two consecutive terms on the Board of Trustees. In calculating the number of terms served, a partial term that is less than 18 months in length will not be included.
  4. Meetings. - The Board of Trustees must meet at least once every three months. A majority of the members of the Board of Trustees constitute a quorum for the transaction of business. The Board of Trustees must annually elect from its membership a chair and vice-chair. The Board of Trustees may elect from its membership or appoint a nonmember to serve as secretary or treasurer.
  5. Ethics. - Members of the Board of Trustees are subject to the provisions of G.S. 136-13, 136-13.1, and 136-14.
  6. Reports. - The Board of Trustees must submit an annual report of its activities, holdings, and finances, including an audit of its accounts by a certified public accountant, to the Secretary of the Department of Transportation and to the Joint Legislative Commission on Governmental Operations. The report must be submitted by October 1 of each year.

History

(2017-120, s. 1.)

Editor's Note. - Session Laws 2017-120, s. 5(a), (b), provides: "(a) To achieve the staggered terms for the nine members of the Board of Trustees in accordance with G.S. 160A-684(b), as enacted by Section 1 of this act, and notwithstanding the term of office provisions in G.S. 160A-684(c), as enacted by Section 1 of this act, the terms of the individuals serving on the initial Board of Trustees will be as provided below:

"(1) The appointee of the Governor shall serve for a one-year term, expiring June 30 in the year following the creation of the Authority.

"(2) The appointee of the President Pro Tempore of the Senate shall serve for a one-year term, expiring June 30 in the year following the creation of the Authority.

"(3) The appointee of the Speaker of the House of Representatives shall serve for a one-year term, expiring June 30 in the year following the creation of the Authority.

"(4) The appointees of the Secretary of the Department of Transportation shall each serve for a two-year term, expiring June 30 in the second year following the creation of the Authority.

"(5) The appointee of the board of commissioners described in G.S. 160A-684(b)(4), as enacted by Section 1 of this act, shall serve for a three-year term, expiring June 30 in the third year following the creation of the Authority.

"(6) The appointee of the elected board of the municipality described in G.S. 160A-684(b)(5), as enacted by Section 1 of this act, shall serve for a three-year term, expiring June 30 in the third year following the creation of the Authority.

"(7) The appointee of the elected board of the municipality described in G.S. 160A-684(b)(6), as enacted by Section 1 of this act, shall serve for a three-year term, expiring June 30 in the third year following the creation of the Authority.

"(b) This section becomes effective upon the issuance of a certificate of incorporation by the Secretary of State for a Ferry Transportation Authority created under Article 29 of Chapter 160A of the General Statutes, as enacted by Section 1 of this act."

Session Laws 2017-120, s. 7, made this section effective July 18, 2017.

§ 160A-685. Ferry Transportation Authority.

  1. Financial Accountability. - An Authority created under this Article is a public authority subject to the provisions of Chapter 159 of the General Statutes.
  2. Funds. - The establishment and operation of an Authority are governmental functions and constitute a public purpose. The State or any unit of local government may, but is not obligated to, appropriate funds to support the establishment and operation of the Authority. The State or any unit of local government may also dedicate, sell, convey, donate, or lease any of their interests in any property to the Authority. An Authority may apply for grants or any other type of financing from the State, the United States, or any department, agency, or instrumentality thereof.
  3. General Powers. - The general powers of the Authority include any one or more of the following:
    1. To sue and be sued.
    2. To have a seal.
    3. To make rules and regulations, not inconsistent with this Article, for its organization and internal management.
    4. To employ persons deemed necessary to carry out the functions and duties assigned to them by the Authority and to fix their compensation within the limit of available funds.
    5. With the approval of the unit of local government's chief administrative official, to use officers, employees, agents, and facilities of the unit of local government for such purposes and upon such terms as may be mutually agreeable.
    6. To retain and employ counsel, auditors, engineers, and private consultants on an annual salary, contract basis, or otherwise for rendering professional or technical services and advice.
    7. To acquire, lease as lessee with or without option to purchase, hold, own, and use any property, real or personal, tangible or intangible, or any interest therein, and to sell, lease as lessor with or without option to purchase, transfer, or dispose thereof, whenever the same is no longer required for purposes of the Authority, or exchange same for other property or rights that are useful for the Authority's purposes, including, but not necessarily limited to, barge service, marine maintenance, ferry terminals, and parking facilities.
    8. To acquire by gift, purchase, lease as lessee with or without option to purchase or otherwise to construct, improve, maintain, repair, operate, or administer any component parts of a ferry transportation system or to contract for the maintenance, operation, or administration thereof, or to lease as lessor the same for maintenance, operation, or administration by private parties, including, but not necessarily limited to, barge service, marine maintenance, ferry terminals, and parking facilities.
    9. To accept gifts or grants of money, real or personal property, or services from a person, the State, the federal government, or a unit of local government.
    10. To make or enter into contracts, agreements, deeds, leases with or without option to purchase, conveyances or other instruments, including contracts and agreements with the United States, the State of North Carolina, and units of local government.
    11. To purchase or finance real or personal property in the manner provided for cities and counties under G.S. 160A-20.
    12. To surrender to the State of North Carolina, upon the approval of the Secretary of the Department of Administration, any property no longer required by the Authority.
    13. To develop and make data, plans, information, surveys, and studies within the service area of the Authority and to prepare and make recommendations in regard thereto.
    14. To enter in a reasonable manner lands, waters, or premises for the purpose of making surveys, soundings, drillings, and examinations whereby such entry shall not be deemed a trespass except that the Authority shall be liable for any actual and consequential damages resulting from such entries.
    15. To make, enter into, and perform contracts with private parties and transportation companies with respect to the management and operation of ferry transportation services.
    16. To make, enter into, and perform contracts with other entities for the joint use of property or rights, for the establishment of connecting routes, joint fares, or transfer of passengers.
    17. To make, enter into, and perform agreements with governmental entities for payments to the Authority for the transportation of persons for whom the governmental entities desire transportation.
    18. With the consent of the unit of local government that would otherwise have jurisdiction to exercise the powers enumerated in this subdivision, to issue certificates of public convenience and necessity, and to grant franchises and enter into franchise agreements, and in all respects to regulate the operation of ferries, buses, trams, taxicabs, and other methods of public passenger transportation that originate and terminate within the service area of the Authority as fully as the unit of local government is now or hereafter empowered to do within the jurisdiction of the unit of local government.
    19. To operate a ferry transportation system and to enter into and perform contracts to provide and operate ferry transportation services and facilities, and to own or lease property, facilities, and equipment necessary or convenient therefor, and to rent, lease, or otherwise sell the right to do so to any person, public or private; further, to obtain grants, loans, and assistance from the United States, the State of North Carolina, any public body, or any private source whatsoever, but may not operate or contract for the operation of a ferry transportation system outside the service area of the Authority.
    20. To enter into and perform contracts and agreements with other public transportation authorities, regional public transportation authorities, or units of local government pursuant to the provisions of Part 1 of Article 20 of this Chapter; further, to enter into contracts and agreements with private transportation companies, but this subdivision does not authorize the operation of, or contracting for the operation of, service of a ferry transportation system outside the service area of the Authority.
    21. To operate public transportation systems extending service into any political subdivision of the State of North Carolina, unless a particular unit of local government operating its own public transportation system or franchising the operation of a public transportation system by majority vote of its governing board shall deny consent, but such service may not extend more than 10 miles outside of the service area of the Authority.
    22. To do all things necessary or convenient to carry out its purpose and to exercise the powers granted to the Authority.
    23. To facilitate the coordination of transportation plans in the service area.
    24. To maintain databases for the projection of future travel demands in the service area.
    25. To provide other transportation related services within the service area of the Authority, as determined by the Board of Trustees in its discretion.
    26. To contract for, or to provide and maintain, with respect to the facilities and property owned, leased, operated, or under the control of the Authority, and within the service area thereof, a security force to protect persons and property, dispense unlawful or dangerous assemblages and assemblages that obstruct full and free passage, control pedestrian and vehicular traffic, and otherwise preserve and protect the public peace, health, and safety. A member of the security force shall be a peace officer and, as such, shall have authority equivalent to the authority of a police officer of the city or county in which the member is discharging those duties.
    27. Except as restricted by covenants in bonds, notes, or equipment trust certificates, to set in its sole discretion rates, fees, and charges for use of its ferry transportation system.
    28. To issue bonds and bond anticipation notes under the Local Government Revenue Bond Act, Articles 5 and 9 of Chapter 159 of the General Statutes, or as otherwise provided by law, for the purpose of acquiring, constructing, improving, maintaining, operating, or financing a ferry transportation system or any part thereof and to refund, whether or not in advance of maturity or the earliest redemption date, any such bonds or notes. As provided in G.S. 159-94, the principal of and interest on the bond is payable solely from the revenues pledged to its payment and neither the State nor the municipality is obligated to pay the principal or interest, except from such revenues.

History

(2017-120, s. 1.)

Editor's Note. - Session Laws 2017-120, s. 7, made this section effective July 18, 2017.

§ 160A-686. Rates, fees, charges, routes, and schedules.

  1. Notice. - The Board of Trustees must give at least 30 days' public notice of any change to rates, fees, charges, routes, or schedules, except as necessitated by an emergency situation. The Board of Trustees must report any change to rates, fees, charges, routes, or schedules to the Secretary of the Department of Transportation and to the Joint Legislative Commission on Governmental Operations.
  2. Regulation. - Notwithstanding G.S. 62-3(23)a.3. and 4., the North Carolina Utilities Commission shall not have jurisdiction over the provision of ferry transportation service within the Authority's service area.

History

(2017-120, s. 1.)

Editor's Note. - Session Laws 2017-120, s. 7, made this section effective July 18, 2017.

§ 160A-687. Competition.

  1. Prohibition. - No equipment of the Authority may be used for charter, tour, or sight-seeing service, except as provided by this section.
  2. Charter Services. - Equipment of the Authority may be used for occasional charter service events, if all of the following conditions are met:
    1. The use of the equipment for the charter service is approved in writing by the Board of Trustees.
    2. The revenues received by the Authority from the provision of the charter service exceed fully allocated expenses.
    3. The charter service does not adversely affect regularly scheduled ferry transportation services provided by the Authority.

History

(2017-120, s. 1.)

Editor's Note. - Session Laws 2017-120, s. 7, made this section effective July 18, 2017.

§ 160A-688. Power of eminent domain.

The Authority shall have continuing power to acquire, by gift, grant, devise, exchange, purchase, lease with or without option to purchase, or any other lawful method, including the power of eminent domain, the fee or any lesser interest in real or personal property for use by the Authority. Exercise of the power of eminent domain by the Authority shall be in accordance with Chapter 40A of the General Statutes.

History

(2017-120, s. 1.)

Editor's Note. - Session Laws 2017-120, s. 7, made this section effective July 18, 2017.

§ 160A-689. Termination.

The Board of Trustees may terminate the existence of the Authority at any time when it has no outstanding indebtedness. In the event of such termination, all property and assets of the Authority not otherwise encumbered shall automatically become the property of the State of North Carolina, and the State of North Carolina shall succeed to all rights, obligations, and liabilities of the Authority.

History

(2017-120, s. 1.)

Editor's Note. - Session Laws 2017-120, s. 7, made this section effective July 18, 2017.

§§ 160A-690 through 160A-699: Reserved for future codification purposes.

ARTICLE 30. Public Education.

Sec.

§ 160A-700. Funding for public education.

  1. Authority. - A city may use property tax revenues authorized under G.S. 160A-209(c)(26b) and other unrestricted revenues to supplement funding for elementary and secondary public education that benefits the residents of the city. Cities may direct or restrict the use of funds appropriated for specific purposes, functions, projects, programs, or objects, as provided in this section.
  2. Purposes. - A city may appropriate funds under this section as follows:
    1. For a public school located inside the city limits, for capital, for current operating expenses, or for other specific uses directed by the city. Funds appropriated by cities in accordance with this subdivision may be used to enter into operational and financing leases for real property or mobile classroom units for use as school facilities for public schools and may be used for payments on loans made to public schools for facilities, equipment, or operations. However, municipal appropriations shall not be used to obtain any other interest in real property or mobile classroom units. Every contract or lease into which a public school enters involving a municipal appropriation pursuant to this section shall include the following sentence: "No indebtedness of any kind incurred or obligation created by the public school shall constitute an indebtedness or obligation of the city, and no indebtedness or obligation of the public school shall involve or be secured by the faith, credit, or taxing power of the city.
    2. For a public school located outside the city limits, on a per pupil basis for students attending that school who are residents of the city for current operating expenses or other specific uses directed by the city.
  3. Procedure. - If a public school is under the control of a local board of education, the appropriation for that school shall be made to the local board of education of the local school administrative unit.
  4. For the purposes of this section, "public school" means:
    1. A school under the control of a local board of education.
    2. An innovative school operated under Article 7A of Chapter 115C of the General Statutes.
    3. A laboratory school under the control of a constituent institution of The University of North Carolina.
    4. A charter school created under Article 14A of Chapter 115C of the General Statutes.
    5. A regional school created under Part 10 of Article 16 of Chapter 115C of the General Statutes.

History

(2018-5, s. 38.8(b); 2018-97, s. 11.1.)

Editor's Note. - Session Laws 2018-5, s. 38.8(i), made this Article effective July 1, 2018, and applicable to revenues derived from taxes levied on or after that date.

Session Laws 2018-5, s. 38.8, enacted this section as G.S.160A-690; it was recodified as G.S.160A-700 at the direction of the Revisor of Statutes.

Session Laws 2018-5, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2018.'"

Session Laws 2018-5, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2018-2019 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2018-2019 fiscal year."

Session Laws 2018-5, s. 39.7, is a severability clause.

Effect of Amendments. - Session Laws 2018-97, s. 11.1, effective July 1, 2018, inserted "for capital," following "the city limits," in subdivision (b)(1), and made a minor stylistic change.

ARTICLE 31. Tourism Development Authorities.

Sec.

§ 160A-800. (Repealed effective January 1, 2022 - see note) Definitions.

The following definitions apply in this Article:

  1. Economic Aid Act. - The Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act (Title III) of the Consolidated Appropriations Act, 2021, P.L. 116-260.
  2. PPP loan. - A federal loan enacted under sections 1102 and 1106 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, P.L. 116-136, and as amended by the Economic Aid Act.
  3. Tourism development authority. - A public authority under the Local Government Budget and Fiscal Control Act established by resolution adopted by the council of a municipality to receive and expend the net proceeds of an occupancy tax.

History

(2021-3, s. 2.19(b).)

Article has a Delayed Repeal Date. - For repeal of this Article, see G.S. 160A-801(e).


§ 160A-801. (Repealed effective January 1, 2022 - see note) Borrowing authority for PPP loans.

  1. Authority. - A tourism development authority may enter into a PPP loan. A tourism development authority shall comply with all the requirements and limitations of the PPP loan program and shall apply for forgiveness of the loan in a timely manner.
  2. No Power to Obligate State or City. - A tourism development authority may not obligate the State or the city that established the authority to repay a PPP loan and has no power to pledge the credit of the State or the city that established the authority.
  3. Notice. - A tourism development authority shall provide written notice to the city council within 30 days of its acceptance of a PPP loan. The notice shall include the loan amount, the covered period, and the date by which the authority must apply for forgiveness.
  4. Repayment. - Notwithstanding any limitation on the use or distribution of occupancy tax proceeds in a local act, a tourism development authority for which a PPP loan is not forgiven, in whole or in part, shall repay the loan, including interest, from occupancy tax proceeds remitted to the authority on or after receipt of the PPP loan proceeds.
  5. Sunset. - This Article is repealed effective January 1, 2022.

History

(2021-3, s. 2.19(b).)

Article has a Delayed Repeal Date. - For repeal of this Article, see G.S. 160A-801(e).