GSNC

Article 1. Definitions and Statutory Construction.

§ 153A-1. Definitions.

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

“City” means a city as defined by G.S. 160A-1(2) , except that it does not include a city that, without regard to its date of incorporation, would be disqualified from receiving gasoline tax allocations by G.S. 136-41.2(a).
“Clerk” means the clerk to the board of commissioners.
“County” means any one of the counties listed in G.S. 153A-10 .
“General law” means an act of the General Assembly that applies to all units of local government, to all counties, to all counties within a class defined by population or other criteria, 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 counties, cities, or counties and cities.
“Local act” means an act of the General Assembly that applies to one or more specific counties, cities, or counties and cities by name. “Local act” is interchangeable with the terms “special act,” “special law,” “public-local act,” and “private act,” is used throughout this Chapter in preference to those terms, and means a local act as defined in this subdivision without regard to the terminology employed in local acts or other portions of the General Statutes.
“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.

History. 1973, c. 822, s. 1.

Local Modification.

Guilford: 2017-210, s. 1(c) (applicable to notices published on or after December 1, 2017); New Hanover: 1983, c. 365.

Editor’s Note.

Session Laws 1973, c. 822, repealed Chapter 153, Counties, and enacted in its place a new Chapter 153A. Certain other 1973 acts originally codified in Chapter 153 are included in Chapter 153A as directed in Session Laws 1973, c. 822, s. 2. Where appropriate, the historical citations to sections in the repealed Chapter have been added to corresponding sections in new Chapter 153A.

Session Laws 1973, c. 822, ss. 9 through 12, provided:

“Sec. 9. No provision of this act is intended, nor may any be construed, to affect in any way a right or interest, public or private:

“(a) Now vested or accrued, in whole or in part, the validity of which might be sustained or preserved by reference to a provision of law repealed by this act; or

“(b) Derived from or which might be sustained or preserved in reliance upon, action (including the adoption of orders, resolutions, or ordinances) taken before the effective date of this act pursuant to or within the scope of a provision of law repealed by this act.

“Sec. 10. No law repealed, expressly or by implication, before the effective date of this act and no law granting authority that has been exhausted before the effective date of this act is revived by:

“(a) The repeal in this act of any act repealing such a law; or

“(b) Any provision of this act that disclaims an intention to repeal or affect enumerated, designated, or described laws.

“Sec. 11. No provision of this act is intended, nor may any be construed, to impair the obligation of any bond, note, or coupon outstanding on the effective date of this act.

“Sec. 12. No action or proceeding of any nature (whether civil or criminal, judicial or administrative, or otherwise) pending at the effective date of this act is abated or otherwise affected by the adoption of this act.”

Session Laws 2017-210, s. 1(a), enacted a provision pertaining to electronic notice for notices required to be published by the governing board of Guilford County, effective December 1, 2017, applicable to notices published on or after that date, and applicable only to Guilford County and any municipality located wholly or partly in Guilford County.

Legal Periodicals.

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

§ 153A-2. Effect on prior laws and actions taken pursuant to prior laws.

The provisions of this Chapter, insofar as they are the same in substance as laws in effect as of December 31, 1973, are intended to continue those laws in effect and not to be new enactments. The enactment of this Chapter does not require the readoption of any county or city ordinance adopted pursuant to laws that were in effect as of December 31, 1973, and that are restated or revised in this Chapter. The provisions of this Chapter do 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, 1974.

History. 1973, c. 822, s. 1.

§ 153A-3. Effect of Chapter on local acts.

Except as provided in this section, nothing in this Chapter repeals or amends a local act in effect as of January 1, 1974, or any portion of such an act, unless this Chapter or a subsequent enactment of the General Assembly clearly shows a legislative intent to repeal or supersede that local act.
If this Chapter and a local act each provide a procedure that contains every action necessary for the performance or execution of a power, right, duty, function, privilege, or immunity, the two procedures may be used in the alternative, and a county may follow either one.
If this Chapter and a local act each provide a procedure for the performance or execution of a power, right, duty, function, privilege, or immunity, but the local act procedure does not contain every action necessary for the performance or execution, the two procedures may be used in the alternative, and a county may follow either one; but the local act procedure shall be supplemented as necessary by this Chapter’s procedure. If a local act procedure is being supplemented in such a manner, and there is a conflict or inconsistency between the local act procedure and this Chapter’s procedure, the local act procedure shall be followed.
If a power, right, duty, function, privilege, or immunity is conferred on counties by this Chapter, and a local act enacted earlier than this Chapter omits or expressly denies or limits the same power, right, duty, function, privilege, or immunity, this Chapter supersedes the local act.

History. 1973, c. 822, s. 1.

CASE NOTES

Section 153A-345 (repealed — see now G.S. 153A-345.1 and G.S. 160A-388) did not change Forsyth County zoning ordinance enacted pursuant to Session Laws 1947, c. 677 in April, 1967. Cardwell v. Forsyth County Zoning Bd. of Adjustment, 88 N.C. App. 244, 362 S.E.2d 843, 1987 N.C. App. LEXIS 3460 (1987).

§ 153A-4. Broad construction.

It is the policy of the General Assembly that the counties of this State should have adequate authority to exercise the powers, rights, duties, functions, privileges, and immunities conferred upon them by law. To this end, the provisions of this Chapter and of local acts shall be broadly construed and grants of power shall be construed to include any powers that are reasonably expedient to the exercise of the power.

History. 1973, c. 822, s. 1.

Legal Periodicals.

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, “Public Education, Local Authority, and Democracy: The Implied Power of North Carolina Counties to Impose School Impact Fees,” see 33 Campbell L. Rev. 239 (2011).

CASE NOTES

Legislative Intent. —

This legislative mandate requires broad construction of those statutes granting power and restrictive readings of those purporting to limit the power. Stillings v. City of Winston-Salem, 63 N.C. App. 618, 306 S.E.2d 489, 1983 N.C. App. LEXIS 3179 (1983), rev'd, 311 N.C. 689 , 319 S.E.2d 233, 1984 N.C. LEXIS 1760 (1984).

County Zoning Ordinance Enacted Arbitrarily and Capriciously. —

County zoning ordinance was enacted arbitrarily and capriciously under G.S. 153A-340(a) and G.S. 153A-341; no mention of the county’s comprehensive plan was made in the minutes of the meeting at which the county adopted the ordinance, and some of the permitted uses in the area were not consistent with a rural community character. Town of Green Level v. Alamance County, 184 N.C. App. 665, 646 S.E.2d 851, 2007 N.C. App. LEXIS 1622 (2007).

County Exceeded Statutory Authority With Regard to Zoning Regulations for Manufactured Homes. —

County exceeded the power the general assembly conferred upon it with regard to zoning regulations for manufactured homes because an ordinance, as amended, did not employ appearance and dimensional criteria as intended in G.S. 153A-341.1 and G.S. 160A-383.1 when the intent of the ordinance was to increase the tax base by the elimination of housing that rapidly depreciated in value, and that wealth based criterion was neither an appearance nor dimensional criteria; G.S. 160A-383.1, as made applicable to counties by G.S. 153A-341.1, limits a county’s power to enact zoning regulations for manufactured homes, and a county may not use its broad police powers as a guise to enact zoning regulations for manufactured homes inconsistent with G.S. 160A-383.1. Five C'S, Inc. v. County of Pasquotank, 195 N.C. App. 410, 672 S.E.2d 737, 2009 N.C. App. LEXIS 152 (2009).

Amendment to county zoning ordinance constituted a valid legislative prerogative to change the sanitary landfill use from a “special use permit” category to a “use by right under prescribed conditions” category and that section of the county zoning ordinance, which allowed county zoning administrator to approve the county’s permit application for the siting of a landfill, was constitutional and lawful on its face. County of Lancaster v. Mecklenburg County, 334 N.C. 496 , 434 S.E.2d 604, 1993 N.C. LEXIS 403 (1993).

County was authorized to amend its zoning ordinance to prevent the expansion of a nonconforming use mobile home park by precluding the expansion of its sewage treatment capacity. Huntington Props. v. Currituck County, 153 N.C. App. 218, 569 S.E.2d 695, 2002 N.C. App. LEXIS 1132 (2002).

Applicable Only Where Ambiguity Exists. —

Only if there is an ambiguity in a statute found in N.C. Gen. Stat. ch. 153A should G.S. 153A-4 be part of the courts’ interpretative process. Durham Land Owners Ass'n v. County of Durham, 177 N.C. App. 629, 630 S.E.2d 200, 2006 N.C. App. LEXIS 1187 (2006).

County lacked the authority under G.S. 153A-4 , 153A-340, and 153A-341 to adopt an adequate public facilities ordinance (APFO) that effectively conditioned the approval of new residential construction projects on developers paying a fee to subsidize new school construction, because the APFO was not a zoning ordinance. Lanvale Props., LLC v. County of Cabarrus, 366 N.C. 142 , 731 S.E.2d 800, 2012 N.C. LEXIS 644 (2012).

Public utility authority and a county were not authorized to assess sewer and water impact fees against developers because, inter alia, G.S. 153A-4 did not apply, since the language of G.S. 162A-88 was clear. Point South Props., LLC v. Cape Fear Pub. Util. Auth., 243 N.C. App. 508, 778 S.E.2d 284, 2015 N.C. App. LEXIS 878 (2015), overruled in part, Quality Built Homes Inc. v. Town of Carthage, 371 N.C. 60 , 813 S.E.2d 218, 2018 N.C. LEXIS 325 (2018).

§ 153A-5. Statutory references deemed amended to conform to Chapter.

If a reference is made in another portion of the General Statutes, in a local act, or in a city or county ordinance, resolution, or order to a portion of Chapter 153, and the reference is to Chapter 153 as it existed immediately before February 1, 1974, the reference is deemed amended to refer to that portion of this Chapter that most nearly corresponds to the repealed or superseded portion of Chapter 153.

History. 1973, c. 822, s. 1.

§§ 153A-6 through 153A-9.

Reserved for future codification purposes.

Article 2. Corporate Powers.

§ 153A-10. State has 100 counties.

North Carolina has 100 counties. They are: Alamance, Alexander, Alleghany, Anson, Ashe, Avery, Beaufort, Bertie, Bladen, Brunswick, Buncombe, Burke, Cabarrus, Caldwell, Camden, Carteret, Caswell, Catawba, Chatham, Cherokee, Chowan, Clay, Cleveland, Columbus, Craven, Cumberland, Currituck, Dare, Davidson, Davie, Duplin, Durham, Edgecombe, Forsyth, Franklin, Gaston, Gates, Graham, Granville, Greene, Guilford, Halifax, Harnett, Haywood, Henderson, Hertford, Hoke, Hyde, Iredell, Jackson, Johnston, Jones, Lee, Lenoir, Lincoln, Macon, Madison, Martin, McDowell, Mecklenburg, Mitchell, Montgomery, Moore, Nash, New Hanover, Northampton, Onslow, Orange, Pamlico, Pasquotank, Pender, Perquimans, Person, Pitt, Polk, Randolph, Richmond, Robeson, Rockingham, Rowan, Rutherford, Sampson, Scotland, Stanly, Stokes, Surry, Swain, Transylvania, Tyrrell, Union, Vance, Wake, Warren, Washington, Watauga, Wayne, Wilkes, Wilson, Yadkin, and Yancey.

History. 1973, c. 822, s. 1.

Editor’s Note.

Session Laws 1998-15 provides for the ratification of the Meck Neck Transfer Joint Undertaking Agreement made as of November 18, 1997, by and between Iredell County and Mecklenburg County. Provision is provided for the filing and recording of public records, taxation, completion of the Street Assessment Program begun by Mecklenburg County, resolution of criminal actions, voter registration, jury lists and court jurisdiction, and education and tuition for children residing in the affected area.

Legal Periodicals.

For article, “Tort Answers to the Problem of Corporate Criminal Mens Rea,” see 97 N.C.L. Rev. 773 (2019).

§ 153A-11. Corporate powers.

The inhabitants of each county are a body politic and corporate under the name specified in the act creating the county. Under that name they are vested with all the property and rights of property belonging to the corporation; have perpetual succession; may sue and be sued; may contract and be contracted with; may acquire and hold any property and rights of property, real and personal, that may be devised, sold, or in any manner conveyed, dedicated to, or otherwise acquired by the corporation, and from time to time may hold, invest, sell, or dispose of the property and rights of property; may have a common seal and alter and renew it at will; and have and may exercise in conformity with the laws of this State county powers, rights, duties, functions, privileges, and immunities of every name and nature.

History. 1868, c. 20, ss. 1, 2, 3, 8; 1876-7, c. 141, s. 1; Code, ss. 702, 703, 704, 707; Rev., ss. 1309, 1310, 1318; C.S., ss. 1290, 1291, 1297; 1973, c. 822, s. 1; 2011-284, s. 105.

Effect of Amendments.

Session Laws 2011-284, s. 105, effective June 24, 2011, deleted “bequeathed” following “that may be devised” in the second sentence.

Legal Periodicals.

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

CASE NOTES

Analysis

I. General Consideration
II. Suits By and Against County

I.General Consideration

Editor’s Note. —

Some of the cases cited below were decided under corresponding sections of former law.

Counties Are Bodies Politic and Corporate. —

Counties are bodies politic and corporate, which may exercise as agents for the State only such powers as are prescribed by statute and those which are necessarily implied therefrom by law, essential to the exercise of the powers specifically conferred. O'Neal v. Wake County, 196 N.C. 184 , 145 S.E. 28, 1928 N.C. LEXIS 313 (1928). See also, Board of Comm'rs v. Hanchett Bond Co., 194 N.C. 137 , 138 S.E. 614, 1927 N.C. LEXIS 32 (1927).

The Constitution recognizes the existence of counties as governmental agencies. White v. Commissioners of Chowan, 90 N.C. 437 , 1884 N.C. LEXIS 250 (1884); Woodall v. Western Wake Hwy. Comm'n, 176 N.C. 377 , 97 S.E. 226, 1918 N.C. LEXIS 252 (1918).

Counties Are Part of the State Government. —

Counties are of, and constitute a part of, the State government. Their chief purpose is to establish its political organization, and effectuate the local civil administration of its powers and authority. They are in their general nature governmental—mere instrumentalities of government—and possess corporate powers adapted to its purposes. It is not their purpose to create civil liability on their part, and become answerable to individuals civilly or otherwise. Manuel v. Board of Comm'rs of Cumberland County, 98 N.C. 9 , 3 S.E. 829, 1887 N.C. LEXIS 210 (1887) (citing) White v. Commissioners of Chowan, 90 N.C. 437 , 1884 N.C. LEXIS 250 (1884) and McCormac v. Commissioners of Robeson, 90 N.C. 441 , 1884 N.C. LEXIS 251 (1884).

Counties are a branch of the State government. Bell v. Commissioners of Johnston County, 127 N.C. 85 , 37 S.E. 136, 1900 N.C. LEXIS 27 (1900).

By Art. VII of the Constitution of 1868, counties were regarded as municipal corporations. Winslow v. Commissioners of Perquimans County, 64 N.C. 218 , 1870 N.C. LEXIS 66 (1870). See also, Gooch v. Gregory, 65 N.C. 142 , 1871 N.C. LEXIS 45 (1871).

Counties are not, in a strictly legal sense, municipal corporations, like cities and towns. Their purposes are more general and partake more largely of the purposes and powers of government proper. Manuel v. Board of Comm'rs of Cumberland County, 98 N.C. 9 , 3 S.E. 829, 1887 N.C. LEXIS 210 (1887); Bell v. Commissioners of Johnston County, 127 N.C. 85 , 37 S.E. 136, 1900 N.C. LEXIS 27 (1900); Martin v. Board of Comm'rs, 208 N.C. 354 , 180 S.E. 777, 1935 N.C. LEXIS 417 (1935).

The powers of the legislature over counties are very broad and far-reaching, giving to it practically full control of them. Jones v. Commissioners, 137 N.C. 579 , 50 S.E. 291, 1905 N.C. LEXIS 211 (1905); Woodall v. Western Wake Hwy. Comm'n, 176 N.C. 377 , 97 S.E. 226, 1918 N.C. LEXIS 252 (1918).

Legislature May Create Counties and Invest Them with Powers. —

It is within the power of the legislature to subdivide the territory of the State and invest the inhabitants of such subdivisions with corporate functions, more or less extensive and varied in their character, for the purpose of government. The legislature alone can create counties, directly or indirectly, and invest them, and agencies in them, with powers, corporate or otherwise in their nature, to effectuate the purposes of the government, whether these be local or general, or both. Such organizations are intended to be instrumentalities and agencies employed to aid in the administration of the government, and are always under the control of the power that created them unless the same shall be restricted by some constitutional limitations. McCormac v. Commissioners of Robeson, 90 N.C. 441 , 1884 N.C. LEXIS 251 (1884); Board of Trustees v. Webb, 155 N.C. 379 , 71 S.E. 520, 1911 N.C. LEXIS 405 (1911); Commissioners of Cumberland County v. Commissioners of Harnett County, 157 N.C. 514 , 157 N.C. 517 , 73 S.E. 195, 1911 N.C. LEXIS 84 (1911); Woodall v. Western Wake Hwy. Comm'n, 176 N.C. 377 , 97 S.E. 226, 1918 N.C. LEXIS 252 (1918).

Imposing Liability on Counties. —

The legislature, subject to constitutional limitations, may confer upon counties such corporate powers to make contracts, create civil liabilities, and serve such business purposes, as it may deem expedient and wise, and may make them answerable in damages for the negligence of their officers and agents in failing to properly exercise the powers with which they are charged, or for exercising them improperly, to the injury of individuals. But such corporate authority and liability must be especially created by and appear from statutory provision, expressed in terms or necessarily implied. Manuel v. Board of Comm'rs of Cumberland County, 98 N.C. 9 , 3 S.E. 829, 1887 N.C. LEXIS 210 (1887).

The legislature may direct counties to perform as duties all things which it can empower them to do. State ex rel. Tate v. Board of Comm'rs, 122 N.C. 812 , 30 S.E. 352, 1898 N.C. LEXIS 357 (1898).

Legislature May Enlarge, Abridge or Modify Counties’ Functions. —

The functions of counties are not always the same, and they may be enlarged, abridged or modified at the will of the legislature. White v. Commissioners of Chowan, 90 N.C. 437 , 1884 N.C. LEXIS 250 (1884).

As Well as Alter or Abolish Counties. —

Counties are legislative creations and subject to be changed, even abolished, or divided and subdivided, at the will of the General Assembly. Jones v. Commissioners of Stokes County, 143 N.C. 59 , 55 S.E. 427 (1906); Board of Trustees v. Webb, 155 N.C. 379 , 71 S.E. 520, 1911 N.C. LEXIS 405 (1911); Woodall v. Western Wake Hwy. Comm'n, 176 N.C. 377 , 97 S.E. 226, 1918 N.C. LEXIS 252 (1918).

As to construction of powers granted to counties under former statutes, see Vaughn v. Commissioners of Forsyth County, 118 N.C. 636 , 24 S.E. 425, 1896 N.C. LEXIS 109 (1896).

Supervisory Control of Boards of Commissioners. —

Under the Constitution and public laws of North Carolina, the boards of county commissioners are generally given supervision and control of governmental matters in the several counties. Bunch v. Commissioners of Randolph County, 159 N.C. 335 , 74 S.E. 1048, 1912 N.C. LEXIS 279 (1912).

County Must Act Through Commissioners Convened in a Legal Session. —

For a county to exercise its power to contract, it is essential that it act through its county commissioners as a body convened in legal session, regular, adjourned or special, and, as a rule, authorized meetings are prerequisite to corporate action, which should be based upon deliberate conference and intelligent discussion of proposed measures. O'Neal v. Wake County, 196 N.C. 184 , 145 S.E. 28, 1928 N.C. LEXIS 313 (1928); Davenport v. Pitt County Drainage Dist., 220 N.C. 237 , 17 S.E.2d 1, 1941 N.C. LEXIS 513 (1941); Jefferson Std. Life Ins. Co. v. Guilford County, 225 N.C. 293 , 34 S.E.2d 430, 1945 N.C. LEXIS 320 (1945).

County Commissioners Not in Joint Meeting with Other Governmental Agencies. —

The commissioners of a county are without authority, constitutional or statutory, to enter into a joint meeting with other State governmental agencies functioning as entirely separate departments respectively of the county and the State, and therein to make a binding corporate contract by the adoption of a joint verbal agreement to pledge the faith and credit of the county for its part in paying for the employment of a person to render service in the capacity of a detective to determine and procure evidence against those who have committed a criminal offense. O'Neal v. Wake County, 196 N.C. 184 , 145 S.E. 28, 1928 N.C. LEXIS 313 (1928).

In order to make a binding pecuniary obligation on a county under former statute imposing duty on county commissioners to provide for the poor, there had to be a contract to that effect, express in its terms, or the service had to be done at the express request of an officer or agent charged with the duty and having the power to make contracts concerning it. Copple v. Commissioners of Davie County, 138 N.C. 127 , 50 S.E. 574 (1905).

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 N.C. LEXIS 2555 (1987).

Authority to Allow Payment of Insurance Premiums for Disability Retiree. —

In an action by a retired police officer seeking continuation of insurance payments by the county; individual county commissioners did not have authority to bind the county to such payments pursuant to G.S. 153A-92 or G.S. 153A-11 , and a county manager did not did not have authority pursuant to G.S. 153A-82 to bind the county to an agreement to pay the insurance premiums without an express delegation of power by the Board of County Commissioners. Denson v. Richmond County, 159 N.C. App. 408, 583 S.E.2d 318, 2003 N.C. App. LEXIS 1498 (2003).

II.Suits By and Against County

Suit in Name of County. —

Where a county is the real party in interest, it must sue and be sued in its own name. Lenoir County v. Crabtree, 158 N.C. 357 , 74 S.E. 105, 1912 N.C. LEXIS 51 (1912); Fountain v. County of Pitt, 171 N.C. 113 , 87 S.E. 990, 1916 N.C. LEXIS 24 (1916); Johnson v. Marrow, 228 N.C. 58 , 44 S.E.2d 468, 1947 N.C. LEXIS 542 (1947).

A county is not required in an action for mandatory injunction to bring the suit in the name of the county commissioners. Such a suit should be brought in the name of the county. Lenoir County v. Crabtree, 158 N.C. 357 , 74 S.E. 105, 1912 N.C. LEXIS 51 (1912).

Absent a refusal of the board of commissioners of a county to institute an action in its behalf, the action must be instituted in the name of the county or on relation of the county. Johnson v. Marrow, 228 N.C. 58 , 44 S.E.2d 468, 1947 N.C. LEXIS 542 (1947).

As to requirement of former statute that all actions and proceedings by or against a county in its corporate capacity be in the name of the board of commissioners, see Pegram v. Commissioners of Cleveland County, 65 N.C. 114 , 1871 N.C. LEXIS 35 (1871); Askew v. Pollock, 66 N.C. 49 , 1872 N.C. LEXIS 4 (1872); State ex rel. Wescott v. Thees, 89 N.C. 55 , 1883 N.C. LEXIS 176 (1883); Fountain v. County of Pitt, 171 N.C. 113 , 87 S.E. 990, 1916 N.C. LEXIS 24 (1916).

As to venue of action under former statute providing that a county should sue and be sued in the name of the board of commissioners, see Jones v. Board of Comm'rs, 69 N.C. 412 , 1873 N.C. LEXIS 250 (1873); Steele v. Commissioners of Rutherford, 70 N.C. 137 , 1874 N.C. LEXIS 181 (1874).

Form of Action Against County. —

Where a good cause of action exists, a county may be sued in any form appropriate to the cause of action, and its liability does not differ as respects the form of the action from that of a private corporation or of an individual. Winslow v. Commissioners of Perquimans County, 64 N.C. 218 , 1870 N.C. LEXIS 66 (1870).

Failure to Join the County in Rezoning Dispute Was Fatal. —

The trial court erred in denying the Board of Commissioners’ motion to dismiss under G.S. 1A-1 , Rule 12(b)(1), (2), (4), (6) and (7) where the plaintiffs brought their action challenging a rezoning solely against the board and not against the county, and where the plaintiffs’ attempts to amend the complaint to substitute the county as the named defendant were ineffective as they occurred after the statute of limitations had run under G.S. 1-54.1 . Piland v. Hertford County Bd. of Comm'rs, 141 N.C. App. 293, 539 S.E.2d 669, 2000 N.C. App. LEXIS 1411 (2000).

Counties and County Commissioners Do Not Have Sovereign Immunity. —

These powers and the many others enumerated in this Chapter show that a county and the county commissioners are not part of the State of North Carolina and they do not enjoy its sovereign immunity. Meares v. Brunswick County, 615 F. Supp. 14, 1985 U.S. Dist. LEXIS 20801 (E.D.N.C. 1985).

Counties may be sued only in such cases and for such causes as may be allowed by statute. Bell v. Commissioners of Johnston County, 127 N.C. 85 , 37 S.E. 136, 1900 N.C. LEXIS 27 (1900).

Counties Are Not Ordinarily Liable for Exercise of Corporate Powers. —

Counties are not ordinarily liable to be sued civilly for the manner in which they exercise or fail to exercise their corporate powers. White v. Commissioners of Chowan, 90 N.C. 437 , 1884 N.C. LEXIS 250 (1884).

Generally a county is not liable for damages by reason of the neglect of its officers or agents. Manuel v. Board of Comm'rs of Cumberland County, 98 N.C. 9 , 3 S.E. 829, 1887 N.C. LEXIS 210 (1887).

Absent Statutory Provisions Giving a Right of Action. —

Counties are not liable in damages for the torts of their officials, in the absence of statutory provisions giving a right of action. Keenan v. Commissioners of New Hanover County, 167 N.C. 356 , 83 S.E. 556 (1914), petition for rehearing denied, 169 N.C. 246 , 85 S.E. 5 (1915). As to waiver of governmental immunity by county, see G.S. 153A-435 .

For case holding county not liable in damages for injury occasioned by a defective bridge forming a part of the highway, see Moffitt v. City of Asheville, 103 N.C. 237 , 9 S.E. 695, 1889 N.C. LEXIS 102 (1889).

Power to Compromise Suits. —

The power to sue and to defend suits carries with it, by necessary implication, the power to make bona fide compromise adjustments of such suits. Board of Comm'rs v. Tollman, 145 F. 753, 1906 U.S. App. LEXIS 4022 (4th Cir. 1906).

Power to Enter Consent Judgment. —

County commissioners have authority to assent to the entry of a consent judgment in an action pending against the county, when such judgment is entered in good faith and is free from fraud, etc., a consent judgment being a contract of the parties spread upon the records with the approval and sanction of a court of competent jurisdiction. Weaver v. Hampton, 204 N.C. 42 , 167 S.E. 484, 1933 N.C. LEXIS 315 (1933).

County revenue is safe from seizure by creditors, or even for taxes due the federal government, because to admit the right to appropriate such revenue in satisfaction of a claim would be to concede the power to destroy the State government by depriving its agencies of the means of performing their proper functions. Subject to the restrictions contained in the federal Constitution, the State is a sovereignty, and it is essential to its preservation to give to all property held for it by such agencies as counties the same protection as is given to that held in its own name. Hughes v. Commissioners of Craven County, 107 N.C. 598 , 12 S.E. 465, 1890 N.C. LEXIS 112 (1890); Vaughn v. Commissioners of Forsyth County, 118 N.C. 636 , 24 S.E. 425, 1896 N.C. LEXIS 109 (1896).

Property and Revenue of County Not Subject to Execution. —

A county can only acquire and hold property for necessary public purposes and for the benefit of all its citizens, and the principles of public policy prevent such property from being sold under execution to satisfy the debt of an individual. Hughes v. Commissioners of Craven County, 107 N.C. 598 , 12 S.E. 465, 1890 N.C. LEXIS 112 (1890). See also, Gooch v. Gregory, 65 N.C. 142 , 1871 N.C. LEXIS 45 (1871).

Ordinarily, the only remedy of a judgment creditor of a county is a writ of mandamus to compel its commissioners to levy a tax to pay the debt. Hughes v. Commissioners of Craven County, 107 N.C. 598 , 12 S.E. 465, 1890 N.C. LEXIS 112 (1890) (citing) Pegram v. Commissioners of Cleveland County, 64 N.C. 557 , 1870 N.C. LEXIS 177 (1870); Lutterloh v. Board of Comm'rs, 65 N.C. 403 , 1871 N.C. LEXIS 117 (1871); Rogers v. Jenkins, 98 N.C. 129 , 3 S.E. 821, 1887 N.C. LEXIS 235 (1887).

A plaintiff who has obtained a judgment against a county is not entitled to an execution against it. His remedy is by writ of mandamus against the board of commissioners of the county to compel them to levy a tax for the satisfaction of the judgment. Gooch v. Gregory, 65 N.C. 142 , 1871 N.C. LEXIS 45 (1871).

When Mandamus Unnecessary. —

An action may be maintained against county commissioners establishing a debt against the county without asking for a writ of mandamus where it appears that the county has property subject to trusts, or such as can be reached only by proceedings supplemental to execution. Hughes v. Commissioners of Craven County, 107 N.C. 598 , 12 S.E. 465, 1890 N.C. LEXIS 112 (1890).

Disability Discrimination Claim. —

District court declined to grant a county’s Fed. R. Civ. P. 12(b)(1) motion to dismiss a former employee’s disability discrimination claims where the county had the capacity to be sued under G.S. 153A-11 and as a county, it was not entitled to sovereign immunity under the Eleventh Amendment. Rivera v. Guilford County, 286 F. Supp. 2d 635, 2003 U.S. Dist. LEXIS 18214 (M.D.N.C. 2003).

§ 153A-12. Exercise of corporate power.

Except as otherwise directed by law, each power, right, duty, function, privilege and immunity of the corporation shall be exercised by the board of commissioners. A power, right, duty, function, privilege, or immunity shall be carried into execution as provided by the laws of the State; a power, right, duty, function, privilege, or immunity that is conferred or imposed by law without direction or restriction as to how it is to be exercised or performed shall be carried into execution as provided by ordinance or resolution of the board of commissioners.

History. 1868, c. 20, ss. 1, 2; 1876-7, c. 141, s. 1; Code, ss. 702, 703; Rev., s. 1309; C.S., s. 1290; 1973, c. 882, s. 1.

CASE NOTES

Counties and County Commissioners Do Not Have Sovereign Immunity. —

Failure to Join the County in Rezoning Dispute Was Fatal. —

§ 153A-13. Continuing contracts.

A county may enter into continuing contracts, some portion or all of which are to be performed in ensuing fiscal years. In order to enter into such a contract, the county must have sufficient funds appropriated to meet any amount to be paid under the contract in the fiscal year in which it is made. In each year, the board of commissioners shall appropriate sufficient funds to meet the amounts to be paid during the fiscal year under continuing contracts previously entered into.

History. 1959, c. 250; 1973, c. 822, s. 1.

Cross References.

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

§ 153A-14. Grants and loans from other governments.

A county may contract for and accept grants and loans as permitted by G.S. 160A-17.1 .

History. 1973, c. 822, s. 1; 2007-91, s. 2.

Editor’s Note.

Session Laws 2007-91, s. 3, provided, in part, that the addition by that act of “and loans” in the section heading expired on December 31, 2010. The words “and loans” have been reinserted in the section heading at the direction of the Revisor of Statutes.

Effect of Amendments.

Session Laws 2007-91, s. 2, effective June 20, 2007, and expiring December 31, 2010, inserted “and loans” in the section heading.

§ 153A-15. Consent of board of commissioners necessary in certain counties before land may be condemned or acquired by a unit of local government outside the county.

Notwithstanding the provisions of Chapter 40A of the General Statutes or any other general law or local act conferring the power of eminent domain, before final judgment may be entered in any action of condemnation initiated by a county, city or town, special district, or other unit of local government which is located wholly or primarily outside another county, whereby the condemnor seeks to acquire property located in the other county, the condemnor shall furnish proof that the county board of commissioners of the county where the land is located has consented to the taking.
Notwithstanding the provisions of G.S. 153A-158 , 160A-240.1, 130A-55, or any other general law or local act conferring the power to acquire real property, before any county, city or town, special district, or other unit of local government which is located wholly or primarily outside another county acquires any real property located in the other county by exchange, purchase or lease, it must have the approval of the county board of commissioners of the county where the land is located.
This section applies to Alamance, Alleghany, Anson, Ashe, Bertie, Bladen, Brunswick, Burke, Buncombe, Cabarrus, Caldwell, Camden, Carteret, Caswell, Catawba, Chatham, Cherokee, Clay, Cleveland, Columbus, Craven, Cumberland, Currituck, Dare, Davidson, Davie, Duplin, Durham, Edgecombe, Forsyth, Franklin, Gaston, Gates, Graham, Granville, Greene, Guilford, Halifax, Harnett, Haywood, Henderson, Hoke, Hyde, Iredell, Jackson, Johnston, Jones, Lee, Lenoir, Lincoln, Macon, Madison, Martin, McDowell, Mecklenburg, Montgomery, Nash, New Hanover, Northampton, Onslow, Orange, Pamlico, Pasquotank, Pender, Perquimans, Person, Pitt, Polk, Richmond, Robeson, Rockingham, Rowan, Rutherford, Sampson, Scotland, Stanly, Stokes, Surry, Swain, Transylvania, Union, Vance, Wake, Warren, Watauga, Wayne, Wilkes, and Yancey Counties only.
This section does not apply as to any condemnation or acquisition of real property or an interest in real property by a city where the property to be condemned or acquired is within the corporate limits of that city.

History. 1981, c. 134, ss. 1, 2; c. 270, ss. 1, 2; c. 283, ss. 1-3; c. 459, s. 1; c. 941, s. 1; 1981 (Reg. Sess., 1982), c. 1150, s. 1; 1989 (Reg. Sess., 1990), c. 973, s. 1; c. 1061, s. 1; 1991, c. 615, s. 3; 1991 (Reg. Sess., 1992), c. 790, s. 1; 1993 (Reg. Sess., 1994), c. 624, s. 1; c. 628, s. 1; 1995 (Reg. Sess., 1996), c. 681, s. 1; 1997-164, s. 1; 1997-263, s. 1; 1998-110, s. 1; 1998-217, s. 47; 1999-6, s. 1; 2005-33, s. 1; 2013-174, s. 1; 2015-253, s. 13.

Local Modification.

Anson, Bertie, Buncombe, Burke, Caldwell: 1989 (Reg. Sess., 1990), c. 1061, s. 2; Caswell: 1981, c. 941, s. 2; Cleveland, Davidson, Davie, Forsyth: 1989 (Reg. Sess., 1990), c. 1061, s. 2; Granville: 1981, c. 941, s. 2; Kannapolis: 1997, c. 295; Martin, Montgomery: 1989 (Reg. Sess., 1990), c. 1061, s. 2; Person: 1981, c. 941, s. 2; Rowan, Transylvania: 1989 (Reg. Sess., 1990), c. 1061, s. 2; Vance, Warren: 1981, c. 941, s. 2; Wilkes: 1989 (Reg. Sess., 1990), c. 1061, s. 2; Town of Chapel Hill: 2004-119, s. 2.

Editor’s Note.

Sections 1 and 2 of Session Laws 1981, cc. 134 and 270, and ss. 1 through 3 of Session Laws 1981, c. 283, as amended by Session Laws 1981, cc. 459, 941, and 1150, and Session Laws 1989 (Reg. Sess., 1990), cc. 973, and 1061, have been codified as this section under the direction of the Revisor of Statutes.

For similar provisions pertaining to Cabarrus County, see Session Laws 1985, c. 194.

Effect of Amendments.

Session Laws 2005-33, s. 1, effective May 9, 2005, added “Northampton” to the list of counties in subsection (c) to which the section applies.

Session Laws 2015-253, s. 13, effective September 28, 2015, inserted “Dare,” “Gates,” and “Hyde” in the list of counties in subsection (c).

CASE NOTES

Applicability. —

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 N.C. App. LEXIS 898 (2005).

Standing. —

Property owners did not have standing to assert G.S. 153A-15 as a defense to condemnations by a city to establish a gas transmission and distribution system. Town of Midland v. Morris, 209 N.C. App. 208, 704 S.E.2d 329, 2011 N.C. App. LEXIS 152 (2011).

§ 153A-15.1. Agreement to make payment in lieu of future ad valorem taxes required before wetlands acquisition by a unit of local government.

Condemnation. — Notwithstanding the provisions of G.S. 153A-15 , Chapter 40A of the General Statutes, or any other general law or local act conferring the power of eminent domain, before a final judgment may be entered or a final condemnation resolution adopted in an action of condemnation initiated by a unit of local government whose property is exempt from tax under Section 2(3) of Article V of the North Carolina Constitution, whereby the condemnor seeks to acquire land for the purpose of wetlands mitigation, the condemnor shall agree in writing to pay to the county where the land is located a sum equal to the estimated amount of ad valorem taxes that would have accrued to the county for the next 20 years had the land not been acquired by the condemnor.
Purchase. — Notwithstanding the provisions of G.S. 130A-55 , 153A-15, 153A-158, 160A-240.1, or any other general law or local act conferring the power to acquire real property, before any unit of local government whose property is exempt from tax under Section 2(3) of Article V of the North Carolina Constitution purchases any land for the purpose of wetlands mitigation, the unit shall agree in writing to pay to the county where the land is located a sum equal to the estimated amount of ad valorem taxes that would have accrued to the county for the next 20 years had the land not been acquired by the acquiring unit.
Definition. — For purposes of this section, the “estimated amount of ad valorem taxes that would have accrued for the next 20 years” means the total assessed value of the acquired land excluded from the county’s tax base multiplied by the tax rate set by the county board of commissioners in its most recent budget ordinance adopted under Chapter 159 of the General Statutes, and then multiplied by 20.
Exception. — This section does not apply to any condemnation or acquisition of land by a city or special district if the land to be condemned or acquired is within the corporate limits of that city or special district or within the county where the city or special district is located.
Application. — This section applies only to land acquired in counties designated as a development tier one area under G.S. 143B-437.08.

History. 2004-188, s. 1; 2006-252, s. 2.17.

Effect of Amendments.

Session Laws 2006-252, s. 2.17, effective January 1, 2007, substituted “a development tier one area under G.S. 143B-437.08” for “an enterprise tier one or enterprise tier two area under G.S. 105-129.3” in subsection (e).

§ 153A-16.

Reserved for future codification purposes.

Article 3. Boundaries.

§ 153A-17. Existing boundaries.

The boundaries of each county shall remain as presently established, until changed in accordance with law.

History. 1973, c. 822, s. 1.

Local Modification.

Alamance and Guilford Counties: 2018-61, ss. 1-11; Wake, Chatham, and Harnett Counties: 2018-62, ss. 1-8.

Editor’s Note.

Session Laws 2018-61, ss. 1-11, effective July 1, 2018, provided for the transition of properties of the area along the common boundary between Alamance County and Guilford County due to the 2008 North Carolina Geodetic Survey that depicted and monumentted the historic Alamance/Guilford County boundary line as described in the 1949 survey establishing Guilford County.

Session Laws 2018-61, ss. 1, 11, specifically provide: “SECTION 1: The true historic Guilford County boundary line, as described and set forth in the survey of 1849, has now been determined by resurvey conducted by the North Carolina Geodetic Survey (NCGS) in 2008 (hereinafter ‘2008 survey‘) upon the request of the boards of commissioners of Alamance and Guilford Counties by resolutions adopted in December 2007. The board of commissioners of Alamance and Guilford County have each adopted a resolution ratifying the 2008 survey as authorized in G.S. 153A-18 . The boundary line as set out in the resurvey of the line conducted by the NCGS in 2008 is hereby recognized as the true and accurate boundary for Guilford County and Alamance County and is hereby ratified. No later than September 1, 2018, the NCGS shall submit the survey plat denoting the location of the reestablished Alamance/Guilford boundary line to the Register of Deeds in Alamance and Guilford Counties and to the Office of the Secretary of State.

“SECTION 11: The establishment of a county boundary line is, pursuant to Section 1 of Article VII of the North Carolina Constitution, the responsibility of the General Assembly. Further, it is vital to the State of North Carolina and all affected local governments that county boundary lines be fixed and any uncertainty as to the location of county boundary lines be resolved. For this reason and in the interest of justice, neither Alamance County nor Guilford County, nor any agent, employee, or appointed or elected official thereof, shall be liable to any individual, group, organization, for-profit or not-for-profit business entity of any kind, or governmental entity or agency of any type or kind for any damages, costs, fees, or fines, and no court action shall be maintained against said counties, officials, employees, and agents for any recommendation, act, failure to act, or conduct related to the provisions of this act and/r the adoption of a fixed boundary line separating the two counties. Alamance County and Guilford County and their officials, employees, and agents are released from all liability for any claims made, and no court action shall be maintained against said officials, employees, and agents for any act or failure to act pursuant to the terms of this act.”

Session Laws 2018-62, ss. 1-8, effective January 1, 2019, establish the tri-county boundary corner between Wake, Harnett, and Chatham Counties, and correct a portion of the southernmost Wake/Chatham County boundary line as described in a 1961 survey.

Session Laws 2018-62, ss. 5, 8, specifically provide: “SECTION 5. The General Assembly hereby ratifies the 2017 NCGS Resurvey, dated September 27, 2017, and entitled ‘Resurvey of the Chatham, Harnett, and Wake County Corner‘ as the official survey of the tri-county corner shared among Wake, Chatham, and Harnett County and the corrected portion of the southern boundary line between Wake and Chatham County. Unless otherwise modified by this act, the other boundary locations as referenced in the 1961 Wake/Chatham survey shall remain in full force and effect. Wake, Chatham, and Harnett County, with the assistance of NCGS, shall cause a final version of the 2017 NCGS Resurvey to be prepared for official recording in their respective Register of Deeds Offices on or after the effective date of this act. Each county shall cause a copy of the same to be filed with the North Carolina Secretary of State.

“SECTION 8. The elected and appointed officials and employees of Wake, Chatham, and Harnett County shall incur no liability under any local or general law, ordinance, rule, or regulation for any act or failure to act relating to taxation, school attendance, land-use controls, elections, or any other governmental function as it relates to the boundary line of Wake, Chatham, and Harnett County.”

§ 153A-18. Uncertain or disputed boundary.

If two or more counties are uncertain as to the exact location of the boundary between them, the North Carolina Geodetic Survey (NCGS), on a cooperative basis, shall assist counties in defining and monumenting the location of the uncertain or disputed boundary as established in accordance with law. Upon receiving written request from all counties adjacent to the uncertain or disputed boundary, the NCGS may cause the boundary to be surveyed, marked, and mapped. The counties may appoint special commissioners to supervise the surveying, marking, and mapping. A commissioner so appointed or a person surveying or marking the boundary may enter upon private property to view and survey the boundary or to erect boundary markers. Upon ratification of the survey by the board of commissioners of each county, a map showing the surveyed boundary shall be recorded in the office of the register of deeds of each county in the manner provided by law for the recordation of maps or plats and in the Secretary of State’s office. The map shall contain a reference to the date of each resolution of ratification and to the page in the minutes of each board of commissioners where the resolution may be found. Upon recordation, the map is conclusive as to the location of the boundary. Upon reestablishing all, or some portion, of a county boundary, and if after the NCGS submits the results of the survey to the requesting counties, and the requesting counties have not ratified the reestablished boundary within one year of receiving the (map) survey plat denoting the location of the reestablished boundary, the survey plat will become conclusive as to the location of the boundary and will be recorded in the Register of Deeds in each affected county and in the Secretary of State’s office. The Chief of the NCGS (State Surveyor) will notify each affected party in writing of the action taken. As used in this subsection, an “affected party” means both (i) the governing body of a county that the reestablished boundary denotes the extent of its jurisdiction and (ii) a property owner whose real property has been placed in whole or in part in another county due to the reestablished boundary.
If two or more counties dispute the exact location of the boundary between them, and the dispute cannot be resolved pursuant to subsection (a) of this section, any of the counties may apply to a superior court judge who has jurisdiction pursuant to G.S. 7A-47.1 or 7A-48 in any of the districts or sets of districts as defined in G.S. 7A-41.1 in which any of the counties is located for appointment of a boundary commission. The application shall identify the disputed boundary and ask that a boundary commission be appointed. Upon receiving the application, the court shall set a date for a hearing on whether to appoint the commission. The court shall cause notice of the hearing to be served on the other county or counties. If, after the hearing, the court finds that the location of the boundary is disputed, it shall appoint a boundary commission.The commission shall consist of one resident of each disputing county and a resident of some other county. The court may appoint one or more surveyors to assist the commission. The commission shall locate, survey, and map and may mark the disputed boundary. To do so it may take evidence and hear testimony, and any commissioner and any person surveying or marking the boundary may enter upon private property to view and survey the boundary or to erect boundary markers. Within 45 days after the day it is appointed, unless this time is extended by the court, the commission shall make its report (which shall include a map of the surveyed boundary) to the court. To be sufficient, the report must be concurred in by a majority of the commissioners. If the court is satisfied that the commissioners have made no error of law, it shall ratify the report, after which the map shall be recorded in the office of the register of deeds of each county in the manner provided by law for the recordation of maps or plats and in the Secretary of State’s office. Upon recordation, the map is conclusive as to the location of the boundary.The disputing counties shall divide equally the costs of locating, surveying, marking, and mapping the boundary, unless the court finds that an equal division of the costs would be unjust. In that case the court may determine the division of costs.
Two or more counties may establish the boundary between them pursuant to subsection (a) of this section. Those boundaries are defined by natural monuments such as rivers, streams, and ridgelines. The use of base maps prepared from orthophotography may be used if said natural monuments are visible, which base maps show the monuments of the National Geodetic Survey and North Carolina Coordinate System established pursuant to Chapter 102 of the General Statutes. The orthophotography shall be prepared in compliance with the State’s adopted orthophotography standard. Upon ratification of the location of the boundary determined from orthophotography by the board of commissioners of each county, the map showing the boundary and the monuments of the National Geodetic Survey and North Carolina Coordinate System shall be recorded in the Office of the Register of Deeds of each county and in the Secretary of State’s office. The map shall contain a reference to the date of each resolution of ratification and to the page in the minutes of each board of commissioners where the resolution may be found. Upon recordation, the map is conclusive as to the location of the boundary.

History. 1836, c. 3; R.C., c. 27; Code, s. 721; Rev., s. 1322; C.S., s. 1299; 1925, c. 251; 1973, c. 822, s. 1; 1987 (Reg. Sess., 1988), c. 1037, s. 121; 1997-299, s. 1; 2017-170, s. 2.

Local Modification.

Session Laws 1997-299, s. 1, repealed the local modifications to this section.

Boundaries in Gaston County.

Session Laws 2007-9, s. 1, provides: “(a) The official county lines of Gaston County, and the official township lines of the various townships in said county shall be as indicated on that certain map entitled ‘Gaston County, N. C., map of county and township lines,’ dated April, 1963, surveyed by Findlay, Witheres, McConnoughey, Inc., Registered Surveyors.

“(b) Notwithstanding subsection (a) of this section, the Counties of Gaston and Lincoln shall establish in accordance with G.S. 153A-18 the line between those two counties as provided on that map, but respecting to the extent practicable the line as it has been observed in practice, provided that the line does not make any territory in one county noncontiguous to the remainder of the county. In any case where the tax treatment of a parcel has in practice been divided in some proportion between the two counties without drawing of an actual line, the two counties may divide the properties proportionally between the two counties. Until the line has been established in accordance with this subsection, the line shall continue to be administered as it has been in practice, rather than as provided by subsection (a) of this section. This subsection does not have any effect on the action of the Board of Commissioners of Gaston County in 1979 to alter the boundary between Gastonia and Southpoint Townships.”

In 2010, the General Assembly enacted Session Laws 2010-61, relating to the boundary between Alamance and Orange Counties. This act was followed in 2011 by Session Laws 2011-87 and Session Laws 2011-88, and in 2012 by Session Laws 2012-108, also dealing with the boundary between the two counties.

Specifically, Session Laws 2010-61, s. 1, provides: “The historic boundary line forming Alamance County from Orange County was described and surveyed in 1849. Over the years this line became uncertain, and so pursuant to G.S. 153A-18(c) entitled ‘Uncertain or Disputed Boundary,’ both county boards of commissioners passed resolutions (Alamance County, December 17, 2007, and Orange County, January 18, 2008) to request that the North Carolina Geodetic Survey (hereinafter ‘NCGS’) perform a preliminary resurvey and present a proposed map for consideration by both counties. During the 160 years since the 1849 survey, the exact location of the surveyed line has become uncertain, resulting in unintentional modifications to the boundary line affecting taxation, school attendance, zoning maps, and elections within and among Alamance County, Orange County, and the Town of Mebane.”

Session Laws 2010-61, s. 2, provides that both counties had approved the survey.

Session Laws 2010-61, s. 3, as amended by Session Laws 2011-88, s. 3, provides: “In the 160 years since the initial survey of the Alamance County/Orange County boundary line, Alamance and Orange Counties have entered into multiple taxing agreements that have resulted in properties being taxed in one county by the adjoining county. Other situations have arisen in which children of one county attend school in the adjoining county and voters in one county have voted in the adjoining county. The General Assembly recognizes the difficulties in addressing these issues and authorizes Alamance County and Orange County to maintain the current taxing, elections, education, and any other recognized government functions in place until July 1, 2012.”

Session Laws 2010-61, ss. 4 through 12, as amended by Session Laws 2011-88, ss. 4, 6 and 8, address how those government functions will be addressed after July 1, 2012.

Session Laws 2011-88, ss. 1 and 2, provide: “1. The historic boundary line forming Alamance County from Orange County was described and surveyed in 1849. In the subsequent 160 years, this line became uncertain, resulting in unintentional modifications to the boundary line affecting taxation, school attendance, zoning maps, and elections within and among Alamance County, Orange County, and the Town of Mebane, North Carolina. Pursuant to G.S. 153A-18 , entitled “Uncertain or Disputed Boundary,” both county commissions passed resolutions (Alamance County, December 17, 2007, and Orange County, January 18, 2008) to request that North Carolina Geodetic Survey (NCGS) perform a preliminary resurvey and present a proposed map for consideration by both counties.

“2. The Alamance County Board of Commissioners agreed by vote on April 21, 2008, and Orange County on May 20, 2008, to approve authorizing NCGS to conduct the preliminary survey and the placing of monuments by NCGS consistent with their research to form a boundary baseline. On July 8, 2010, the North Carolina General Assembly enacted S.L. 2010-61, which enabled Alamance County and Orange County to transition properties between the two counties for the purpose of recommending to the North Carolina General Assembly a mutually agreed upon boundary line between the two counties.”

Session Laws 2011-88, ss. 3, 4, 6 and 8, amend Session Laws 2010-61 as noted above.

Session Laws 2011-88, s. 5(a)-(d), provides tax relief to certain property owners affected by a change in the boundary. For Section 5(a)-(d), see editor’s notes under G.S. 105-274 and G.S. 105-381 .

Session Laws 2011-88, ss. 7 and 9 through 12, provide: “7. The establishment of a county boundary line is, pursuant to Section 1 of Article VII of the North Carolina Constitution, the responsibility of the General Assembly. Further, it is vital to the State of North Carolina and all affected local governments that county boundary lines be fixed and any uncertainty as to the location of county boundary lines be resolved. For this reason and in the interest of justice, neither Alamance County nor Orange County, nor any agent, employee, or appointed or elected official thereof, shall be liable to any individual, group, organization, for-profit or not-for-profit business entity of any kind, or governmental entity or agency of any type or kind, for any damages, costs, fees, or fines, and no court action shall be maintained against said counties, officials, employees, and agents for any recommendation, act, failure to act, or conduct related to S.L. 2010-61 or this act and/or the adoption of a fixed boundary line separating the two counties. Except as set out in Section 5 of this act, and effective upon enactment of this act, Alamance County and Orange County and their officials, employees, and agents are released from all liability for any claims made, and no court action shall be maintained against said officials, employees, and agents for any act or failure to act pursuant to the terms of this act or S.L. 2010-61, and no further relief shall be granted or cause of action sustained except as provided herein.

“9. Except as amended by this act, S.L. 2010-61 continues in full force and effect. In the case of any conflict between this act and S.L. 2010-61, this act controls to the extent of the conflict.

“10. Pursuant to Section 1 of Article VII of the North Carolina Constitution, any boundary line between Alamance County and Orange County previously surveyed, recognized, adopted, described, utilized, or ratified is modified as set forth herein upon ratification of this act.

“11. Pursuant to Section 1 of Article VII of the North Carolina Constitution, the official boundary line between Alamance County and Orange County, as described and approved by the Alamance County Board of Commissioners at its regular meeting December 6, 2010, and the Orange County Board of Commissioners at its regular meeting December 14, 2010, is hereby formally recognized and adopted by the North Carolina General Assembly. The nine percent (9%) portion of the boundary line not described and approved by the county commissioners shall be resurveyed pursuant to separate local legislation.

“12. Upon completion of the resurveys in compliance with this act, a complete description of the resurveyed line shall be filed in the office of the Register of Deeds of Alamance County, the office of the Register of Deeds of Orange County, and the Secretary of State, as provided in G.S. 153A-18(a) .”

Session Laws 2011-87, s. 1, which is virtually identical to Session Laws 2011-88, s. 1, provides: “The historic boundary line forming Alamance County from Orange County was described and surveyed in 1849. In the subsequent 160 years, this line became uncertain, resulting in unintentional modifications to the boundary line affecting taxation, school attendance, zoning maps, and elections within and among Alamance County, Orange County, and the Town of Mebane, North Carolina. Pursuant to G.S. 153A-18(a) entitled ‘Uncertain or Disputed Boundary,’ both county boards of commissioners passed resolutions (Alamance County, December 17, 2007, and Orange County, January 18, 2008) to request that North Carolina Geodetic Survey (NCGS) perform a preliminary resurvey and present a proposed map for consideration by both counties.

“Session Laws 2011-87, ss. 2 through 4, provide: “2. The Alamance County Board of Commissioners agreed, by vote on April 21, 2008, and the Orange County Board of Commissioners on May 20, 2008, to approve authorizing NCGS to conduct the preliminary survey and the placing of monuments by NCGS consistent with their research to form a boundary baseline. On July 8, 2010, the North Carolina General Assembly enacted S.L. 2010-61, which enabled Alamance County and Orange County to transition properties between the two counties for the purpose of recommending to the North Carolina General Assembly a mutually agreed upon boundary line between the two counties.

“3. Following an extended process pursuant to the terms of S.L. 2010-61, Alamance County and Orange County have agreed upon and have recommended the General Assembly, through a separate local act, establish and adopt ninety-one percent (91%) of the boundary line separating Alamance County and Orange County.

“4. The Alamance County and Orange County Boards of Commissioners require further time to determine the most appropriate location of the final nine percent (9%) of the boundary line separating Alamance County and Orange County in order to make a final recommendation to the General Assembly. The Alamance County Board of Commissioners at its regular meeting December 6, 2010, and the Orange County Board of Commissioners at its regular meeting December 14, 2010, mutually agreed upon ninety-one percent (91%) of the boundary line. The remaining nine percent (9%) portion of the boundary line not described and approved by the county commissioners at their respective meetings December 6, 2010, and December 14, 2010, shall be resurveyed as set out in Section 5(b) of this act.”

Session Laws 2011-87, s. 5(a) through (c), provides: “(a) The Alamance County and Orange County Boards of Commissioners may review the remaining nine percent (9%) of the boundary separating the two counties and shall determine, in their discretion, the most appropriate location for a boundary line separating the two counties along the remaining nine percent (9%) of the boundary area. The Boards of Commissioners shall make the determination of the most appropriate location for a boundary line on or before October 31, 2011.

“(b) Alamance County and Orange County shall cause areas within the nine percent (9%) of the boundary area to be surveyed for purposes of locating a boundary line. The counties shall not be responsible for the costs of such surveys where owners of property located within the remaining nine percent (9%) of the boundary area request their property, or any portion thereof, be located within a specific county. All such surveys shall be completed by January 31, 2012. A lien in the form of a tax lien under Chapter 105 of the General Statutes may be placed on an owner’s property to recover the costs of any surveys for which the counties have advanced funds, and said lien may be enforced under the laws available for the collection of taxes. A lien for this purpose may also be placed on any property involved in a transition in whole or in part from one county to the other pursuant to S.L. 2010-61 or any other local act regarding the establishment of the Alamance County/Orange County boundary line.

“(c) The Alamance County and Orange County Boards of Commissioners shall, prior to the reconvening of the 2011 Regular Session of the General Assembly in 2012, submit a recommendation in the form of a local bill for the location of a final boundary line along the remaining nine percent (9%) of the area separating the two counties.”

Session Laws 2011-87, s. 5(d) and (e) provide for notice to property owners and an opportunity to be heard.

Session Laws 2011-87, ss. 6 and 7 provide: “6. The establishment of a county boundary line is, pursuant to Section 1 of Article VII of the North Carolina Constitution, the responsibility of the North Carolina General Assembly. Further, it is vital to the State of North Carolina and all affected local governments that county boundary lines be fixed and any uncertainty as to the location of county boundary lines be resolved. For this reason and in the interest of justice, neither Alamance County nor Orange County, nor any agent, employee, or appointed or elected official, shall be liable to any individual, group, organization, for-profit or not-for-profit business entity of any kind, of governmental entity or agency of any type or kind for any damages, costs, fees, or fines, and no court action shall be maintained against said counties, agents, employees, or officials for any recommendation, act, failure to act, or conduct related to S.L. 2010-61, any pending local bill which subsequently becomes law related to the location of the Alamance County/Orange County Boundary Line, this act, or the adoption of a fixed boundary line separating the two counties. Effective upon this act becoming law, Alamance County and Orange County, their officials, employees, and agents are released from all liability for any claims made, and no court action shall be maintained against said counties, officials, employees, and agents for any act or failure to act pursuant to the terms of this act or S.L. 2010-61, and no further relief shall be granted or cause of action sustained except as provided herein.

“7. Pending the establishment of a final boundary line separating Alamance County and Orange County, the two counties shall maintain, in the nine percent (9%) boundary area, the currently recognized boundary line for all governmental purposes, including, but not limited to, taxation, elections, emergency services, zoning, and education.”

Session Laws 2012-108, s. 1, which is also virtually identical to Session Laws 2011-87, s. 1, and Session Laws 2011-88, s. 1, provides: “1. The historic boundary line forming Alamance County from Orange County was described and surveyed in 1849. In the subsequent 160 years, this line became uncertain, resulting in unintentional modifications to the boundary line affecting taxation, school attendance, zoning maps, and elections, within and among Alamance County, Orange County, and the Town of Mebane, North Carolina. Pursuant to G.S. 153A-18(a) entitled ‘Uncertain or Disputed Boundary’, both county boards of commissioners passed resolutions (Alamance County, December 17, 2007 and Orange County, January 18, 2008) to request that North Carolina Geodetic Survey perform a preliminary resurvey and present a proposed map for consideration by both counties.”

Session Laws 2012-108, ss. 2 and 3, provide: “2. In the 2011 session, the General Assembly, through S.L. 2011-88, ratified and adopted ninety-one percent (91%) of the boundary line between Alamance County and Orange County. Also in the 2011 session, the General Assembly, through S.L. 2011-87, authorized the boards of commissioners of Alamance County and Orange County to determine the most appropriate location for the remaining nine percent (9%) of the boundary line.

“3. The General Assembly recognizes the difficulties in addressing the issues associated with adopting a county boundary line and authorizes Alamance County and Orange County to maintain the current taxing, elections, education and any other recognized government functions in place in the transition areas affected by this act, if so needed, until July 1, 2013.”

Session Laws 2012-108, ss. 4 and 6 address how those government functions will be addressed after July 1, 2013.

Session Laws 2012-108, s. 5(a)-(d), provides tax relief to certain property owners affected by a change in the boundary.

Session Laws 2012-108, ss. 7 through 11, provide: “7. The establishment of a county boundary line is, pursuant to Section 1 of Article VII of the North Carolina Constitution, the sole responsibility of the General Assembly. Further, it is vital to the State of North Carolina and all affected local governments that county boundary lines be fixed and any uncertainty as to the location of county boundary lines be resolved. For this reason and in the interest of justice, neither Alamance County nor Orange County, nor any agent, employee, or appointed or elected official thereof, shall be liable to any individual, group, organization, for-profit or not-for-profit business entity of any kind, governmental entity or agency of any type or kind for any damages, costs, fees, or fines, and or court action shall be maintained against said counties, officials, employees, and agents for any recommendation, act, failure to act, or conduct related to S. L. 2010-61, S.L. 2011-88, or this act and/or the adoption of a fixed boundary line separating the two counties. Except as set out in Section 5 of this act, and effective upon this act becoming law, Alamance County and Orange County, their officials, employees, and agents are released from all liability for any claims made, and no court action shall be maintained against said officials, employees, and agents for any act or failure to act pursuant to the terms of this act, S.L. 2011-88, or S.L. 2010-61, and no further relief shall be granted or cause of action sustained except as provided herein.

“8. Should any provision of S.L. 2010-61, as amended by S.L. 2011-88, conflict with any provision of this act, the provisions of this act shall control. Should any line marking the area of the nine percent (9%) reflected in the surveys referenced herein conflict with any line shown on the surveys describing the area of the ninety-one percent (91%), the surveys marking the area of the nine percent (9%) shall control.

“9. Pursuant to Section 1 of Article VII of the North Carolina Constitution, any boundary line between Alamance County and Orange County previously surveyed, recognized, adopted, described, utilized, or ratified, save and except the ninety-one percent (91%) of the boundary line adopted by S.L. 2011-88, is modified as set forth herein upon ratification of this act.

“10. Pursuant to Section 1 of Article VII of the North Carolina Constitution, the official boundary line regarding the remaining nine percent (9%) of the line separating Alamance County and Orange County, as recommended by the Alamance County Board of Commissioners at its meeting of December 6, 2010, and the Orange County Board of Commissioners at its meeting of December 14, 2010, is hereby formally recognized and adopted by the General Assembly.

“11. Upon adoption, the survey plats reflecting the boundary line shall be filed with the Alamance County Register of Deeds, with the Orange County Register of Deeds, and in the office of the Secretary of State as provided in G.S. 153A-18(a) .”

Effect of Amendments.

Session Laws 2017-170, s. 2, effective July 21, 2017, in subsection (a), substituted “the North Carolina Geodetic Survey (NCGS), on a cooperative basis, shall assist counties in defining and monumenting the location of the uncertain or disputed boundary as established in accordance with law” for “they” in the first sentence, added “Upon receiving written request from all counties adjacent to the uncertain or disputed boundary, and rewrote subsection (c).

§ 153A-19. Establishing and naming townships.

A county may by resolution establish and abolish townships, change their boundaries, and prescribe their names, except that no such resolution may become effective during the period beginning January 1, 1998, and ending January 2, 2000, and any resolution providing that the boundaries of a township shall change automatically with changes in the boundaries of a city shall not be effective during that period. The current boundaries of each township within a county 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 current delineation shall be available for public inspection in the office of the clerk.
Any provision of a city charter or other local act which provides that the boundaries of a township shall change automatically upon a change in a city boundary shall not be effective during the period beginning January 1, 1998, and ending January 2, 2000.
The county manager or, where there is no county manager, the chairman of the board of commissioners, shall report township boundaries and changes in those boundaries to the United States Bureau of the Census in the Boundary and Annexations Survey. In responding to the surveys, each county manager or, if there is no manager, chairman of the board of commissioners shall consult with the county board of elections and other appropriate local agencies as to the location of township boundaries, so that the Census Bureau’s mapping of township boundaries does not disagree with any county voting precinct boundaries that may be based on township boundaries.

History. 1868, c. 20, s. 8; Code, s. 707; Rev., s. 1318; C.S., s. 1297; 1973, c. 822, s. 1; 1987, c. 715, s. 1; c. 879, s. 2; 1993, c. 352, s. 1; 1995, c. 423, s. 4.

CASE NOTES

Editor’s Note. —

Some of the cases cited below were decided under corresponding sections of former law.

Townships are within the power and control of the General Assembly, just as are counties, cities, towns and other municipal corporations. It may confer upon them, or any single one of them, corporate powers, with the view to accomplish any lawful purpose. Such powers may be conferred for a single purpose as well as many. Brown v. Commissioners of Hertford, 100 N.C. 92 , 5 S.E. 178, 1888 N.C. LEXIS 156 (1888); Jones v. Commissioners of Person County, 107 N.C. 248 , 12 S.E. 69, 1890 N.C. LEXIS 48 (1890).

Power to Subdivide Territory and Bestow Corporate Functions. —

It is within the power of the legislature to subdivide the territory of the State and invest the inhabitants of such subdivisions with corporate functions. Moreover, it is not essential that such subdivisions be created directly by legislative enactment, certain agencies may be required by statute to establish them. McCormac v. Commissioners of Robeson, 90 N.C. 441 , 1884 N.C. LEXIS 251 (1884).

As to former corporate powers of townships and former boards of township trustees, see Mitchell v. Board of Trustees, 71 N.C. 400 , 1874 N.C. LEXIS 113 (1874); Wallace v. Board of Trustees, 84 N.C. 164 , 1881 N.C. LEXIS 46 (1881); Jones, Gaskill & Co. v. Commissioners of Rowan, 85 N.C. 278 , 1881 N.C. LEXIS 254 (1881); Brown v. Commissioners of Hertford, 100 N.C. 92 , 5 S.E. 178, 1888 N.C. LEXIS 156 (1888); Jones v. Commissioners of Person County, 107 N.C. 248 , 12 S.E. 69, 1890 N.C. LEXIS 48 (1890).

As to liability of trustees for torts, see Price v. Board of Trustees, 172 N.C. 84 , 89 S.E. 1066, 1916 N.C. LEXIS 236 (1916).

Charging of County Officers with Township Duties. —

The townships are constituent parts of the county organization, and the county officers may well be charged with duties and authority in respect to debts they may be allowed by statute to contract. Jones v. Commissioners of Person County, 107 N.C. 248 , 12 S.E. 69, 1890 N.C. LEXIS 48 (1890).

County commissioners are not authorized to issue bonds on the credit of a township for construction of a railroad. Graves v. Commissioners, 135 N.C. 49 , 47 N.E. 134, 47 S.E. 134, 1904 N.C. LEXIS 8 (1904).

County Bonds Not to Be Issued for Road Purposes of One Township or Taxing District. —

While the building of public roads has been held a necessary expense, application of the principle may not be extended to instances where a statute requires the county to issue its bonds for road purposes to obtain aid for a township or local taxing district therein, upon the approval of the voters of the particular district alone, and without benefit to the others. Commissioners of Johnston County v. Lacy, 174 N.C. 141 , 93 S.E. 482, 1917 N.C. LEXIS 46 (1917).

§ 153A-20. Map of electoral districts.

If a county is divided into electoral districts for the purpose of nominating or electing persons to the board of commissioners, the current boundaries of the electoral districts 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 current delineation shall be available for public inspection in the office of the clerk.

History. 1973, c. 822, s. 1.

§ 153A-21. [Repealed]

Repealed by Session Laws 1973, c. 884.

Editor’s Note.

Session Laws 1975, c. 389, applicable only to Robeson County, reenacted this section.

§ 153A-22. Redefining electoral district boundaries.

If a county is divided into electoral districts for the purpose of nominating or electing persons to the board of commissioners, the board of commissioners may find as a fact whether there is substantial inequality of population among the districts.
If the board finds that there is substantial inequality of population among the districts, it may by resolution redefine the electoral districts.
Redefined electoral districts shall be so drawn that the quotients obtained by dividing the population of each district by the number of commissioners apportioned to the district are as nearly equal as practicable, and each district shall be composed of territory within a continuous boundary.
No change in the boundaries of an electoral district may affect the unexpired term of office of a commissioner residing in the district and serving on the board on the effective date of the resolution. If the terms of office of members of the board do not all expire at the same time, the resolution shall state which seats are to be filled at the initial election held under the resolution.
A resolution adopted pursuant to this section shall be the basis of electing persons to the board of commissioners at the first general election for members of the board of commissioners occurring after the resolution’s effective date, and thereafter. A resolution becomes effective upon its adoption, unless it is adopted during the period beginning 150 days before the day of a primary and ending on the day of the next succeeding general election for membership on the board of commissioners, in which case it becomes effective on the first day after the end of the period.
Not later than 10 days after the day on which a resolution becomes effective, the clerk shall file in the Secretary of State’s office, in the office of the register of deeds of the county, and with the chairman of the county board of elections, a certified copy of the resolution.
This section shall not apply to counties where under G.S. 153A-58(3)d. or under public or local act, districts are for residence purposes only, and the qualified voters of the entire county nominate all candidates for and elect all members of the board.

History. 1981, c. 795.

Local Modification.

Dare: 1991, Ex. Sess., c. 2, ss. 4-5.1 (As to applicability and contingency provisions, see 1991 Session Laws, Ex. Sess., c. 2, s. 7); (As to subsection (e)) Carteret: 2012-58, s. 1; Stanly: 2013-361, s. 7.

Editor’s Note.

Session Laws 1993, c. 521, s. 2 provides: “Section 1 of this act supersedes any previous action under G.S. 153A-22 .” Section 1 provides: “Chapter 136, Session Laws of 1991, [relating to expanding and redistricting the Guilford County Board of Commissioners] is reenacted.” Session Laws 2011-407, s. 3(a), effective July 28, 2011, repealed Session Laws 1991, c. 136, as reenacted by Session Laws 1993, c. 521, s. 1.

Session Laws 2011-112, s. 4, provides: “G.S. 153A-22 applies to the Duplin County Board of Commissioners. G.S. 115C-37(i) applies to the Duplin County Board of Education.”

Session Laws 2013-361, s. 7, provides: “Notwithstanding Part 4 of Article 4 of Chapter 153A of the General Statutes, the structure of the Stanly County Board of Commissioners shall not be altered under that Part prior to the return of the 2020 Census. Following the return of the 2020 Census and each Census thereafter, the Stanly County Board of Commissioners may revise the election districts for the Board of Commissioners and the Board of Education. District boundary lines for the two boards shall remain identical. G.S. 153A-22 applies to the Stanly County Board of Commissioners.”

Session Laws 2021-56, s. 1.4, provides: “In each county where the county is divided into electoral districts for the purpose of nominating or electing persons to the board of commissioners, the board of county commissioners shall review and revise its electoral districts in accordance with State and federal law, and adopt a resolution containing the revised electoral districts on or before November 17, 2021. Notwithstanding G.S. 153A-22 , the resolution becomes effective upon its adoption.”

Session Laws 2021-56, s. 1.9, provides: “This act shall not apply to offices elected at large in any municipality where there is an election of municipal officers scheduled for 2021, where less than the entire jurisdiction is eligible to vote for candidates for one or more offices on the 2021, and that municipality has notified the county board of elections at least five business days prior to the opening of the 2021 filing period as provided in Article 23 or 24 of Chapter 163 of the General Statutes for the method of election for that municipality. If the county board of elections is so notified, the county board of elections shall open the filing period for the offices elected at large only for that municipality and conduct the election in 2021 in accordance with that municipality’s charter and Chapter 163 of the General Statutes.”

§§ 153A-23, 153A-24.

Reserved for future codification purposes.

Article 4. Form of Government.

Part 1. General Provisions.

§ 153A-25. Qualifications for appointive office.

The board of commissioners may fix qualifications for any appointive office, including a requirement that a person serving in such an office reside within the county. The board may not waive qualifications fixed by law for an appointive office but may fix additional qualifications for that office.

History. 1973, c. 822, s. 1.

Local Modification.

(As to Article 4 of Chapter 153A) Dare: 2009-1; (As to Article 4 of Chapter 153A) Stanly: 2013-361, s. 7; (As to Article 4 of Chapter 153A) Watauga: 2009-1.

§ 153A-26. Oath of office.

Each person elected by the people or appointed to a county office shall, before entering upon the duties of the office, take and subscribe the oath of office prescribed in Article VI, Sec. 7 of the Constitution. The oath of office shall be administered by some person authorized by law to administer oaths and shall be filed with the clerk to the board of commissioners.

On the first Monday in December following each general election at which county officers are elected, the persons who have been elected to county office in that election shall assemble at the regular meeting place of the board of commissioners. At that time each such officer shall take and subscribe the oath of office. An officer not present at this time may take and subscribe the oath at a later time.

History. 1868, c. 20, s. 8; 1874-5, c. 237, s. 3; Code, ss. 707, 708; 1895, c. 135, ss. 3, 4; Rev., ss. 1316, 1318; C.S., ss. 1295, 1297; 1965, c. 26; 1973, c. 822, s. 1; 2015-24, s. 1.

Effect of Amendments.

Session Laws 2015-24, s. 1, effective October 1, 2015, added “to the board of commissioners” at the end of the first paragraph.

§ 153A-27. Vacancies on the board of commissioners.

If a vacancy occurs on the board of commissioners, the remaining members of the board shall appoint a qualified person to fill the vacancy. If the number of vacancies on the board is such that a quorum of the board cannot be obtained, the chairman of the board shall appoint enough members to make up a quorum, and the board shall then proceed to fill the remaining vacancies. If the number of vacancies on the board is such that a quorum of the board cannot be obtained and the office of chairman is vacant, the clerk of superior court of the county shall fill the vacancies upon the request of any remaining member of the board or upon the petition of any five registered voters of the county. If for any other reason the remaining members of the board do not fill a vacancy within 60 days after the day the vacancy occurs, the clerk shall immediately report the vacancy to the clerk of superior court of the county. The clerk of superior court shall, within 10 days after the day the vacancy is reported to him, fill the vacancy.
If the member being replaced was serving a two-year term, or if the member was serving a four-year term and the vacancy occurs later than 60 days before the general election for county commissioner held after the first two years of the term, the appointment to fill the vacancy is for the remainder of the unexpired term. Otherwise, the term of the person appointed to fill the vacancy extends to the first Monday in December next following the first general election for county commissioner held more than 60 days after the day the vacancy occurs; at that general election, a person shall be elected to the seat vacated, either to the remainder of the unexpired term or, if the term has expired, to a full term.
To be eligible for appointment to fill a vacancy, a person must (i) be a member of the same political party as the member being replaced, if that member was elected as the nominee of a political party, and (ii) be a resident of the same district as the member being replaced, if the county is divided into electoral districts. The board of commissioners or the clerk of superior court, as the case may be, shall consult the county executive committee of the appropriate political party before filling a vacancy, but neither the board nor the clerk of the superior court is bound by the committee’s recommendation.

History. Code, s. 719; 1895, c. 135, s. 7; Rev., s. 1314; 1909, c. 490, s. 1; C.S., s. 1294; 1959, c. 1325; 1965, cc. 239, 382; 1967, cc. 7, 424, 439, 1022; 1969, cc. 82, 222; 1971, c. 743, s. 1; 1973, c. 822, s. 1; 1985, c. 563, ss. 7.3, 7.4; 2017-2, s. 1.

Cross References.

As to counties not subject to this section, see G.S. 153A-27.1 .

Editor’s Note.

Session Laws 2017-2, s. 3, made the amendments to this section by Session Laws 2017-2, s. 1, effective March 16, 2017, and applicable to vacancy elections held on or after that date.

Effect of Amendments.

Session Laws 2017-2, s. 1, added designation (a) to the existing text; added subsection (b), added “for county commissioner” preceding “held after the first two years” and following “next following the first general election”; and added subsection (c). For effective date and applicability, see editor’s note.

CASE NOTES

Authority to Accept Resignation. —

Under former statute which authorized the clerk of the superior court to fill vacancies on boards of commissioners in all cases, it was held that a tender of resignation by a county commissioner to the clerk of the superior court was a tender to the proper authority. While the mere filing of the resignation did not vacate the office, its acceptance by the clerk was final, and after its acceptance the commissioner had no power to withdraw it. Rockingham County v. Luten Bridge Co., 35 F.2d 301, 1929 U.S. App. LEXIS 2948 (4th Cir. 1929).

§ 153A-27.1. Vacancies on board of commissioners in certain counties.

If a vacancy occurs on the board of commissioners, the remaining members of the board shall appoint a qualified person to fill the vacancy. If the number of vacancies on the board is such that a quorum of the board cannot be obtained, the chairman of the board shall appoint enough members to make up a quorum, and the board shall then proceed to fill the remaining vacancies. If the number of vacancies on the board is such that a quorum of the board cannot be obtained and the office of chairman is vacant, the clerk of superior court of the county shall fill the vacancies upon the request of any remaining member of the board or upon the petition of any registered voters of the county.
If the member being replaced was serving a two-year term, or if the member was serving a four-year term and the vacancy occurs later than 60 days before the general election for county commissioner held after the first two years of the term, the appointment to fill the vacancy is for the remainder of the unexpired term. Otherwise, the term of the person appointed to fill the vacancy extends to the first Monday in December next following the first general election for county commissioner held more than 60 days after the day the vacancy occurs; at that general election, a person shall be elected to the seat vacated for the remainder of the unexpired term.
To be eligible for appointment to fill a vacancy, a person must (i) be a member of the same political party as the member being replaced, if that member was elected as the nominee of a political party, and (ii) be a resident of the same district as the member being replaced, if the county is divided into electoral districts.
If the member who vacated the seat was elected as a nominee of a political party, the board of commissioners, the chairman of the board, or the clerk of superior court, as the case may be, shall consult the county executive committee of the appropriate political party before filling the vacancy, and shall appoint the person recommended by the county executive committee of the political party of which the commissioner being replaced was a member, if the party makes a recommendation within 30 days of the occurrence of the vacancy.
Whenever because of G.S. 153A-58(3)b. or because of any local act, only the qualified voters of an area which is less than the entire county were eligible to vote in the general election for the member whose seat is vacant, the appointing authority must accept the recommendation only if the county executive committee restricted voting to committee members who represent precincts all or part of which were within the territorial area of the district of the county commissioner.
The provisions of any local act which provides that a county executive committee of a political party shall fill any vacancy on a board of county commissioners are repealed.
Counties subject to this section are not subject to G.S. 153A-27 .
This section shall apply only in the following counties: Alamance, Alexander, Alleghany, Avery, Beaufort, Brunswick, Buncombe, Caldwell, Carteret, Cherokee, Clay, Cleveland, Cumberland, Dare, Davidson, Davie, Forsyth, Graham, Guilford, Harnett, Haywood, Henderson, Hyde, Jackson, Lee, Lincoln, Macon, Madison, McDowell, Mecklenburg, Moore, Onslow, Pender, Polk, Randolph, Rockingham, Rutherford, Sampson, Stanly, Stokes, Transylvania, and Yancey.

History. 1981, c. 763, ss. 6, 14; c. 830; 1983, c. 418; 1985, c. 563, s. 7.2; 1987, c. 196, s. 1; 1989, c. 296; c. 497, s. 2; 1991, c. 395, s. 1; c. 558, s. 1; 1995 (Reg. Sess., 1996), c. 683, s. 1; 1997-88, s. 1; 2009-32, s. 1; 2011-126, s. 2; 2014-6, s. 5(a); 2014-92, s. 2(a); 2017-2, s. 2; 2019-5, s. 2(b); 2019-102, s. 1(a).

Local Modification.

Wake: 2015-4, ss. 1(a), 2.

Editor’s Note.

Session Laws 2017-2, s. 3, made the insertion of “for county commissioner” twice in subsection (b) by Session Laws 2017-2, s. 2, effective March 16, 2017, and applicable to vacancy elections held on or after that date.

Session Laws 2019-102, s. 1(c), made the amendments to this section by Session Laws 2019-102, s. 1(a), applicable to vacancies filled on or after July 10, 2019.

Effect of Amendments.

Session Laws 2009-32, s. 1, effective May 21, 2009, inserted “Lee” in subsection (h).

Session Laws 2011-126, s. 2, effective June 15, 2011, and applicable o vacancies occurring on or after that date, deleted “Wake” preceding “and Yancey.”

Session Laws 2014-6, s. 5(a), effective June 12, 2014, inserted “Harnett” in subsection (h).

Session Laws 2014-92, s. 2(a), effective December 1, 2014, deleted “Cabarrus” following “Burke” in subsection (h). See Editor’s note for applicability.

Session Laws 2017-2, s. 2, added “for county commissioner” twice in subsection (b). For effective date and applicability, see editor’s note.

Session Laws 2019-5, s. 2(b), effective March 19, 2019, deleted “Burke” following “Buncombe” in subsection (h).

Session Laws 2019-102, s. 1(a), effective July 10, 2019, added “Onslow” in subsection (h). For applicability, see Editor’s note.

OPINIONS OF ATTORNEY GENERAL

For a discussion of the proper authority and procedures for appointing an interim county tax collector, see opinion of Attorney General to The Honorable Charles Beall, North Carolina House of Representatives, 1998 N.C. Op. Att'y Gen. 35 (8/5/98).

§ 153A-28. Compensation of board of commissioners.

The board of commissioners may fix the compensation and allowances of the chair and other members of the board by inclusion of the compensation and allowances in and adoption of the budget ordinance. In addition, if the chair or any other member of the board becomes a full-time county official, pursuant to G.S. 153A-81 or 153A-84, the compensation and allowances may be adjusted at any time during that person’s service as a full-time official, for the duration of that service.
In addition to any other enforcement available, the finance officer of the county shall garnish compensation paid under this section to any chair or other board member to collect any unpaid monies due to the county for county services until such debt is paid in full using the procedure for attachment and garnishment set forth in G.S. 105-368 as if unpaid monies due to the county for county services 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 subsection.

History. Code, s. 709; Rev., s. 2785; 1907, c. 500; C.S., s. 3918; 1969, c. 180, s. 1; 1971, c. 1125, s. 1; 1973, c. 822, s. 1; 2021-191, s. 2(a).

Editor's Note.

Session Laws 2021-191, s. 2(c), made the amendments to this section by Session Laws 2021-191, s. 2(a), effective December 9, 2021, and applicable to any compensation paid in accordance with G.S. 153A-28 or G.S. 160A-64 on or after that date.

Effect of Amendments.

Session Laws 2021-191, s. 2(a), designated the existing provisions as subsection (a); in subsection (a), substituted “chair” for “chairman” twice, and, in the second sentence, substituted “the compensation” for “his compensation” and substituted “that person’s service” for “his service”; and added subsection (b). For effective date and applicability, see editor's note.

CASE NOTES

Erroneous But Innocent Mileage Allowance. —

Where a board of county commissioners audited in favor of its members for mileage, to which they were not entitled, and it was found as a fact that they did so under advice and without any corrupt or fraudulent motive, it was held that the members of the board were not indictable either under G.S. 14-234 or at common law. State v. Norris, 111 N.C. 652 , 16 S.E. 2, 1892 N.C. LEXIS 233 (1892) (decided under former law).

OPINIONS OF ATTORNEY GENERAL

Authority of the county commissioners to amend the county budget to raise or lower their compensation at any time during the fiscal year is limited by their authority to fix their compensation in the adoption of the annual budget. See opinion of Attorney General to Mr. James C. Fox, New Hanover County Attorney, 42 N.C.A.G. 132 (1972), issued under former law.

§ 153A-29. [Repealed]

Repealed by Session Laws 1975, c. 514, s. 17.

§ 153A-30. Withholding compensation; money judgment against board member.

In addition to any other enforcement available, the finance officer of a county that obtains a final judgment awarding monetary damages against an elected or appointed member of the board of commissioners, 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. 2.

Cross References.

As to withholding of compensation to enforce money judgments against members of city councils, see G.S. 160A-64.1 .

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.

§§ 153A-31 through 153A-33.

Reserved for future codification purposes.

Part 2. Structure of the Board of Commissioners.

§ 153A-34. Structure of boards of commissioners.

Each county is governed by a board of commissioners. The structure and manner of election of the board of commissioners in each county shall remain as it is on February 1, 1974, until changed in accordance with law.

History. Rev., s. 1311; C.S., s. 1292; 1973, c. 822, s. 1.

Editor’s Note.

Session Laws 1973, c. 822, s. 2, provided, in part, that the repeal of former G.S. 153-4 and 153-5 did not affect in any way the structure or manner of election of any board of county commissioners nor the structure or manner of election of which was established by those sections, and that each board of commissioners would continue to have the same structure and manner of election as it had on the effective date of the 1973 act until that structure or manner of election was changed in accordance with law.

Legal Periodicals.

For note on one man, one vote as applied to local governing bodies, see 47 N.C.L. Rev. 413 (1969).

CASE NOTES

Editor’s Note. —

Some of the cases cited below were decided under corresponding sections of former law.

Board of commissioners of a county has a perpetual existence, continued by members who succeed each other, and the body remains the same, notwithstanding a change in the individuals who compose it. Pegram v. Commissioners of Cleveland County, 65 N.C. 114 , 1871 N.C. LEXIS 35 (1871).

Powers of Board of Commissioners. —

The board of commissioners in a county possesses only those powers which have been prescribed by statute and those necessarily implied by law, and no others. This is the general rule. Fidelity & Deposit Co. v. Fleming, 132 N.C. 332 , 43 S.E. 899, 1903 N.C. LEXIS 289 (1903).

Powers of De Facto Board. —

An old board of commissioners, holding over as de facto officers, has the right and duty of performing, to the fullest extent, all the appropriate functions of office. State ex rel. Jones v. Jones, 80 N.C. 127 , 1879 N.C. LEXIS 38 (1879).

Exercise of Powers by Board as Exercise by County. —

The board’s exercise of statutory powers is, in contemplation of law, the exercise of such powers by the county. Board of Comm'rs v. Hanchett Bond Co., 194 N.C. 137 , 138 S.E. 614, 1927 N.C. LEXIS 32 (1927).

Powers to Be Exercised by Majority. —

A majority of the commissioners constitute the legal body, and generally a majority of the members of the legally organized body can exercise the powers delegated to the county. Cleveland Cotton Mills v. Commissioners of Cleveland County, 108 N.C. 678 , 13 S.E. 271, 1891 N.C. LEXIS 127 (1891).

There is no grade among the duties and powers of county commissioners, and no preference is given to one over another. Long v. Commissioners of Richmond County, 76 N.C. 273 , 1877 N.C. LEXIS 229 (1877).

The board of commissioners has the power and duty of auditing and passing upon the validity of claims. Reed v. Farmer, 211 N.C. 249 , 189 S.E. 882, 1937 N.C. LEXIS 51 (1937) (citing) Martin v. Clark, 135 N.C. 178 , 47 S.E. 397, 1904 N.C. LEXIS 20 (1904).

Remedy for Failure of Board to Act on Claim. —

If the board of commissioners refuses to audit or act upon a claim, mandamus will lie to compel them to do so. If after a hearing the board refuses to allow or issue a warrant for its payment, an action will lie against the commissioners to establish the debt and for such other relief as the party may be entitled to. Reed v. Farmer, 211 N.C. 249 , 189 S.E. 882, 1937 N.C. LEXIS 51 (1937) (citing) Martin v. Clark, 135 N.C. 178 , 47 S.E. 397, 1904 N.C. LEXIS 20 (1904).

Mandamus will lie against county commissioners who refuse to issue bonds, as required by an act of the legislature. Jones v. Commissioners, 137 N.C. 579 , 50 S.E. 291, 1905 N.C. LEXIS 211 (1905).

Who Must Obey Mandamus When Membership of Board Changes Between Order and Service Thereof. —

When a writ of mandamus is obtained against a board of commissioners, and there is a change in the individual members between the time when the writ is ordered and the time when it is served, those who compose the board at the time of service must obey it. Pegram v. Commissioners of Cleveland County, 65 N.C. 114 , 1871 N.C. LEXIS 35 (1871).

Correction of Clerical Error in Record by Board. —

Where the record of the board of county commissioners, through a clerical error, stated that a twenty cents (20¢) tax levy for general county purposes was on $100.00 valuation of property, this error could subsequently be corrected by the board, at its own instance, to correctly show that in fact the levy was actually made for 15 cents for general county purposes, 5 cents thereof being for the improvement of the courthouse and county home, and thus within the constitutional requirement. Norfolk S.R.R. v. Forbes, 188 N.C. 151 , 124 S.E. 132, 1924 N.C. LEXIS 29 (1924).

Retaining the consideration of an ultra vires contract can impose no contractual liability upon a municipal corporation of this character. Berlin Iron Bridge Co. v. Board of Comm'rs, 111 N.C. 317 , 16 S.E. 314, 1892 N.C. LEXIS 176 (1892) (citing) Weir v. Page, 109 N.C. 220 , 13 S.E. 773, 1891 N.C. LEXIS 201 (1891).

A court has no power to interfere with the domestic administration of affairs of a county, so long as the board of commissioners acts intra vires. Long v. Commissioners of Richmond County, 76 N.C. 273 , 1877 N.C. LEXIS 229 (1877).

As to remedies to try title to the office of county commissioner, see Lyon v. Board of Comm'rs, 120 N.C. 237 , 26 S.E. 929, 1897 N.C. LEXIS 46 (1897); State ex rel. Houghtalling v. Taylor, 122 N.C. 141 , 122 N.C. 171 , 29 S.E. 101, 1898 N.C. LEXIS 210 (1898). See also G.S. 1-515 .

Personal Liability of Commissioners as Imposed by Legislature. —

Where the legislature has created certain duties to be performed by county commissioners, and has expressly imposed a personal liability upon their failure to perform some of them but not others, such liability only attaches where it is expressly so declared. Fore v. Feimster, 171 N.C. 551 , 88 S.E. 977, 1916 N.C. LEXIS 126 (1916).

Personal Liability for Negligent Performance or Omission of Ministerial Duties. —

County commissioners are held to an individual liability in the negligent performance of, or negligent omission to perform, a purely ministerial duty, to a person specially injured thereby, when the means to act are available and the matter does not involve the exercise of a discretionary or judicial power conferred upon them by statute. Hipp v. Farrell, 169 N.C. 551 , 86 S.E. 570, 1915 N.C. LEXIS 262 (1915).

Personal Liability for Judicial and Discretionary Acts. —

Public officers are not personally liable to persons specially injured by their acts done in the exercise of judicial or discretionary powers conferred on them by statute, unless it is alleged and shown that in doing the acts complained of they did so corruptly and with malice. Hipp v. Farrell, 169 N.C. 551 , 86 S.E. 570, 1915 N.C. LEXIS 262 (1915).

§§ 153A-35 through 153A-38.

Reserved for future codification purposes.

Part 3. Organization and Procedures of the Board of Commissioners.

§ 153A-39. Selection of chairman and vice-chairman; powers and duties.

On:

The first Monday in December of each even-numbered year; and
Its first regular meeting in December of each odd-numbered year,
the board of commissioners shall choose one of its members as chairman for the ensuing year, unless the chairman is elected as such by the people or otherwise designated by law. The board shall also at that time choose a vice-chairman to act in the absence or disability of the chairman. If the chairman and the vice-chairman are both absent from a meeting of the board, the members present may choose a temporary chairman.

The chairman is the presiding officer of the board of commissioners. Unless excused by rule of the board, the presiding officer has the duty to vote on any question before the board, but he has no right to break a tie vote in which he participated.

History. Code, s. 706; Rev., s. 1317; C.S., s. 1296; 1945, c. 132; 1951, c. 904, s. 1; 1961, c. 154; 1967, c. 617, s. 1; 1969, c. 349, s. 1; c. 1036; 1973, c. 822, s. 1; 1993, c. 95, s. 1.

§ 153A-40. Regular and special meetings.

The board of commissioners shall hold a regular meeting at least once a month, and may hold more frequent regular meetings. The board may by resolution fix the time and place of its regular meetings. If such a resolution is adopted, at least 10 days before the first meeting to which the resolution is to apply, the board shall cause a copy of it to be posted on the courthouse bulletin board and a summary of it to be published. If no such resolution is adopted, the board shall meet at the courthouse on the first Monday of each month, or on the next succeeding business day if the first Monday is a holiday.If use of the courthouse or other designated regular meeting place is made temporarily impossible, inconvenient, or unwise, the board may change the time or place or both of a regular meeting or of all regular meetings within a specified period of time. The board shall cause notice of the temporary change to be posted at or near the regular meeting place and shall take any other action it considers helpful in informing the public of the temporary change.The board may adjourn a regular meeting from day to day or to a day certain until the business before the board is completed.
The chairman or a majority of the members of the board may at any time call a special meeting of the board of commissioners by signing a written notice stating the time and place of the meeting and the subjects to be considered. The person or persons calling the meeting shall cause the notice to be delivered to the chairman and each other member of the board or left at the usual dwelling place of each at least 48 hours before the meeting and shall cause a copy of the notice to be posted on the courthouse bulletin board at least 48 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 those not present have signed a written waiver.If a special meeting is called to deal with an emergency, the notice requirements of this subsection do not apply. However, the person or persons calling such a special meeting shall take reasonable action to inform the other members and the public of the meeting. Only business connected with the emergency may be discussed at a meeting called pursuant to this paragraph.In addition to the procedures set out in this subsection, a person or persons calling a special or emergency meeting of the board of commissioners shall comply with the notice requirements of Article 33B of General Statutes Chapter 143.
The board of commissioners shall hold all its meetings within the county except:
1. In connection with a joint meeting of two or more public bodies; provided, however, that such a meeting shall be held within the boundaries of the political subdivision represented by the members of one of the public bodies participating;
2. In connection with a retreat, forum, or similar gathering held solely for the purpose of providing members of the board with general information relating to the performance of their public duties; provided, however, that members of the board of commissioners shall not vote upon or otherwise transact public business while in attendance at such a gathering;
3. In connection with a meeting between the board of commissioners and its local legislative delegation during a session of the General Assembly; provided, however, that at any such meeting the members of the board of commissioners may not vote upon or otherwise transact public business except with regard to matters directly relating to legislation proposed to or pending before the General Assembly;
4. While in attendance at a convention, association meeting or similar gathering; provided, however, that any such meeting may be held solely to discuss or deliberate the board’s position concerning convention resolutions, elections of association officers and similar issues that are not legally binding upon the board of commissioners or its constituents.All meetings held outside the county shall be deemed “official meetings” within the meaning of G.S. 143-318.10(d).

History. Code, s. 706; Rev., s. 1317; C.S., s. 1296; 1945, c. 132; 1951, c. 904, s. 1; 1961, c. 154; 1967, c. 617, s. 1; 1969, c. 349, s. 1; c. 1036; 1973, c. 822, s. 1; 1977, 2nd Sess., c. 1191, s. 6; 1985, c. 745.

Editor’s Note.

Article 33B of Chapter 143, referred to in subsection (b) of this section, was repealed. For present provisions concerning meetings of public bodies, see Chapter 143, Article 33C (G.S. 143-318.9 through 143-318.18.)

Legal Periodicals.

For survey of 1978 administrative law, see 57 N.C.L. Rev. 831 (1979).

CASE NOTES

Statute setting days for meetings was directory and was intended to forbid commissioners from receiving compensation for attendance on days other than those of regular meetings. It did not disable the commissioners from acting at other times on due notice to all concerned. People ex rel. McNeill v. Green, 75 N.C. 329 , 1876 N.C. LEXIS 288 (1876) (decided under former law).

Commissioners elected by county commissioners at an adjourned meeting subject to the call of the chairman were at least de facto officers, whose title could not be collaterally attacked. Tripp v. Commissioners of Pitt County, 158 N.C. 180 , 73 S.E. 896, 1912 N.C. LEXIS 16 (1912) (decided under former law).

§ 153A-41. Procedures.

The board of commissioners may adopt its own rules of procedure, in keeping with the size and nature of the board and in the spirit of generally accepted principles of parliamentary procedure.

History. Code, s. 706; Rev., s. 1317; C.S., s. 1296; 1945, c. 132; 1951, c. 904, s. 1; 1961, c. 154; 1967, c. 617, s. 1; 1969, c. 349, s. 1; c. 1036; 1973, c. 822, s. 1.

§ 153A-42. Minutes to be kept; ayes and noes.

The clerk shall keep full and accurate minutes of the proceedings of the board of commissioners, which shall be available for public inspection. The clerk shall record the results of each vote in the minutes; and upon the request of any member of the board, the ayes and noes upon any question shall be taken and recorded.

History. Code, s. 712; 1905, c. 530; Rev., s. 1325; C.S., s. 1310; 1953, c. 973, s. 3; 1973, c. 822, s. 1.

CASE NOTES

Record of a board of county commissioners may be corrected nunc pro tunc to speak the truth by the board itself. Norfolk S.R.R. v. Reid, 187 N.C. 320 , 121 S.E. 534, 1924 N.C. LEXIS 275 (1924) (decided under former law).

Where county commissioners exercised their statutory authority to loan county funds to the State Highway Commission (now the Board of Transportation), anticipating the allotment of State funds for the building of highways within the county, and lawfully contracted for that purpose, they could not, after the passage of a later act taking away this power, materially change the contract, but the county commissioners nunc pro tunc could correct the entries on their minutes theretofore duly passed and entered of record so as to make the entry speak the truth as to what had been regularly done, to this end parol evidence being admissible, the time of the correction so made relating back to the time the entry should have been correctly made. Oliver v. Board of Comm'rs, 194 N.C. 380 , 139 S.E. 767, 1927 N.C. LEXIS 108 (1927) (decided under former law).

§ 153A-43. Quorum.

A majority of the membership of the board of commissioners constitutes a quorum. The number required for a quorum is not affected by vacancies. If a member has withdrawn from a meeting without being excused by majority vote of the remaining members present, he shall be counted as present for the purposes of determining whether a quorum is present. The board may compel the attendance of an absent member by ordering the sheriff to take the member into custody.
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. Code, s. 706; Rev., s. 1317; C.S., s. 1296; 1945, c. 132; 1951, c. 904, s. 1; 1961, c. 154; 1967, c. 617, s. 1; 1969, c. 349, s. 1; c. 1036; 1973, c. 822, s. 1; 2020-3, s. 4.31(e).

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(e), 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(e), added subsection (b). For effective date and applicability, see editor’s note.

§ 153A-44. Members excused from voting.

The board may excuse a member from voting, but only upon questions involving 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 , 153A-340(g), or 160A-388(e)(2). For purposes of this section, the question of the compensation and allowances of members of the board does not involve a member’s own financial interest or official conduct.

History. Code, s. 706; Rev., s. 1317; C.S., s. 1296; 1945, c. 132; 1951, c. 904, s. 1; 1961, c. 154; 1967, c. 617, s. 1; 1969, c. 349, s. 1; c. 1036; 1973, c. 822, s. 1; 2001-409, s. 8; 2005-426, s. 5.1(b); 2013-126, s. 6.

Effect of Amendments.

Session Laws 2005-426, s. 5.1(b), effective January 1, 2006, substituted “G.S. 14-234, 153A-340(g), or 153A-345(e1)” for “G.S. 14-234.”

OPINIONS OF ATTORNEY GENERAL

Any situation in which a county commissioner has a personal economic interest would disqualify that commissioner from voting. See opinion of Attorney General to C. Preston Cornelius, Senior Resident Superior Court Judge, 60 N.C. Op. Att'y Gen. 50 (1990).

A county commissioner who is also chairman of the county social services board can present the department of social services budget to the county commissioners and thereafter participate and vote as a member of the county commissioners regarding the approval or disapproval of that budget, as the budget for the department of social services would not ordinarily involve an economic conflict of interest. See opinion of Attorney General to C. Preston Cornelius, Senior Resident, Superior Court Judge, 60 N.C. Op. Att'y Gen. 50 (1990).

The chairman of the county social services board, who is also a county commissioner, can participate in discussions and vote at county commission meetings in matters pertaining to personnel and the operation of the county department of social services. It is apparent that the legislature contemplates county commissioners serving on other boards and commissions as an extension of commissioner duties, and that such service will not ordinarily disqualify the commissioners from participating in discussions and voting at county commission meetings. See opinion of Attorney General to C. Preston Cornelius, Senior Resident, Superior Court Judge, 60 N.C. Op. Att'y Gen. 50 (1990).

§ 153A-45. Adoption of ordinances.

To be adopted at the meeting at which it is first introduced, an ordinance or any action having the effect of an ordinance (except the budget ordinance, any bond order, or any other ordinance on which a public hearing must be held before the ordinance may be adopted) must receive the approval of all the members of the board of commissioners. If the ordinance is approved by a majority of those voting but not by all the members of the board, or if the ordinance is not voted on at that meeting, it shall be considered at the next regular meeting of the board. If it then or at any time thereafter within 100 days of its introduction receives a majority of the votes cast, a quorum being present, the ordinance is adopted.

History. 1963, c. 1060, ss. 1, 11/2; 1965, cc. 388, 567, 1083, 1158; 1967, c. 495, s. 2; 1969, c. 36, s. 1; 1971, c. 702, ss. 1-3; 1973, c. 822, s. 1.

CASE NOTES

For discussion of the distinction between an ordinance and a resolution, see Pittman v. Wilson County, 839 F.2d 225, 1988 U.S. App. LEXIS 2118 (4th Cir. 1988).

Personnel Rules. —

Absent evidence that “personnel resolution” containing “rules and regulations” for the dismissal of county employees, incorporated in an employee handbook, was passed with the formality required for the enactment of an ordinance, the court would conclude that it was not an ordinance. Pittman v. Wilson County, 839 F.2d 225, 1988 U.S. App. LEXIS 2118 (4th Cir. 1988).

§ 153A-46. Franchises.

No ordinance making a grant, renewal, extension, or amendment of any franchise may be finally adopted until it has been passed at two regular meetings of the board of commissioners. No such grant, renewal, extension, or amendment may be made except by ordinance.

History. 1973, c. 822, s. 1.

§ 153A-47. Technical ordinances.

Subject to G.S. 143-138(e), a county may in an ordinance adopt by reference a published technical code or a standard or regulation promulgated by a public agency. A technical code or standard or regulation so adopted has the force of law in any area of the county in which the ordinance is applicable. An official copy of a technical code or standard or regulation adopted by reference shall be available for public inspection in the office of the clerk and need not be filed in the ordinance book.

History. 1973, c. 822, s. 1.

CASE NOTES

Ordinance Cannot Be Waived. —

As a County Zoning Ordinance had the force of law, its provisions could not be waived. A county planning board or official had no authority to modify the provisions of the Zoning Ordinance by interpretation; thus, the trial court properly reversed the Board of Commissioner’s approval of a property owner’s rezoning requests. Murdock v. Chatham County, 198 N.C. App. 309, 679 S.E.2d 850, 2009 N.C. App. LEXIS 1164 (2009).

§ 153A-48. Ordinance book.

The clerk shall maintain an ordinance book, separate from the minute book of the board of commissioners. The ordinance book shall be indexed and shall be available for public inspection in the office of the clerk. Except as provided in this section and in G.S. 153A-47 , each county ordinance shall be filed and indexed in the ordinance book.

The budget ordinance and any amendments thereto, any bond order, and any other ordinance of limited interest or transitory nature may be omitted from the ordinance book. However, the ordinance book shall contain a section showing the caption of each omitted ordinance and the page in the commissioners’ minute book at which the ordinance may be found.

If a county adopts and issues a code of its ordinances, county ordinances need be recorded and indexed in the ordinance book only until they are placed in the codification.

History. 1963, c. 1060, ss. 1, 11/2; 1965, cc. 388, 567, 1083, 1158; 1967, c. 495, s. 2; 1969, c. 36, s. 1; 1971, c. 702, ss. 1-3; 1973, c. 822, s. 1.

CASE NOTES

For discussion of the distinction between an ordinance and a resolution, see Pittman v. Wilson County, 839 F.2d 225, 1988 U.S. App. LEXIS 2118 (4th Cir. 1988).

Personnel Rules. —

§ 153A-49. Code of ordinances.

A county may 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 at least annually, unless there have been no additions to or modifications of the code during the year.

A code may consist of two 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, and the installation of cooling and heating equipment; ordinances regarding the use of public utilities, buildings, or facilities operated by the county; the zoning ordinance; the subdivision control ordinance; and other similar ordinances designated as technical ordinances by the board of commissioners. The board may omit from the code the budget ordinance, any bond orders, and other designated classes of ordinances of limited interest or transitory nature, but the code shall clearly describe the classes of ordinances omitted from it.

The board of commissioners may provide that ordinances (i) establishing or amending the boundaries of county zoning areas or (ii) establishing or amending the boundaries of zoning districts shall be codified by appropriate entries upon official map books to be retained permanently in the office of the clerk or some other county office generally accessible to the public.

History. 1973, c. 822, s. 1; 2014-3, s. 12.3(e).

Editor’s Note.

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(e), deleted “the privilege license tax ordinance” preceding “and other similar ordinances” in the second sentence of the second paragraph. For effective date and applicability, see Editor’s note.

§ 153A-50. Pleading and proving county ordinances.

County ordinances shall be pleaded and proved under the rules and procedures of G.S. 160A-79 . References to G.S. 160A-77 and G.S. 160A-78 appearing in G.S. 160A-79 are deemed, for purposes of this section, to refer to G.S. 153A-49 and G.S. 153A-48 , respectively.

History. 1973, c. 822, s. 1.

§ 153A-51.

Reserved for future codification purposes.

§ 153A-52. Conduct of public hearing.

The board of commissioners may hold public hearings at any place within the county. The board 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 position, (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 board may continue a public hearing without further advertisement. If a public hearing is set for a given date and a quorum of the board is not then present, the board shall continue the hearing without further advertisement until its next regular meeting.

History. 1973, c. 822, s. 1.

§ 153A-52.1. Public comment period during regular meetings.

The board of commissioners shall provide at least one period for public comment per month at a regular meeting of the board. The board 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 board 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. 2.

§ 153A-53. Ethics.

The board of commissioners shall adopt a resolution or policy containing a code of ethics, as required by G.S. 160A-86 .
All members of the board of commissioners, whether elected or appointed, shall receive the ethics education required by G.S. 160A-87 .

History. 2009-403, s. 4.

§§ 153A-54 through 153A-57.

Reserved for future codification purposes.

Part 4. Modification in the Structure of the Board of Commissioners.

§ 153A-58. Optional structures.

A county may alter the structure of its board of commissioners by adopting one or any combination of the options prescribed by this section.

Number of members of the board of commissioners: The board may consist of any number of members not less than three, except as limited by subdivision (2)d of this section.
Terms of office of members of the board of commissioners:
1. Members shall be elected for two-year terms of office.
2. Members shall be elected for four-year terms of office.
3. Members shall be elected for overlapping four-year terms of office.
4. The board shall consist of an odd number of members, who are elected for a combination of four- and two-year terms of office, so that a majority of members is elected each two years. This option may be used only if all members of the board are nominated and elected by the voters of the entire county, and only if the chairman of the board is elected by and from the members of the board.
Mode of election of the board of commissioners:
1. The qualified voters of the entire county shall nominate all candidates for and elect all members of the board. For options b, c, and d, the county shall be divided into electoral districts, and board members shall be apportioned to the districts so that the quotients obtained by dividing the population of each district by the number of commissioners apportioned to the district are as nearly equal as practicable.
2. The qualified voters of each district shall nominate candidates and elect members who reside in the district for seats apportioned to that district; and the qualified voters of the entire county shall nominate candidates and elect members apportioned to the county at large, if any.
3. The qualified voters of each district shall nominate candidates who reside in the district for seats apportioned to that district, and the qualified voters of the entire county shall nominate candidates for seats apportioned to the county at large, if any; and the qualified voters of the entire county shall elect all the members of the board.
4. Members shall reside in and represent the districts according to the apportionment plan adopted, but the qualified voters of the entire county shall nominate all candidates for and elect all members of the board.
  If any of options b, c, or d is adopted, the board shall divide the county into the requisite number of electoral districts according to the apportionment plan adopted, and shall cause a delineation of the districts so laid out to be drawn up and filed as required by G.S. 153A-20 . No more than half the board may be apportioned to the county at large.
Selection of chairman of the board of commissioners:
1. The board shall elect a chairman from among its membership to serve a one-year term, as provided by G.S. 153A-39 .
2. The chairmanship shall be a separate office. The qualified voters of the entire county nominate candidates for and elect the chairman for a two- or four-year term.

History. 1927, c. 91, s. 3; 1969, c. 717, s. 1; 1973, c. 822, s. 1.

Local Modification.

(As to Part 4 of Article 4) Bladen: 1987, c. 646; Dare: 1991, Ex. Sess., c. 2, s. 4 (As to applicability and contingency provisions, see 1991 Session Laws, Ex. Sess., c. 2, s. 7); Lee (as to Part 4 and G.S. 153A-58 ): 1989, c. 195, ss. 4, 5 (effective June 1, 1989, but only applicable to resolutions approved on or before Aug. 1, 1990), as amended by 1989, c. 770, s. 43; (as to Part 4 of Article 4) Union: 2007-328, s. 1 (suspended until January 1, 2012); (As to Part 4 of Article 4) Wake: 2015-4, s. 2; (As to Part 4 of Article 4) Buncombe County Board of Commissioners: 2011-81, s. 1, as amended by 2011-407, s. 4; (As to Part 4 of Article 4) Guilford County Board of Commissioners: 2011-407, s. 3(h); (As to Part 4 of Article 4) Mecklenburg County Board of Commissioners: 2011-407, s. 1(b).

§ 153A-59. Implementation when board has members serving a combination of four- and two-year terms.

If the structure of the board of commissioners is altered to establish a board with an odd number of members serving a combination of four- and two-year terms of office, the new structure shall be implemented as follows:

At the first election all members of the board shall be elected. A simple majority of those elected shall be elected for two-year terms, and the remaining members shall be elected for four-year terms. The candidate or candidates receiving the highest number of votes shall be elected for the four-year terms.

At each subsequent general election, a simple majority of the board shall be elected. That candidate who is elected with the least number of votes shall be elected for a two-year term, and the other member or members elected shall be elected for four-year terms.

History. 1927, c. 91, s. 3; 1969, c. 717, s. 1; 1973, c. 822, s. 1.

§ 153A-60. Initiation of alterations by resolution.

The board of commissioners shall initiate any alteration in the structure of the board by adopting a resolution. The resolution shall:

Briefly but completely describe the proposed alterations;
Prescribe the manner of transition from the existing structure to the altered structure;
Define the electoral districts, if any, and apportion the members among the districts;
Call a special referendum on the question of adoption of the alterations. The referendum shall be held and conducted by the county board of elections. The referendum may be held only on a date permitted by G.S. 163-287 . Upon its adoption, the resolution shall be published in full.

History. 1927, c. 91, s. 4; 1969, c. 717, s. 1; 1973, c. 822, s. 1; 1977, c. 382; 2013-381, s. 10.23; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.

Local Modification.

Craven: 2001-447, s. 1 (applicable only to resolutions adopted before January 1, 2002); Dare: 1991, Ex. Sess., c. 2, s. 1 (As to applicability and contingency provisions, see 1991 Session Laws, Ex. Sess., c. 2, s. 7); Lee: 1989, c. 195, s. 1 (effective June 1, 1989, but only applicable to resolutions approved on or before Aug. 1, 1990); Wayne: 1987, c. 119 (only applicable to resolutions approved on or before Nov. 30, 1988).

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 technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification. Pursuant to this authority, the Revisor substituted “G.S. 163A-1592” for “G.S. 163-287” in subdivision (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 reference in subdivision (4).

Effect of Amendments.

Session Laws 2013-381, s. 10.23, effective January 1, 2014, substituted “only on a date permitted by G.S. 163-287 ” for “at the same time as any other state, county or municipal primary, election, special election or referendum, or on any date set by the board of county commissioners, provided, that such referendum shall not be held within the period of time beginning 60 days before and ending 60 days after any other primary, election, special election or referendum held in the county” in the last sentence in subdivision (4).

Legal Periodicals.

For survey of 1977 administrative law affecting state government, see 56 N.C.L. Rev. 867 (1978).

§ 153A-61. Submission of proposition to voters; form of ballot.

A proposition to approve an alteration shall be printed on the ballot in substantially the following form:

“Shall the structure of the board of commissioners be altered? (Describe the effect of the alteration.)

• YES

• NO”

The ballot shall be separate from other ballots used at the election.

If a majority of the votes cast on the proposition are in the affirmative, the plan contained in the resolution shall be put into effect as provided in this Part. If a majority of the votes cast are in the negative, the resolution and the plan contained therein are void.

History. 1927, c. 91, s. 4; 1969, c. 717, s. 1; 1973, c. 822, s. 1.

Local Modification.

Craven: 2001-447, s. 1 (applicable only to resolutions adopted before January 1, 2002); Dare: 1991, Ex. Sess., c. 2, s. 2 (As to applicability and contingency provisions, see 1991 Session Laws, Ex. Sess., c. 2, s. 7); Lee: 1989, c. 195, s. 2 (effective June 1, 1989, but only applicable to resolutions approved on or before Aug. 1, 1990); Wayne: 1987, c. 119 (only applicable to resolutions approved on or before Nov. 30, 1988).

§ 153A-62. Effective date of any alteration.

Any approved alteration shall be the basis for nominating and electing the members of the board of commissioners at the first succeeding primary and general election for county offices held after approval of the alteration; and the alteration takes effect on the first Monday in December following that general election.

History. 1927, c. 91, s. 4; 1969, c. 717, s. 1; 1973, c. 822, s. 1.

OPINIONS OF ATTORNEY GENERAL

A referendum on reorganizing the Board of Commissioners in Madison County, if approved, would be effective for the next general election in which county offices are scheduled to be filled. See opinion of Attorney General to Mr. Larry Leake, Chairman, State Board of Elections, 1998 N.C. Op. Att'y Gen. 37 (8/27/98).

§ 153A-63. Filing copy of resolution.

A copy of a resolution approved pursuant to this Part shall be filed and indexed in the ordinance book required by G.S. 153A-48 .

History. 1927, c. 91, s. 4; 1969, c. 717, s. 1; 1973, c. 822, s. 1.

§ 153A-64. Filing results of election.

If the proposition is approved under G.S. 153A-61 , a certified true copy of the resolution and a copy of the abstract of the election shall be filed with the Secretary of State, and with the Legislative Library.

History. 1985 (Reg. Sess., 1986), c. 935, s. 1; 1989, c. 191, s. 1.

Local Modification.

Craven: 2001-447, s. 2 (applicable only to resolutions adopted before January 1, 2002); Dare: 1991, Ex. Sess., c. 2, s. 3 (As to applicability and contingency provisions, see 1991 Session Laws, Ex. Sess., c. 2, s. 7); Lee: 1989, c. 195, s. 3 (effective June 1, 1989, but only applicable to resolutions approved on or before Aug. 1, 1990); Wayne: 1987, c. 119 (only applicable to resolutions approved on or before Nov. 30, 1988).

§§ 153A-65 through 153A-75.

Reserved for future codification purposes.

Article 5. Administration.

Part 1. Organization and Reorganization of County Government.
Part 2. Administration in Counties Having Managers.
Part 3. Administration in Counties Not Having Managers.
Part 4. Personnel.
Part 5. Board of Commissioners and Other Officers, Boards, Departments, and Agencies of the County.
Part 6. Clerk to the Board of Commissioners.
Part 7. County Attorney.

Part 1. Organization and Reorganization of County Government.

§ 153A-76. Board of commissioners to organize county government.

The board of commissioners may create, change, abolish, and consolidate offices, positions, departments, boards, commissions, and agencies of the county government, may impose ex officio the duties of more than one office on a single officer, may change the composition and manner of selection of boards, commissions, and agencies, and may generally organize and reorganize the county government in order to promote orderly and efficient administration of county affairs, subject to the following limitations:

The board may not abolish an office, position, department, board, commission, or agency established or required by law.
The board may not combine offices or confer certain duties on the same officer when this action is specifically forbidden by law.
The board may not discontinue or assign elsewhere a function or duty assigned by law to a particular office, position, department, board, commission, or agency.
The board may not change the composition or manner of selection of a local board of education, the board of elections, or the board of alcoholic beverage control.
The board may not abolish nor consolidate into a human services agency a hospital authority assigned to provide public health services pursuant to Section 12 of S.L. 1997-502 or a public health authority assigned the power, duties, and responsibilities to provide public health services as outlined in G.S. 130A-1.1 .
A board may not consolidate an area mental health, developmental disabilities, and substance abuse services board into a consolidated human services board. The board may not abolish an area mental health, developmental disabilities, and substance abuse services board, except as provided in Chapter 122C of the General Statutes. This subdivision shall not apply to any board that has exercised the powers and duties of an area mental health, developmental disabilities, and substance abuse services board as of January 1, 2012.
The board may not abolish, assume control over, or consolidate into a human services agency a public hospital as defined in G.S. 159-39(a) pursuant to G.S. 153A-77 .

History. 1973, c. 822, s. 1; 2012-126, s. 2.

Cross References.

As to prevalence of Article 7 of Chapter 115C (G.S. 115C-65 et seq.) over subdivision (4) of this section, see G.S. 115C-68.3 .

Legal Periodicals.

For article, “Far From a ‘Dead Letter’: The Contract Clause and North Carolina Association of Educators v. State,” see 96 N.C.L. Rev. 168 (2018).

CASE NOTES

County Department and Board of Social Services Do Not Have Sovereign Immunity. —

Because a county department of social services and a county board of social services are extensions of the county, which does not enjoy sovereign immunity, neither do they have sovereign immunity. Meares v. Brunswick County, 615 F. Supp. 14, 1985 U.S. Dist. LEXIS 20801 (E.D.N.C. 1985).

OPINIONS OF ATTORNEY GENERAL

Although a board of commissioners may organize county government pursuant to this section, the section expressly prohibits the board from abolishing a department, such as the county health department, and assigning elsewhere its functions and duties. Therefore, a county health department may not be divided into two or more agencies. See opinion of Attorney General to Dr. Ronald H. Levine, State Health Director, 52 N.C. Op. Att'y Gen. 44 (1982).

The Gaston County Board of Commissioners may not abolish the Gaston County Police Department or assign its duties to some other entity unless and until that action is authorized by the General Assembly. See opinion of Attorney General to Heath R. Jenkins, Chairman, Gaston County Board of Commissioners, 2001 N.C. AG LEXIS 11 (3/12/2001).

§ 153A-77. Authority of boards of commissioners over commissions, boards, agencies, etc.

In the exercise of its jurisdiction over commissions, boards and agencies, the board of county commissioners may assume direct control of any activities theretofore conducted by or through any commission, board or agency by the adoption of a resolution assuming and conferring upon the board of county commissioners all powers, responsibilities and duties of any such commission, board or agency. This section shall apply to the board of health, the social services board, area mental health, developmental disabilities, and substance abuse area board or any other commission, board or agency appointed by the board of county commissioners or acting under and pursuant to authority of the board of county commissioners of said county except as provided in G.S. 153A-76 . A board of county commissioners exercising the power and authority under this subsection may, notwithstanding G.S. 130A-25 , enforce public health rules adopted by the board through the imposition of civil penalties. If a public health rule adopted by a board of county commissioners imposes a civil penalty, the provisions of G.S. 130A-25 making its violation a misdemeanor shall not be applicable to that public health rule unless the rule states that a violation of the rule is a misdemeanor. The board of county commissioners may exercise the power and authority herein conferred only after a public hearing held by said board pursuant to 30 days’ notice of said public hearing given in a newspaper having general circulation in said county.The board of county commissioners may also appoint advisory boards, committees, councils and agencies composed of qualified and interested county residents to study, interpret and develop community support and cooperation in activities conducted by or under the authority of the board of county commissioners of said county.A board of county commissioners that has assumed direct control of a local health board after January 1, 2012, and that does not delegate the powers and duties of that board to a consolidated health service board shall appoint an advisory committee consistent with the membership described in G.S. 130A-35 .
In the exercise of its jurisdiction over commissions, boards, and agencies, the board of county commissioners of a county having a county manager pursuant to G.S. 153A-81 may:
1. Consolidate certain provisions of human services in the county under the direct control of a human services director appointed and supervised by the county manager in accordance with subsection (e) of this section;
2. Create a consolidated human services board having the powers conferred by subsection (c) of this section;
3. Create a consolidated county human services agency having the authority to carry out the functions of any combination of commissions, boards, or agencies appointed by the board of county commissioners or acting under and pursuant to authority of the board of county commissioners, including the local health department, the county department of social services, or the area mental health, developmental disabilities, and substance abuse services authority; and
4. Assign other county human services functions to be performed by the consolidated human services agency under the direction of the human services director, with policy-making authority granted to the consolidated human services board as determined by the board of county commissioners.
A consolidated human services board appointed by the board of county commissioners shall serve as the policy-making, rule-making, and administrative board of the consolidated human services agency. The consolidated human services board shall be composed of no more than 25 members. The composition of the board shall reasonably reflect the population makeup of the county and shall include:
1. Eight persons who are consumers of human services, public advocates, or family members of clients of the consolidated human services agency, including: one person with mental illness, one person with a developmental disability, one person in recovery from substance abuse, one family member of a person with mental illness, one family member of a person with a developmental disability, one family member of a person with a substance abuse problem, and two consumers of other human services.
  (1a) Notwithstanding subdivision (1) of this subsection, a consolidated human services board not exercising powers and duties of an area mental health, developmental disabilities, and substance abuse services board shall include four persons who are consumers of human services.
2. Eight persons who are professionals, each with qualifications in one of these categories: one psychologist, one pharmacist, one engineer, one dentist, one optometrist, one veterinarian, one social worker, and one registered nurse.
3. Two physicians licensed to practice medicine in this State, one of whom shall be a psychiatrist.
4. One member of the board of county commissioners.
5. Other persons, including members of the general public representing various occupations.The board of county commissioners may elect to appoint a member of the consolidated human services board to fill concurrently more than one category of membership if the member has the qualifications or attributes of more than one category of membership.All members of the consolidated human services board shall be residents of the county. The members of the board shall serve four-year terms. No member may serve more than two consecutive four-year terms. The county commissioner member shall serve only as long as the member is a county commissioner.The initial board shall be appointed by the board of county commissioners upon the recommendation of a nominating committee comprised of members of the preconsolidation board of health, social services board, and area mental health, developmental disabilities, and substance abuse services board. In order to establish a uniform staggered term structure for the board, a member may be appointed for less than a four-year term. After the subsequent establishment of the board, its board shall be appointed by the board of county commissioners from nominees presented by the human services board. Vacancies shall be filled for any unexpired portion of a term.A chairperson shall be elected annually by the members of the consolidated human services board. A majority of the members shall constitute a quorum. A member may be removed from office by the county board of commissioners for (i) commission of a felony or other crime involving moral turpitude; (ii) violation of a State law governing conflict of interest; (iii) violation of a written policy adopted by the county board of commissioners; (iv) habitual failure to attend meetings; (v) conduct that tends to bring the office into disrepute; or (vi) failure to maintain qualifications for appointment required under this subsection. A board member may be removed only after the member has been given written notice of the basis for removal and has had the opportunity to respond.A member may receive a per diem in an amount established by the county board of commissioners. Reimbursement for subsistence and travel shall be in accordance with a policy set by the county board of commissioners. The board shall meet at least quarterly. The chairperson or three of the members may call a special meeting.
The consolidated human services board shall have authority to:
1. Set fees for departmental services based upon recommendations of the human services director. Fees set under this subdivision are subject to the same restrictions on amount and scope that would apply if the fees were set by a county board of health, a county board of social services, or a mental health, developmental disabilities, and substance abuse area authority.
2. Assure compliance with laws related to State and federal programs.
3. Recommend creation of local human services programs.
4. Adopt local health regulations and participate in enforcement appeals of local regulations.
5. Perform regulatory health functions required by State law.
6. Act as coordinator or agent of the State to the extent required by State or federal law.
7. Plan and recommend a consolidated human services budget.
8. Conduct audits and reviews of human services programs, including quality assurance activities, as required by State and federal law or as may otherwise be necessary periodically.
9. Advise local officials through the county manager.
10. Perform public relations and advocacy functions.
11. Protect the public health to the extent required by law.
12. Perform comprehensive mental health services planning if the county is exercising the powers and duties of an area mental health, developmental disabilities, and substance abuse services board under the consolidated human services board.
13. Develop dispute resolution procedures for human services contractors and clients and public advocates, subject to applicable State and federal dispute resolution procedures for human services programs, when applicable.Except as otherwise provided, the consolidated human services board shall have the powers and duties conferred by law upon a board of health, a social services board, and an area mental health, developmental disabilities, and substance abuse services board.Local employees who serve as staff of a consolidated county human services agency are subject to county personnel policies and ordinances only and are not subject to the provisions of the North Carolina Human Resources Act, unless the county board of commissioners elects to subject the local employees to the provisions of that Act. All consolidated county human services agencies shall comply with all applicable federal laws, rules, and regulations requiring the establishment of merit personnel systems.
The human services director of a consolidated county human services agency shall be appointed and dismissed by the county manager with the advice and consent of the consolidated human services board. The human services director shall report directly to the county manager. The human services director shall:
1. Appoint staff of the consolidated human services agency with the county manager’s approval.
2. Administer State human services programs.
3. Administer human services programs of the local board of county commissioners.
4. Act as secretary and staff to the consolidated human services board under the direction of the county manager.
5. Plan the budget of the consolidated human services agency.
6. Advise the board of county commissioners through the county manager.
7. Perform regulatory functions of investigation and enforcement of State and local health regulations, as required by State law.
8. Act as an agent of and liaison to the State, to the extent required by law.
9. Appoint, with the county manager’s approval, an individual that meets the requirements of G.S. 130A-40(a).Except as otherwise provided by law, the human services director or the director’s designee shall have the same powers and duties as a social services director, a local health director, or a director of an area mental health, developmental disabilities, and substance abuse services authority.
Repealed by Session Laws 2012-126, s. 1, effective June 29, 2012.

History. 1973, c. 454, ss. 1-21/2; 1985, c. 589, s. 56; c. 754, s. 1; 1987, c. 217, ss. 1, 2; 1995 (Reg. Sess., 1996), c. 690, s. 3; 2001-120, s. 1; 2012-126, s. 1; 2013-382, s. 9.1(c).

Editor’s Note.

At the direction of the Revisor of Statutes, the section heading, which was initially added by the Revisor of Statutes, has been revised to delete the words “in certain counties” in order to conform to the repeal of former subsection (f) by Session Laws 2012-126, s. 1

Session Laws 1995 (Reg. Sess., 1996), c. 690, s. 16, effective July 1, 1996, and expiring on January 1, 2001, provides that counties which consolidate human services pursuant to G.S. 153A-77(b) shall report by January 1, 1998, and annually thereafter to the Chairs of the House Appropriations Subcommittees on Human Resources and Natural and Economic Resources and the Chairs of the Senate Appropriations Committees on Human Resources and Natural and Economic Resources, to the Joint Legislative Commission on Governmental Operations, and to the Fiscal Research Division regarding the county’s implementation of consolidated human services.

Legal Periodicals.

For article, “Far From a ‘Dead Letter’: The Contract Clause and North Carolina Association of Educators v. State,” see 96 N.C.L. Rev. 168 (2018).

CASE NOTES

Standing. —

Trial court properly dismissed a plaintiff’s complaint to set aside a deed from the county and remove from office the elected officials who approved the transfer because he lacked standing to bring his claims inasmuch as he failed to allege that he was a taxpayer, failed to assert a traceable, concrete, and particularized injury resulting from the transfer of a 500 acre tract of land between the parties named in his complaint, failed to set facts to support his claim that would entitle him to relief, and failed to allege in his complaint or on appeal, pursuant to statute and the common law removal procedure known as “amotion,” that he was a member of any of the boards from which he sought to remove members. Walker v. Hoke Cty., 260 N.C. App. 121, 817 S.E.2d 609, 2018 N.C. App. LEXIS 625 (2018).

Personal Jurisdiction Involving Negligent Placement of Foster Child. —

Where defendants raised the issues of failure to state a claim and lack of subject matter jurisdiction, but failed to raise the issue of personal jurisdiction, and stipulated in the record before the appellate court that they were properly before the trial court, the defendants could not argue that they were not subject to suit under this section and Chapters 108A and 122C. Hobbs v. North Carolina Dep't of Human Resources, 135 N.C. App. 412, 520 S.E.2d 595, 1999 N.C. App. LEXIS 1146 (1999).

Former Department of Social Services Employee Subject to State Human Resources Act. —

Administrative law judge (ALJ) properly concluded that a technician who worked for a county department of social services was a career State employee under the State Human Resources Act (SHRA) and was subject to the SHRA because the county board of commissioners passed resolutions leaving the employees of the consolidated human services agency subject to the SHRA; therefore, just cause was required to support the technician’s termination. Watlington v. Dep't of Soc. Servs. Rockingham Cnty., 252 N.C. App. 512, 799 S.E.2d 396, 2017 N.C. App. LEXIS 220 (2017), overruled in part, Rouse v. Forsyth Cty. Dep't of Soc. Servs., 373 N.C. 400 , 838 S.E.2d 390, 2020 N.C. LEXIS 93 (2020).

OPINIONS OF ATTORNEY GENERAL

Pursuant to this section, a board of commissioners, in a county with a population in excess of 325,000 (now 425,000), may assume all powers, responsibilities and duties of a county board of health. The board may exercise the power and authority after conducting a public hearing pursuant to 30 days’ notice. Although the board may appoint advisory groups, the statute does not authorize the delegation of the former power and authority of the county board of health to another agency. See opinion of Attorney General to Dr. Ronald H. Levine, State Health Director, 52 N.C. Op. Att'y Gen. 44 (1982).

The authority conferred by this section is limited to commissions, boards and agencies appointed by the board of commissioners or acting pursuant to its authority. The local health director is appointed by the county board of health and his authority is conferred by statute. Furthermore, the authority of the board of commissioners to assume the power and responsibilities of agencies is limited by the statute to boards, such as health and social services, and similar agencies. The office of local health director is unaffected by this section and must be filled by the board of commissioners. See opinion of Attorney General to Dr. Ronald H. Levine, State Health Director, 52 N.C. Op. Att'y Gen. 44 (1982).

Subsection (a) of this section and G.S. 122C-115 , permitting counties, subject to certain prerequisites, to choose to operate their own mental health, developmental disabilities, and substance abuse services, do not exempt any county from the service delivery mandates of Chapter 122C because subsection (a) of this section only pertains to the governing structure of a county program and not to the provision of services. See opinion of Attorney General to Eddie S. Winstead III, Esq., Harrington, Ward, Gilleland & Winstead, L.L.P., 2002 N.C. Op. Att'y Gen. 24 (9/6/02).

This section does not violate N.C. Const., Art. II, § 24(1)(a) on the basis that it is local legislation because statutes such as this section and G.S. 122C-115 , permitting counties, subject to certain prerequisites, to choose to operate their own mental health, developmental disabilities, and substance abuse services, operate uniformly throughout the State, even though there are different classifications based upon population. See opinion of Attorney General to Eddie S. Winstead III, Esq., Harrington, Ward, Gilleland & Winstead, L.L.P., 2002 N.C. Op. Att'y Gen. 24 (9/6/02).

§ 153A-77.1. Single portal of entry.

A county may develop for human services a single portal of entry, a consolidated case management system, and a common data base; provided that if the county is part of a district health department or multicounty public health authority or a multicounty area mental health, developmental disabilities, and substance abuse authority, such action must be approved by the district board of health or public health authority board or the area mental health, developmental disabilities, and substance abuse board to affect any matter within the jurisdiction of that board. Nothing in this section shall be construed to abrogate a patient’s right to confidentiality as provided by law.

History. 1987, c. 422, s. 1; 1991 (Reg. Sess., 1992), c. 1030, s. 47; 1997-502, s. 5.

§§ 153A-78 through 153A-80.

Reserved for future codification purposes.

Part 2. Administration in Counties Having Managers.

§ 153A-81. Adoption of county-manager plan; appointment or designation of manager.

The board of commissioners may by resolution adopt or discontinue the county-manager plan. If it adopts the county-manager plan, the board may, in the alternative:

Appoint a county manager to serve at its pleasure. The manager shall be appointed solely on the basis of his executive and administrative qualifications. He need not be a resident of the county or the State at the time of his appointment.
Confer upon the chairman or some other member of the board of commissioners the duties of county manager. If this is done, the chairman or member shall become a full-time county official, and the board may increase his salary pursuant to G.S. 153A-28 .
Confer upon any other officer, employee, or agent of the county the duties of county manager.
As used in this Part, the word “manager” includes the chairman or any member of the board of commissioners exercising the duties of manager or any officer, employee, or agent of a county exercising the duties of manager.

History. 1927, c. 91, ss. 5, 8; 1973, c. 822, s. 1.

Local Modification.

Harnett: 2014-6, s. 6(b).

§ 153A-82. Powers and duties of manager.

The manager is the chief administrator of county government. The manager is responsible to the board of commissioners for the administration of all departments of county government under the board’s general control and has the following powers and duties:
1. He shall appoint with the approval of the board of commissioners and suspend or remove all county officers, employees, and agents except those who are elected by the people or whose appointment is otherwise provided for by law. The board may by resolution permit the manager to appoint officers, employees, and agents without first securing the board’s approval. The manager shall make his appointments, suspensions, and removals in accordance with any general personnel rules, regulations, policies, or ordinances that the board may adopt. The board may require the manager to report each suspension or removal to the board at the board’s first regular meeting following the suspension or removal; and, if the board has permitted the manager to make appointments without board approval, the board may require the manager to report each appointment to the board at the board’s first regular meeting following the appointment.
2. He shall direct and supervise the administration of all county offices, departments, boards, commissions and agencies under the general control of the board of commissioners, subject to the general direction and control of the board.
3. He shall attend all meetings of the board of commissioners and recommend any measures that he considers expedient.
4. He shall see that the orders, ordinances, resolutions, and regulations of the board of commissioners are faithfully executed within the county.
5. He shall prepare and submit the annual budget and capital program to the board of commissioners.
6. He shall annually submit to the board of commissioners and make available to the public a complete report on the finances and administrative activities of the county as of the end of the fiscal year.
7. He shall make any other reports that the board of commissioners may require concerning the operations of county offices, departments, boards, commissions, and agencies.
8. He shall perform any other duties that may be required or authorized by the board of commissioners.
9. The manager shall receive a minimum of six clock hours of education upon the occurrence, or within six months of the occurrence, of any of the following:
  1. The Local Government Commission is exercising its authority under Article 10 of Chapter 159 of the General Statutes with respect to the county.
  2. The county has received a unit letter from the Local Government Commission due to a deficiency in complying with Chapter 159 of the General Statutes.
  3. The county has an internal control material weakness or significant deficiency in the most recently completed financial audit.
  4. The county is included on the most recently published Unit Assistance List issued by the Department of State Treasurer.
The education required by subdivision (9) of subsection (a) of this section shall incorporate fiscal management and the requirements of Chapter 159 of the General Statutes. The education may be provided by the Local Government Commission, the School of Government at the University of North Carolina, the North Carolina Community College System, the North Carolina League of Municipalities, the North Carolina Association of County Commissioners, or other qualified sources at the choice of the governing board and upon the prior approval of the Local Government Commission. The clerk to the governing board shall maintain a record verifying receipt of the education by the manager and shall provide this information, upon request, to the Secretary of the Local Government Commission.

History. 1927, c. 91, ss. 6, 7; 1973, c. 822, s. 1; 2021-124, s. 3.

Effect of Amendments.

Session Laws 2021-124, s. 3, effective August 30, 2021, designated subsection (a); in subsection (a), changed to gender-neutral language in the introductory language; and added subdivision (a)(9) and subsection (b).

CASE NOTES

Severance Pay. —

The right of a public officer to receive compensation can only arise out of the rendition of the public services related to his office. Leete v. County of Warren, 341 N.C. 116 , 462 S.E.2d 476, 1995 N.C. LEXIS 778 (1995).

Where county manager worked one month after giving notice of his resignation and received all compensation due him under the terms of his employment with the County, severance pay would be compensation beyond that due for services rendered and, thus, constitutionally impermissible. Leete v. County of Warren, 341 N.C. 116 , 462 S.E.2d 476, 1995 N.C. LEXIS 778 (1995).

Severance pay to county manager who voluntarily resigned violated North Carolina Constitution, Art. 1, § 32, because county manager was to be compensated for duties that were not performed, since the record reflected that the compensation was not for prior services rendered, and he was paid all benefits due him. Leete v. County of Warren, 341 N.C. 116 , 459 S.E.2d 232, 1995 N.C. LEXIS 396 , op. withdrawn, sub. op., 341 N.C. 116 , 462 S.E.2d 476, 1995 N.C. LEXIS 778 (1995).

Authority to Order Payment of Insurance Premiums for Disability Retiree. —

In an action by a retired police officer seeking continuation of insurance payments by the county, individual county commissioners did not have authority to bind the county to such payments pursuant to G.S. 153A-92 or G.S. 153A-11 , and a county manager did not did not have authority pursuant to G.S. 153A-82 to bind the county to an agreement to pay the insurance premiums without an express delegation of power by the Board of County Commissioners. Denson v. Richmond County, 159 N.C. App. 408, 583 S.E.2d 318, 2003 N.C. App. LEXIS 1498 (2003).

§ 153A-83. Acting county manager.

By letter filed with the clerk, the manager may designate, subject to the approval of the board of commissioners, a qualified person to exercise the powers and perform the duties of manager during the manager’s temporary absence or disability. During an absence or disability, the board may revoke the designation at any time and appoint another person to serve until the manager returns or his disability ceases.

History. 1973, c. 822, s. 1.

§ 153A-84. Interim county manager.

Whenever the position of county manager is vacant, the board of commissioners shall designate a qualified person to exercise the powers and perform the duties of manager until the vacancy is filled. The board may designate the chairman or some other member as interim manager; for the interim the chairman or member shall become a full-time county official, and the board may increase his salary pursuant to G.S. 153A-28 .

History. 1973, c. 822, s. 1.

§§ 153A-85, 153A-86.

Reserved for future codification purposes.

Part 3. Administration in Counties Not Having Managers.

§ 153A-87. Administration in counties not having managers.

In a county that has not adopted or does not operate under the county-manager plan, the board of commissioners shall appoint, suspend, and remove all county officers, employees, and agents except those who are elected by the people or whose appointment is otherwise provided for by law. The board may delegate to the head of any county department the power to appoint, suspend, and remove county officers or employees assigned to his department.

History. 1973, c. 822, s. 1.

§ 153A-88. Acting department heads.

By letter filed with the clerk, the head of a department may designate, subject to the approval of the board of commissioners, a qualified person to exercise the powers and perform the duties of head of that department during the department head’s temporary absence or disability. During an absence or disability, the board may revoke the designation at any time and appoint another person to serve until the department head returns or his disability ceases.

History. 1973, c. 822, s. 1.

§ 153A-89. Interim department heads.

Whenever the position of head of a department is vacant, the board may designate a qualified person to exercise the powers and perform the duties of head of the department until the vacancy is filled.

History. 1973, c. 822, s. 1.

§§ 153A-90, 153A-91.

Reserved for future codification purposes.

Part 4. Personnel.

§ 153A-92. Compensation.

Subject to the limitations set forth in subsection (b) of this section, the board of commissioners shall fix or approve the schedule of pay, expense allowances, and other compensation of all county officers and employees, whether elected or appointed, and may adopt position classification plans.
In exercising the authority granted by subsection (a) of this section, the board of commissioners is subject to the following limitations:
1. The board of commissioners may not reduce the salary, allowances, or other compensation paid to an officer elected by the people for the duties of his elective office if the reduction is to take effect during the term of office for which the incumbent officer has been elected, unless the officer agrees to the reduction or unless the Local Government Commission pursuant to Chapter 159, Article 10, orders a reduction.
2. During the year of a general election, the board of commissioners may reduce the salary, allowances, or other compensation of an officer to be elected at the general election only in accordance with this subdivision. The board of commissioners shall by resolution give notice of intention to make the reduction no later than 14 days before the last day for filing notice of candidacy for the office. The resolution shall set forth the reduced salary, allowances, and other compensation and shall provide that the reduction is to take effect at the time the person elected to the office in the general election takes office. Once adopted, the resolution may not be altered until the person elected to the office in the general election has taken office. The filing fee for the office shall be determined by reference to the reduced salary.
3. If the board of commissioners reduces the salaries, allowances, or other compensation of employees assigned to an officer elected by the people, and the reduction does not apply alike to all county offices and departments, the elected officer involved must approve the reduction. If the elected officer refuses to approve the reduction, he and the board of commissioners shall meet and attempt to reach agreement. If agreement cannot be reached, either the board or the officer may refer the dispute to arbitration by the senior resident superior court judge of the superior court district or set of districts as defined in G.S. 7A-41.1 in which the county is located. The judge shall make an award within 30 days after the day the matter is referred to him. The award may extend for no more than two fiscal years, including the fiscal year for which it is made.
4. The board of commissioners shall fix their own salaries, allowances, and other compensation in accordance with G.S. 153A-28 .
5. The board of commissioners shall fix the salaries, allowances and other compensation of county employees subject to the North Carolina Human Resources Act according to the procedures set forth in Chapter 126. The board may make these employees subject to a county position classification plan only as provided in Chapter 126.
In counties with a county manager, the manager is responsible for preparing position classification and pay plans for submission to the board of commissioners and for administering the pay plan and any position classification plan in accordance with general policies and directives adopted by the board. In counties without a county manager, the board of commissioners shall appoint or designate a personnel officer, who shall then be responsible for administering the pay plan and any position classification plan in accordance with general policies and directives adopted by the board.
A county may purchase life insurance or health insurance or both for the benefit of all or any class of county officers and employees as a part of their compensation. A county may provide other fringe benefits for county officers and employees. In providing health insurance to county officers and employees, a county 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. 1927, c. 91, s. 8; 1953, c. 1227, ss. 1-3; 1969, c. 358, s. 1; c. 1017; 1973, c. 822, s. 1; 1987 (Reg. Sess., 1988), c. 1037, s. 122; 2013-366, s. 2(b); 2013-382, s. 9.1(c).

Cross References.

As to compensation of board of education members, see G.S. 115C-38 .

CASE NOTES

Severance Pay. —

Writ of Mandamus Directing Board of County Commissioners to Pay Employee of Board of Elections was Proper. —

Writ of mandamus directing a county board of commissioners (commissioners) to pay an employee of a county board of elections (elections board) was proper because: (1) so long as the elections board remained within the budget allocated by the commissioners, the elections board had the sole authority to hire and fire elections employees; and (2) it was uncontested that there were sufficient funds in the budget to pay the employee so the commissioners’ duty to pay the employee was ministerial. Graham County Bd. of Elections v. Graham County Bd. of Comm'rs, 212 N.C. App. 313, 712 S.E.2d 372, 2011 N.C. App. LEXIS 1066 (2011).

Authority to Order Payment of Insurance Premiums for Disability Retiree. —

OPINIONS OF ATTORNEY GENERAL

See opinion of Attorney General to Mr. Harold Price, Chairman, Alexander County Board of Elections, 40 N.C. Op. Att'y Gen. 568 (1970).

As to authority of county to increase officers’ salaries in election year, see opinion of Attorney General to Mr. Dallas W. McPherson, Greene County Attorney, 40 N.C. Op. Att'y Gen. 569 (1970).

As to when a local or special act is applicable in fixing salaries, see opinion of Attorney General to Mr. James R. Sugg, Craven County Attorney, 41 N.C.A.G. 22A (1970).

§ 153A-93. Retirement benefits.

The board of commissioners may provide for enrolling county officers and 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 (c) of this section and may make payments into such a retirement system or plan on behalf of its employees.
No county may make payments into a retirement system or plan established or authorized by a local act unless the system or plan is certified to be actuarially sound by a qualified actuary as defined in subsection (c) of this section.
A qualified actuary means a member of the American Academy of Actuaries or an individual certified as qualified by the Commissioner of Insurance.
A county which is providing health insurance under G.S. 153A-92(d) may provide health insurance for all or any class of former officers and employees of the county. Such health insurance may be paid entirely by the county, partly by the county and former officer or employee, or entirely by the former officer or employee, at the option of the county.
(d1) On and after October 1, 2009, a county which is providing health insurance under G.S. 153A-92(d) may provide health insurance for all or any class of former officers and employees of the county who have obtained at least 10 years of service with the county prior to separation from the county and who are not receiving benefits under subsection (a) of this section. Such health insurance may be paid entirely by the county, partly by the county and former officer or employee, or entirely by the former officer or employee, at the option of the county.

(d2) Notwithstanding subsection (d) of this section, any county that has elected to and is covering its active employees only, or its active and retired employees, under the State Health Plan, or elects such coverage under the Plan, may not provide health insurance through the State Health Plan to all or any class of former officers and employees who are not receiving benefits under subsection (a) of this section. The county may, however, provide health insurance to such former officers and employees by any other means authorized by G.S. 153A-92(d). The health insurance premium may be paid entirely by the county, partly by the county and former officer or employee, or entirely by the former officer or employee, at the option of the county.
The board of commissioners may provide a deferred compensation plan. Where the board of commissioners 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 . Counties 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.

History. 1973, c. 822, s. 1; 1981, c. 347, s. 1; 1991, c. 277, s. 1; 2009-564, ss. 1, 2.

Local Modification.

Guilford: 2007-255, s. 2; Mecklenburg: 2007-255, s. 2; Wake: 2007-255, s. 2; city of Greensboro: 2007-255, s. 2; city of Raleigh: 2007-255, s. 2.

Effect of Amendments.

Session Laws 2009-564, ss. 1 and 2, effective August 28, 2009, deleted “who are receiving benefits under subsection (a) of this section” following “county” at the end of the first sentence of subsection (d); and added subsections (d1) and (d2). For applicability, see Editor’s note.

§ 153A-94. Personnel rules; office hours, workdays, and holidays.

The board of commissioners 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, 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.
The board of commissioners may prescribe the office hours, workdays, and holidays to be observed by the various offices, departments, boards, commissions, and agencies of the county.

History. 1959, c. 251; 1973, c. 822, s. 1; 1991, c. 636, s. 3.

§ 153A-94.1. (See note on condition precedent) Smallpox vaccination policy.

All counties that employ firefighters, law enforcement officers, paramedics, other first responders, or health department employees 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. 6.

Cross References.

As to tort claims arising from certain smallpox vaccinations of State employees, see G.S. 143-300.1 A.

Condition Precedent to Recovery Under This Act.

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.”

On April 20, 2003, President Bush signed into law the Smallpox Emergency Personnel Protection Act of 2003, Public Law 108-20, 117 Stat. 638, which authorized the Secretary of Health and Human Services to establish the Smallpox Vaccine Injury Compensation Program, which covers individuals immunized through Jan, 23. 2005 (smallpox) or vaccinia contacts who show symptoms by Feb. 22, 2005.

Editor’s Note.

Session Laws 2003-169, s. 8, is a severability clause.

Session Laws 2003-169, s. 9, makes 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.

§ 153A-94.2. Criminal history record checks of employees permitted.

The board of commissioners 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 local or regional public employer may consider the results of these criminal history record checks in its hiring decisions.

History. 2005-358, s. 2; 2014-100, s. 17.1(mmm).

Effect of Amendments.

Session Laws 2014-100, s. 17.1(mmm), effective July 1, 2014, substituted “Department of Public Safety” for “Department of Justice” and “G.S. 143B-945” for “G.S. 114-19.14” at the end of the first sentence.

§ 153A-95. Personnel board.

The board of commissioners may establish a personnel board with authority, as regards employees in offices, departments, boards, commissions, and agencies under the general control of the board of commissioners, 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, to hear employee grievances, or to undertake any other duties relating to personnel administration that the board of commissioners may direct.

History. 1973, c. 822, s. 1.

§ 153A-96. Participation in the Social Security Act.

The board of commissioners may take any action necessary to allow county officers and employees to participate fully in benefits provided by the Federal Social Security Act.

History. 1973, c. 822, s. 1.

§ 153A-97. Defense of officers, employees and others.

A county may, pursuant to G.S. 160A-167 , provide for the defense of:

Any county officer or employee, including the county board of elections or any county election official.
Any member of a volunteer fire department or rescue squad which receives public funds.
(2a) Any soil and water conservation supervisor, and any local soil and water conservation employee, whether the employee is a county employee or an employee of a soil and water conservation district.
Any person or professional association who at the request of the board of county commissioners provides medical or dental services to inmates in the custody of the sheriff and is sued pursuant to 42 U.S.C. § 1983 with respect to the services.

History. 1957, c. 436; 1973, c. 822, s. 1; 1977, c. 307, s. 1; 1989, c. 733, s. 2; 2001-300, s. 1.

§ 153A-98. Privacy of employee personnel records.

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 county 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 county 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 county.
The following information with respect to each county employee is a matter of public record:
1. Name.
2. Age.
3. Date of original employment or appointment to the county 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 county 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 county.
9. Date and type of each promotion, demotion, transfer, suspension, separation or other change in position classification with that county.
10. Date and general description of the reasons for each promotion with that county.
11. Date and type of each dismissal, suspension, or demotion for disciplinary reasons taken by the county. If the disciplinary action was a dismissal, a copy of the written notice of the final decision of the county setting forth the specific acts or omissions that are the basis of the dismissal.
12. The office to which the employee is currently assigned.
  (b1) 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.
  
  (b2) The board of county commissioners 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 board of commissioners 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.
All information contained in a county 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 county 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 county manager, with concurrence of the board of county commissioners, or, in counties not having a manager, the board of county commissioners may inform any person of the employment or nonemployment, promotion, demotion, suspension or other disciplinary action, reinstatement, transfer, or termination of a county employee and the reasons for that personnel action. Before releasing the information, the manager or board shall determine in writing that the release is essential to maintaining public confidence in the administration of county services or to maintaining the level and quality of county services. This written determination shall be retained in the office of the manager or the county clerk, is a record available for public inspection and shall become part of the employee’s personnel file. (c1) 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 county’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.
  
  (c2) The board of county commissioners 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 county as long as each personnel file so examined is retained.
  
  (c3) Repealed by Session Laws 2016-108, s. 2(g), effective July 22, 2016.
  
  (c4) 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 .
  
  (c5) Notwithstanding the requirements of this section, information shall be provided to the State Board of Elections from employee personnel records as provided in G.S. 163-22 .
The board of commissioners of a county 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.
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).
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. 1; 1981, c. 926, ss. 1, 5-8; 1993, c. 539, ss. 1059, 1060; 1994, Ex. Sess., c. 24, s. 14(c); 2007-508, s. 6; 2008-194, s. 11(d); 2010-169, s. 18(e); 2015-225, s. 1; 2016-108, s. 2(g); 2018-13, s. 3.2(b); 2018-146, s. 6.1.

Editor’s Note.

Session Laws 2016-108, s. 9, is a severability clause.

Session Laws 2018-13, s. 6, is a severability clause.

Session Laws 2018-13, s. 7, made subsection (c5) of this section, as added by Session Laws 2018-13, s. 3.2(b), effective June 20, 2018, and applicable to elections held on or after that date.

Session Laws 2018-146, s. 6.1, provides: “Consistent with this act, the Revisor is authorized to change all references to the Bipartisan State Board of Elections and Ethics Enforcement to instead be references to the State Board of Elections, State Ethics Commission, or Secretary of State, as appropriate. The Revisor may modify statutory citations throughout the General Statutes, as appropriate, and may modify any references to statutory divisions, such as ‘Chapter,’ ‘Subchapter,’ ‘Article,’ ‘Part,’ ‘section,’ and ‘subsection’; adjust the order of lists of multiple statutes to maintain statutory order; correct terms and conform names and titles changed by this act; eliminate duplicative references to the State Boards that result from the changes authorized by this section; and make conforming changes to catch lines and references to catch lines. The Revisor may also adjust subject and verb agreement and the placement of conjunctions. The Revisor shall consult with the Bipartisan State Board of Elections and Ethics Enforcement, the State Board of Elections, the State Ethics Commission, and the Secretary of State, as appropriate, on this recodification.” Pursuant to that authority, “State Board of Elections” was substituted for “State Board of Elections and Ethics Enforcement” in subsection (c).

Effect of Amendments.

Session Laws 2007-508, s. 6, 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 county has the written contract or a record of the oral contract in its possession” in the first sentence, added the second sentence, and made a minor grammatical change.

Session Laws 2008-194, s. 11(d), effective August 8, 2008, added subsection (c3).

Session Laws 2010-169, s. 18(e), 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 county” for “most recent increase or decrease in salary”; in subdivision (b)(9), substituted “Date and type of each promotion” for “date of most recent promotion,” and added “with that county”; added subdivisions (b)(10) and (b)(11); and added the subsection (b1) and (b2) designations.

Session Laws 2015-225, s. 1, effective October 1, 2015, added subsection (c4).

Session Laws 2016-108, s. 2(g), effective July 22, 2016, deleted subsection (c3), which read: “Notwithstanding any provision of this section to the contrary, the Retirement Systems Division of the Department of State Treasurer may disclose the name and mailing address of former local governmental employees to domiciled, nonprofit organizations representing 2,000 or more active or retired State government, local government, or public school employees.”

Session Laws 2018-13, s. 3.2(b), added subsection (c5). For effective date and applicability, see editor’s note.

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

Relationship With Other Laws. —

Where an employee appealed a district court’s entry of summary judgment in favor of her employer, her unauthorized review and disclosure of confidential personnel files to support her racial and religious discrimination claims did not constitute protected activity under Title VII of the Civil Rights Act of 1964, and she also violated G.S. 153A-98(f) , a valid, generally-applicable state law. Netter v. Barnes, 908 F.3d 932, 2018 U.S. App. LEXIS 32358 (4th Cir. 2018).

Applications for position of county sheriff sought by board of county commissioners were governed by the provisions of this section rather than the Public Records Law and, therefore were not subject to disclosure to the public. Durham Herald Co. v. County of Durham, 334 N.C. 677 , 435 S.E.2d 317, 1993 N.C. LEXIS 468 (1993).

Exemption from Public Disclosure. —

When a county employee wrote to the board of county commissioners about the employee’s experience working with the county medical director, when the board was considering whether to renew the director’s contract, and recommended another person for the director’s job and discussed the employee’s interaction with the board regarding the board’s decision-making process, the fact that the county manager chose to place the letter in the employee’s personnel file had no bearing on whether the letter was exempt from public disclosure under G.S. 132-1 because it was a personnel record covered by G.S. 153A-98 . News Reporter Co. v. Columbus County, 184 N.C. App. 512, 646 S.E.2d 390, 2007 N.C. App. LEXIS 1471 (2007).

Employee’s Letter to Board of County Commissioners. —

Parts of the letter to the board of county commissioners recommending a certain person for the medical director’s job and discussing the employee’s interaction with the board were subject to public disclosure under G.S. 132-1 because G.S. 153A-98(a) , protecting certain employee information from public disclosure, did not protect all information “with respect to” an employee, as the information had to relate to an illustrative list of subjects arising out of the employment, and there was no basis for considering these parts of the letter to be “any information” gathered by the county “with respect to” the types of matters governed by G.S. 153A-98(a) . News Reporter Co. v. Columbus County, 184 N.C. App. 512, 646 S.E.2d 390, 2007 N.C. App. LEXIS 1471 (2007); Wind v. City of Gastonia, 226 N.C. App. 180, 738 S.E.2d 780, 2013 N.C. App. LEXIS 291 , aff'd, 367 N.C. 184 , 751 S.E.2d 611, 2013 N.C. LEXIS 1364 (2013).

OPINIONS OF ATTORNEY GENERAL

For discussion concerning 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. Op. Att'y Gen. 49 (12/1/98).

§ 153A-99. County employee political activity.

Purpose.— The purpose of this section is to ensure that county 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.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 county 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.
Definitions.— For the purposes of this section:
1. “County employee” or “employee” means any person employed by a county or any department or program thereof that is supported, in whole or in part, by county 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.
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.
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.
No employee may use county funds, supplies, or equipment for partisan purposes, or for political purposes except where such political uses are otherwise permitted by law.
To the extent that this section conflicts with the provisions of any local act, local ordinance, resolution, or policy, this section prevails to the extent of the conflict.

History. 1991, c. 619, s. 1; 1993, c. 298, s. 1.

Legal Periodicals.

For article, “Political Patronage and North Carolina Law: Is Political Conformity With the Sheriff a Permissible Job Requirement for Deputies?,” see 79 N.C.L. Rev. 1743 (2001).

CASE NOTES

Assistant Registers of Deeds. —

Employees of the register of deeds are not persons employed by a county or any department or program thereof, and in light of the statute’s plain language and analogous case law concerning deputy sheriffs an assistant register of deeds, appointed by and working at the pleasure of the elected register of deeds, is not a county employee within the meaning of the statute. Sims-Campbell v. Welch, 239 N.C. App. 503, 769 S.E.2d 643, 2015 N.C. App. LEXIS 166 (2015).

Deputy Sheriff. —

Plaintiff, a deputy sheriff, was not a county employee as defined in G.S. 153A-99 , and could be discharged based upon political conduct without violating her free speech rights under N.C. Const. art. I, § 14. Young v. Bailey, 240 N.C. App. 595, 771 S.E.2d 628, 2015 N.C. App. LEXIS 324 (2015), aff'd, 368 N.C. 665 , 781 S.E.2d 277, 2016 N.C. LEXIS 32 (2016).

In light of the distinct demarcation between county government and the office of the sheriff, a sheriff’s office is not a program or department of a county, and a deputy sheriff or employee of a sheriff’s office is not a county employee. Young v. Bailey, 368 N.C. 665 , 781 S.E.2d 277, 2016 N.C. LEXIS 32 (2016).

Deputy sheriff was not entitled to the protections provided in the statute and was not terminated in violation of public policy because the deputy was not a county employee. Young v. Bailey, 368 N.C. 665 , 781 S.E.2d 277, 2016 N.C. LEXIS 32 (2016).

County Sheriff’s Employees Not Covered by Statute. —

Former sheriff’s employees, including a deputy sheriff, were not “county employees” as defined in G.S. 153A-99 and, thus, were not entitled to the protections of that statute. Because this statute was the basis of the employees’ claim for wrongful termination in violation of public policy, this argument was without merit. McLaughlin v. Bailey, 240 N.C. App. 159, 771 S.E.2d 570, 2015 N.C. App. LEXIS 283 (2015), aff'd, 368 N.C. 618 , 781 S.E.2d 23, 2016 N.C. LEXIS 28 (2016).

Summary Judgment Granted in Retaliatory Discharge Case. —

In the former deputy sheriff’s retaliatory discharge in violation of G.S. 153A-99 cause of action against the sheriff and the surety, the sheriff and surety were entitled to summary judgment pursuant to G.S. 1A-1 , N.C. R. Civ. P. 56; the former deputy’s assertion that the former deputy was fired due to the former deputy’s affiliation with the sheriff’s primary election foe was insufficient to establish a nexus between the protected activity and the discharge, because the evidence of the nexus was from the former deputy’s deposition testimony that amounted to mere conjecture. Venable v. Vernon, 162 N.C. App. 702, 592 S.E.2d 256, 2004 N.C. App. LEXIS 250 (2004).

OPINIONS OF ATTORNEY GENERAL

The provisions of this section and G.S. 160A-169 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. Op. Att'y Gen. 1 (1/14/98).

§ 153A-99.1. County verification of employee work authorization.

Counties Must Use E-Verify. — Each county shall register and participate in E-Verify to verify the work authorization of new employees hired to work in the United States.
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.
Nondiscrimination. — This section shall be enforced without regard to race, religion, gender, ethnicity, or national origin.

History. 2011-263, s. 4.

§ 153A-100.

Reserved for future codification purposes.

Part 5. Board of Commissioners and Other Officers, Boards, Departments, and Agencies of the County.

§ 153A-101. Board of commissioners to direct fiscal policy of the county.

The board of commissioners has and shall exercise the responsibility of developing and directing the fiscal policy of the county government under the provisions and procedures of the Local Government Budget and Fiscal Control Act.

History. 1777, c. 129, s. 4, P.R; R.C., c. 28, s. 16; Code, s. 753; Rev., s. 1379; C.S., s. 1325; 1927, c. 91, s. 11; 1953, c. 973, s. 2; 1973, c. 822, s. 1.

CASE NOTES

Editor’s Note. —

Most of the cases cited below were decided under corresponding sections of former law.

The legislature may confer upon a county the power to create debts for necessary expenses, without the approval of a majority of the qualified voters in the county. Evans v. Commissioners of Cumberland, 89 N.C. 154 , 1883 N.C. LEXIS 203 (1883).

Necessity of Expense to Be Determined by Commissioners. —

What is a “necessary expense” for a county is to be determined by the sound judgment and discretion of its board of commissioners. Brodnax v. Groom, 64 N.C. 244 , 1870 N.C. LEXIS 71 (1870); Commissioners of Yancey County v. Road Comm'rs, 165 N.C. 632 , 81 S.E. 1001, 1914 N.C. LEXIS 326 (1914); Hargrave v. Board of Comm'rs, 168 N.C. 626 , 84 S.E. 1044, 1915 N.C. LEXIS 122 (1915); Wilson v. Holding, 170 N.C. 352 , 86 S.E. 1043, 1915 N.C. LEXIS 402 (1915).

The commissioners’ exercise of their discretion will not be reviewed except when mala fides is shown. Jackson v. Board of County Comm'rs, 171 N.C. 379 , 88 S.E. 521, 1916 N.C. LEXIS 89 (1916).

If the entire fund which can be raised by taxation is required to meet necessary expenses of an economical administration of the county government, and none can be diverted to pay its indebtedness without serious detriment to the public, none ought to be thus appropriated. Cromartie v. Commissioners of Bladen, 85 N.C. 211 , 1881 N.C. LEXIS 241 (1881).

As to the province of the courts and the legislature, see Burgin v. Smith, 151 N.C. 561 , 66 S.E. 607, 1909 N.C. LEXIS 323 (1909) (citing) Cromartie v. Commissioners of Bladen, 87 N.C. 134 , 1882 N.C. LEXIS 31 (1882); Hightower v. City of Raleigh, 150 N.C. 569 , 65 S.E. 279, 1909 N.C. LEXIS 100 (1909).

County May Hire Auditors. —

The commissioners of a county have the right to contract with skilled expert accountants for auditing of the books and accounts of the various departments of the county at a price agreed upon, and may order that such sum to be paid by the county treasurer out of county funds. Wilson v. Holding, 170 N.C. 352 , 86 S.E. 1043, 1915 N.C. LEXIS 402 (1915).

Support of county convicts must be paid out of the general county fund. Chambers v. Walker, 120 N.C. 401 , 27 S.E. 77, 1897 N.C. LEXIS 89 (1897).

Legislature to Determine Care of Indigents. —

It is the exclusive right of the legislature to determine how the indigents of the State who are entitled to support shall be ascertained, and from what fund and by whom allowances for their support shall be made. Board of Educ. v. Commissioners of Bladen, 113 N.C. 379 , 18 S.E. 661, 1893 N.C. LEXIS 87 (1893).

§ 153A-102. Commissioners to fix fees.

The board of commissioners may fix the fees and commissions charged by county officers and employees for performing services or duties permitted or required by law. The board may not, however, fix fees in the General Court of Justice or modify the fees of the register of deeds prescribed by G.S. 161-10 or the fees of the board of elections prescribed by G.S. 163-107 .

History. 1953, c. 1227, ss. 1-3; 1969, c. 358, s. 1; c. 1017; 1973, c. 822, s. 1; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.

Re-recodification; Technical and Conforming Changes.

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 reference.

Legal Periodicals.

For article, “A Localist Reading of Local Immigration Regulations,” see 86 N.C.L. Rev. 1619 (2008).

For article, “Public Education, Local Authority, and Democracy: The Implied Power of North Carolina Counties to Impose School Impact Fees,” see 33 Campbell L. Rev. 239 (2011).

CASE NOTES

Statute Does Not Authorize School Impact Fees. —

G.S. 153A-102 did not authorize a county to impose a “school impact fee” upon new residential construction; its plain language limited the power to fix only those fees charged by county officers and employees for performing services or duties permitted or required by law, and under G.S. 115C-408(b), it was the duty of a county itself, not its officers or employees, to provide adequate school facilities. Furthermore, the statute’s textual limitations on the power to charge fees indicated that the services were routine, document-oriented tasks. Durham Land Owners Ass'n v. County of Durham, 177 N.C. App. 629, 630 S.E.2d 200, 2006 N.C. App. LEXIS 1187 (2006).

OPINIONS OF ATTORNEY GENERAL

A county may charge a fee for issuing licenses pursuant to G.S. 127B-3 . See opinion of Attorney General to Mr. Garris N. Yarborough, Cumberland County Attorney, 55 N.C. Op. Att'y Gen. 41 (1985).

§ 153A-102.1. [Repealed]

Repealed by Session Laws 2019-111, s. 2.6(a), 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. 1; 2010-180, s. 11(a); repealed by 2019-111, s. 2.6(a), 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. 153A-102.1 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(a), 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 county shall provide notice to interested parties of the imposition” for “If a county has a Web site maintained by one or more of its employees, the county shall provide notice of the imposition” and deleted “on the county’s Web site” following “Part 2 of Article 18 of this Chapter,” and added the last sentence; added subdivisions (a)(1) through (a)(4); and added subsection (a1).

§ 153A-103. Number of employees in offices of sheriff and register of deeds.

Subject to the limitations set forth below, the board of commissioners may fix the number of salaried employees in the offices of the sheriff and the register of deeds. In exercising the authority granted by this section, the board of commissioners is subject to the following limitations:

Each sheriff and register of deeds elected by the people has the exclusive right to hire, discharge, and supervise the employees in his office. However, the board of commissioners must approve the appointment by such an officer of a relative by blood or marriage of nearer kinship than first cousin or of a person who has been convicted of a crime involving moral turpitude.
Each sheriff and register of deeds elected by the people is entitled to at least two deputies who shall be reasonably compensated by the county, provided that the register of deeds justifies to the Board of County Commissioners the necessity of the second deputy. Each deputy so appointed shall serve at the pleasure of the appointing officer.
Notwithstanding the foregoing provisions of this section, approval of the board of commissioners is not required for the reappointment or continued employment of a near relative of a sheriff or register of deeds who was not related to the appointing officer at the time of initial appointment.

History. 1953, c. 1227, ss. 1, 2; 1969, c. 358, s. 1; 1973, c. 822, s. 1; 1977, c. 36; 1979, c. 551; 1987, c. 362.

Legal Periodicals.

For a survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2281 (1997).

CASE NOTES

Assistant Registers of Deeds. —

Sheriff Can Make Official Government Policy. —

Official government policy can be established not only by the formal policymaking actions of the lawmakers, but also by the actions of officials with final policymaking authority; the sheriff is such an official, as indicated in subsection (1), which gives the sheriff exclusive control over supervision of employees in his office. Flood v. Hardy, 868 F. Supp. 809, 1994 U.S. Dist. LEXIS 16889 (E.D.N.C. 1994).

For purposes of 42 U.S.C.S. § 1983 liability, under North Carolina law, a sheriff had final policy making authority over personnel matters and had sole statutory responsibility for the care and custody of inmates at county jail. However, claims of excessive force, deliberate indifference, and failure to provide supervision and proper training failed because, inter alia, there were policies in effect requiring members of the sheriff’s office to use only necessary force, addressing medical needs of inmates and detainees, and providing training standards and requirements. Oliver v. Baity, 208 F. Supp. 3d 681, 2016 U.S. Dist. LEXIS 130305 (M.D.N.C. 2016).

Government Employees Cannot Impose Unconstitutional Conditions on Public Employment. —

Deputies work at the pleasure of the sheriff. However, government employees including sheriffs can neither impose unconstitutional conditions upon public employment such as requiring employees to relinquish their rights of free speech and association nor discharge employees for a constitutionally infirm reason. Joyner v. Lancaster, 553 F. Supp. 809, 1982 U.S. Dist. LEXIS 16543 (M.D.N.C. 1982).

Control of the employees hired by the sheriff is vested exclusively in the sheriff. The sheriff has the exclusive right to fire any deputy or employee in his office. The only authority vested in the board of commissioners is in determining the number of employees the sheriff can hire and the ability to approve the appointment of a relative or a person convicted of a crime involving moral turpitude. Peele v. Provident Mut. Life Ins. Co., 90 N.C. App. 447, 368 S.E.2d 892, 1988 N.C. App. LEXIS 566 (1988).

Sheriff Not Liable for County’s Salary Administration. —

Because there was absolutely no evidence that defendant sheriff “acted in concert” with defendant county, as alleged, or had anything to do with the administration of plaintiffs’ salaries, he was an unnecessary party to their case. Hubbard v. County of Cumberland, 143 N.C. App. 149, 544 S.E.2d 587, 2001 N.C. App. LEXIS 235 (2001).

This section explicitly grants sheriffs exclusive power over employment decisions, and the North Carolina courts have interpreted this statute to deny sheriffs’ employees any property right in their employment. Jackson v. Long, 102 F.3d 722, 1996 U.S. App. LEXIS 32955 (4th Cir. 1996).

Employee of Sheriff Held Not an Employee of the County. —

Plaintiff’s argument that even though she was hired by the sheriff, she remained the employee of the county, and that thus all the protections and privileges provided by the Board of Commissioners to other county employees should have been afforded her, was without merit. Peele v. Provident Mut. Life Ins. Co., 90 N.C. App. 447, 368 S.E.2d 892, 1988 N.C. App. LEXIS 566 (1988).

County, having no control over sheriff’s deputy department, could not be a party to any employment contract deputy may have had, and therefore, deputy could not recover against the county for breach of her employment contract. Spencer v. Byrd, 899 F. Supp. 1439, 1995 U.S. Dist. LEXIS 10753 (M.D.N.C. 1995).

Deputy Sheriff Not County Employee. —

County May Be Bound by Sheriff’s Decisions. —

In North Carolina, where the sheriff is given exclusive control over the supervision of his employees, including deputies and jailers, the sheriff may bind the county by his decisions. Flood v. Hardy, 868 F. Supp. 809, 1994 U.S. Dist. LEXIS 16889 (E.D.N.C. 1994).

County is not liable for deputy’s or sheriff’s actions, as their employer. Clark v. Burke County, 117 N.C. App. 85, 450 S.E.2d 747, 1994 N.C. App. LEXIS 1162 (1994).

County Not Liable for Sheriff’s Decision. —

County could not be liable under 42 U.S.C. 1983 for sheriff’s employment decisions where the State gives the sheriff final policymaking authority on employment decisions. Harter v. Vernon, 953 F. Supp. 685, 1996 U.S. Dist. LEXIS 4975 (M.D.N.C. 1996), aff'd, 101 F.3d 334, 1996 U.S. App. LEXIS 30258 (4th Cir. 1996), different results reached on reconsid., dismissed without prejudice, 980 F. Supp. 162, 1997 U.S. Dist. LEXIS 17828 (M.D.N.C. 1997).

Because, pursuant to this section, sheriff/defendant, and not the county, had exclusive responsibility for discharging plaintiff/jailer (who claimed the discharge was retaliatory), the district court properly granted summary judgment for the county on plaintiff’s G.S. 1983 claims. Knight v. Vernon, 214 F.3d 544, 2000 U.S. App. LEXIS 12098 (4th Cir. 2000).

There was no North Carolina statute authorizing suit against a county’s sheriff’s department for employment law violations since, pursuant to G.S. 153A-103 , a sheriff has the exclusive right to hire, discharge, and supervise the employees in his office; thus, the sheriff, rather than the department or associated county, could be held liable for employment law violations within the department. Efird v. Riley, 342 F. Supp. 2d 413, 2004 U.S. Dist. LEXIS 22140 (M.D.N.C. 2004).

Deputy sheriffs enjoy no property right in continued employment. Burns v. Brinkley, 933 F. Supp. 528, 1996 U.S. Dist. LEXIS 11887 (E.D.N.C. 1996).

The fact that North Carolina has established a generous pension system for its public employees as part of its compensatory and incentive package does not confer upon those employees a property interest in continued employment; the programs are merely part of the consideration forming the basis for public employment contracts, and do not alter the at-will nature of such employment relationships. Burns v. Brinkley, 933 F. Supp. 528, 1996 U.S. Dist. LEXIS 11887 (E.D.N.C. 1996).

Plaintiffs who made no claim that they were exempted from the employment-at-will rule other than that their employment was subject to a general order allowing appeal to a Termination Review Board had no property interest in their employment which could form the basis for a denial of due process. Buchanan v. Hight, 133 N.C. App. 299, 515 S.E.2d 225, 1999 N.C. App. LEXIS 413 (1999).

Sheriff Must Be Named as Defendant in Title VII Suit. —

Pursuant to G.S. 153A-103 , the duly elected sheriff of a county under G.S. 162-1 has the exclusive right to hire, discharge, and supervise the employees in his office; thus, each county’s sheriff is an “employer” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., and had to be named as a defendant in a Title VII suit. Efird v. Riley, 342 F. Supp. 2d 413, 2004 U.S. Dist. LEXIS 22140 (M.D.N.C. 2004).

Employee Was an At-Will Employee. —

Employee failed to state a claim for wrongful termination in violation of public policy as the employee was an at-will employee under G.S. 153A-103(1), and the employee did not meet a heightened pleading standing by alleging a violation of any “explicit statutory or constitutional provision” or that a sheriff encouraged the employee to violate any law that might result in potential harm to the public. Gillis v. Montgomery County Sheriff's Dep't, 191 N.C. App. 377, 663 S.E.2d 447, 2008 N.C. App. LEXIS 1314 (2008).

Where a sheriff filed a Fed. R. Civ. P. 12(b)(6) motion as to a former deputy’s state wrongful termination claim, the complaint made clear that the deputy’s term of employment expired with sheriff’s term of office, and the sheriff’s decision not to reappoint him did not amount to wrongful termination. Randleman v. Johnson, 162 F. Supp. 3d 482, 2016 U.S. Dist. LEXIS 18732 (M.D.N.C. 2016).

Termination for Political Reasons. —

Deputy sheriff’s free speech rights were not violated because mutual confidence and loyalty between a sheriff and a deputy were crucial in accomplishing the sheriff’s policies and duties; thus, the deputy could be lawfully terminated for political reasons under the exception to prohibited political terminations; by standing in the elected sheriff’s shoes, a deputy sheriff fills a role in which loyalty to the elected sheriff is necessary to ensure that the sheriff’s policies are carried out. Young v. Bailey, 368 N.C. 665 , 781 S.E.2d 277, 2016 N.C. LEXIS 32 (2016).

Discharge of Sheriff’s Employees Based Upon Political Matters. —

Deputy sheriff was discharged based upon political conduct without violating free speech rights. Dismissal of another employee’s claim for violation of the employee’s rights to free speech was appropriate because the sheriff produced evidence that the employee was discharged for failure to comply with the sheriff’s department rules and policies, and the employee failed to produce specific evidence that the employee’s discharge was politically motivated. McLaughlin v. Bailey, 240 N.C. App. 159, 771 S.E.2d 570, 2015 N.C. App. LEXIS 283 (2015), aff'd, 368 N.C. 618 , 781 S.E.2d 23, 2016 N.C. LEXIS 28 (2016).

Termination of Assistant Registers of Deeds. —

Assistant registers of deeds implement policies of the elected registers of deeds, exercise discretion, and act as agents for registers of deeds, who are bound by, and may be held civilly liable for, the acts of their assistants, plus assistant registers of deeds serve at the pleasure of their elected superiors, such that, as in this case, a register of deeds may terminate the appointment of an assistant register of deeds for political reasons without violating the federal or state constitution or state public policy. Sims-Campbell v. Welch, 239 N.C. App. 503, 769 S.E.2d 643, 2015 N.C. App. LEXIS 166 (2015).

§ 153A-104. Reports from officers, employees, and agents of the county.

The board of commissioners may require any officer, employee, or agent of the county to make to the board, either directly or through the county manager, periodic or special reports concerning any matter connected with the officer’s, employee’s or agent’s duties. The board may require that such a report be made under oath. If a person fails or refuses to obey a reasonable order to make a report, issued pursuant to this section, the board may apply to the appropriate division of the General Court of Justice for an order requiring that its order be obeyed. The court has jurisdiction to issue these orders.

History. 1868, c. 20, s. 8; Code, s. 707; Rev., s. 1318; C.S., s. 1297; 1973, c. 822, s. 1.

§§ 153A-105 through 153A-110.

Reserved for future codification purposes.

Part 6. Clerk to the Board of Commissioners.

§ 153A-111. Appointment; powers and duties.

The board of commissioners shall appoint or designate a clerk to the board. The board may designate the register of deeds or any other county officer or employee as clerk. The clerk shall perform any duties that may be required by law or the board of commissioners. The clerk shall serve as such at the pleasure of the board.

History. Const., art. 7, s. 2; Code, s. 710; 1895, c. 135, s. 4; Rev., s. 1324; C.S., s. 1309; 1955, c. 247, s. 1; 1963, c. 372; 1969, c. 207; 1973, c. 822, s. 1.

CASE NOTES

County Commissioners’ Actions Not Protected by Legislative Immunity. —

The county commissioners’ refusal to reappoint plaintiff as clerk, the elimination of the clerk’s salary, the consolidation of the clerk’s position with another, and the refusal to select plaintiff for the combined position constituted administrative actions that were not entitled to immunity. Alexander v. Holden, 66 F.3d 62, 1995 U.S. App. LEXIS 27787 (4th Cir. 1995).

§§ 153A-112, 153A-113.

Reserved for future codification purposes.

Part 7. County Attorney.

§ 153A-114. Appointment; duties.

The board of commissioners shall appoint a county attorney to serve at its pleasure and to be its legal adviser.

History. 1973, c. 822, s. 1.

§§ 153A-115 through 153A-120.

Reserved for future codification purposes.

Article 6. Delegation and Exercise of the General Police Power.

§ 153A-121. General ordinance-making power.

A county may by ordinance define, regulate, prohibit, or abate acts, omissions, or conditions detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the county; and may define and abate nuisances.
This section does not authorize a county to regulate or control vehicular or pedestrian traffic on a street or highway under the control of the Board of Transportation, nor to regulate or control any right-of-way or right-of-passage belonging to a public utility, electric or telephone membership corporation, or public agency of the State. In addition, no county ordinance may regulate or control a highway right-of-way in a manner inconsistent with State law or an ordinance of the Board of Transportation.
This section does not impair the authority of local boards of health to adopt rules and regulations to protect and promote public health.

History. 1963, c. 1060, ss. 1, 11/2; 1965, cc. 388, 567, 1083, 1158; 1967, c. 495, s. 2; 1969, c. 36, s. 1; 1971, c. 702, ss. 1-3; 1973, c. 507, s. 5; c. 822, s. 1.

Local Modification.

Orange: 1991, c. 246, s. 5.

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.

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 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 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 on local legislation in the General Assembly, discussing former G.S. 153-9(55), see 45 N.C.L. Rev. 340 (1967).

For article, “Regulating Obscenity Through the Power to Define and Abate Nuisances,” see 14 Wake Forest L. Rev. 1 (1978).

For survey of 1983 developments in property law, see 62 N.C.L. Rev. 1346 (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 article, “A Localist Reading of Local Immigration Regulations,” see 86 N.C.L. Rev. 1619 (2008).

For article, “Public Education, Local Authority, and Democracy: The Implied Power of North Carolina Counties to Impose School Impact Fees,” see 33 Campbell L. Rev. 239 (2011).

CASE NOTES

Editor’s Note. —

Some of the cases cited below were decided under former G.S. 153-9.

Ordinance Upheld. —

County ordinance which regulated the location of adult and sexually oriented businesses (but did not prohibit them) for the stated purpose of promoting the health, safety and morals and general welfare of the citizenry of the county was well within the parameters of this section. Maynor v. Onslow County, 127 N.C. App. 102, 488 S.E.2d 289, 1997 N.C. App. LEXIS 785 , cert. denied, 347 N.C. 400 , 496 S.E.2d 385, 1997 N.C. LEXIS 848 (1997).

The enactment of the Sign Control Ordinance of Transylvania County, North Carolina, was a valid exercise of the general police power of Transylvania County, North Carolina, under G.S. 153A-121 , and, therefore, Transylvania County did not have to follow the enactment procedures of ch. 153A, art. 18 in enacting the ordinance. Transylvania County v. Moody, 151 N.C. App. 389, 565 S.E.2d 720, 2002 N.C. App. LEXIS 748 (2002).

Former G.S. 153-9(55) Was a Home Rule Statute. —

Former G.S. 153-9(55), authorizing boards of county commissioners to adopt ordinances for the better government of the county, was a Home Rule statute, applicable throughout the State. It enabled the county commissioners of every county to enact ordinances in the exercise of the general police power within the prescribed territory, just as other statutes enable the governing bodies of cities and towns to enact ordinances in the exercise of the general police powers within their corporate limits. Whitney Stores, Inc. v. Clark, 277 N.C. 322 , 177 S.E.2d 418, 1970 N.C. LEXIS 601 (1970).

Statute was General Law. —

Former G.S. 153-9(55) was a general law and therefore did not contravene N.C. Const. 1868, Art. II, § 29. Whitney Stores, Inc. v. Clark, 277 N.C. 322 , 177 S.E.2d 418, 1970 N.C. LEXIS 601 (1970).

Conferring General Police Powers. —

Former G.S. 153-9(55) did not confer or withhold authority in respect of specific activities; on the contrary, it conferred authority to enact ordinances in the exercise of the general police power. In this respect, the statute was similar to the statutes which confer general police power upon cities and towns. Whitney Stores, Inc. v. Clark, 277 N.C. 322 , 177 S.E.2d 418, 1970 N.C. LEXIS 601 (1970); State v. Tenore, 280 N.C. 238 , 185 S.E.2d 644, 1972 N.C. LEXIS 1224 (1972).

Same Power as That Conferred Upon Cities and Towns. —

The authority conferred by former G.S. 153-9(55) upon the boards of commissioners of the respective counties was the same as that conferred upon cities and towns by G.S. 160A-174 and 160A-181. State v. Tenore, 280 N.C. 238 , 185 S.E.2d 644, 1972 N.C. LEXIS 1224 (1972).

County Cannot Enact Its Own Employment Discrimination Ordinance. —

G.S. 153A-121 did not empower a county to enact its own employment discrimination ordinance, as the county only possessed those powers validly delegated to it by the State, and the State’s attempted delegation of this power to the county violated N.C. Const., Art. II, § 24. Williams v. Blue Cross Blue Shield, 357 N.C. 170 , 581 S.E.2d 415, 2003 N.C. LEXIS 595 (2003).

Regulation of Signs Held Constitutional. —

The off-premise/on-premise classification is a constitutionally valid basis for regulation of outdoor advertising signs. Summey Outdoor Adv., Inc. v. County of Henderson, 96 N.C. App. 533, 386 S.E.2d 439, 1989 N.C. App. LEXIS 1116 (1989).

County ordinance regulating off-premises signs larger than 15 square feet held to meet the constitutional requirements of due process. Summey Outdoor Adv., Inc. v. County of Henderson, 96 N.C. App. 533, 386 S.E.2d 439, 1989 N.C. App. LEXIS 1116 (1989).

Regulation of Signs Did Not Constitute a Taking. —

Five year amortization provisions of county ordinance regulating off-premises signs of over 15 square feet were sufficient, and the ordinance did not constitute a taking of plaintiff’s property without compensation. Summey Outdoor Adv., Inc. v. County of Henderson, 96 N.C. App. 533, 386 S.E.2d 439, 1989 N.C. App. LEXIS 1116 (1989).

This section and G.S. 153A-340 do not operate exclusively of each other. Summey Outdoor Adv., Inc. v. County of Henderson, 96 N.C. App. 533, 386 S.E.2d 439, 1989 N.C. App. LEXIS 1116 (1989).

Subsection (a) of this section confers general police power upon cities and towns. Summey Outdoor Adv., Inc. v. County of Henderson, 96 N.C. App. 533, 386 S.E.2d 439, 1989 N.C. App. LEXIS 1116 (1989).

Legislative Authority of County Board of Commissioners. —

A county board of commissioners has no legislative authority not granted to it expressly or by necessary implication from expressly granted powers. State v. Tenore, 280 N.C. 238 , 185 S.E.2d 644, 1972 N.C. LEXIS 1224 (1972).

Power of General Assembly to Delegate Authority to County Boards. —

Subject to constitutional limitations, the power of the General Assembly to delegate to county commissioners the authority to adopt ordinances in the lawful exercise of the police power is well established. Whitney Stores, Inc. v. Clark, 277 N.C. 322 , 177 S.E.2d 418, 1970 N.C. LEXIS 601 (1970).

Courts Are Not Concerned with Motives, Wisdom or Expediency of Board’s Acts. —

If the board of commissioners does not exceed its delegated or constitutional authority, the courts are not concerned with the motives, wisdom or expediency which prompt its actions. Whitney Stores, Inc. v. Clark, 277 N.C. 322 , 177 S.E.2d 418, 1970 N.C. LEXIS 601 (1970).

When the most that can be said against an ordinance is that it is fairly debatable whether it is an unreasonable, arbitrary or unequal exercise of power, the courts will not interfere. County of Hoke v. Byrd, 107 N.C. App. 658, 421 S.E.2d 800, 1992 N.C. App. LEXIS 795 (1992).

Ordinance May Not Forbid Conduct Dealt with by Statute. —

The board of commissioners of a county cannot enact a valid ordinance forbidding certain conduct if a statewide statute in effect at the time the ordinance in question is adopted deals specifically with the identical conduct. State v. Tenore, 280 N.C. 238 , 185 S.E.2d 644, 1972 N.C. LEXIS 1224 (1972).

Repeal of Statute Does Not Breathe Life into Ordinance. —

The repeal of a statewide law which, during its life, prohibited the enactment of a county ordinance, is prospective and does not breathe life into an ordinance which was beyond the authority of the ordaining body when it was adopted. State v. Tenore, 280 N.C. 238 , 185 S.E.2d 644, 1972 N.C. LEXIS 1224 (1972).

A county’s zoning authority is limited: it can be applied only to buildings within the county’s borders which are outside city limits, and it is confined to the purposes of promoting health, safety, morals, or the general welfare. Davidson County v. City of High Point, 321 N.C. 252 , 362 S.E.2d 553, 1987 N.C. LEXIS 2555 (1987).

Authority to Regulate the Development of Real Estate. —

County correctly tied an Adequate Public Facilities Ordinance (APFO) to its zoning and subdivision regulation authority, and G.S. 153A-121 did not provide an independent source of authority for the APFO because the General Assembly enacted zoning and subdivision regulation statutes for the purposes of delineating the authority of county governments to regulate the development of real estate. Union Land Owners Ass'n v. County of Union, 201 N.C. App. 374, 689 S.E.2d 504, 2009 N.C. App. LEXIS 2216 (2009).

Right of County to Proscribe Obscenity Which Is Not Forbidden by State Law. —

Nothing in G.S. 14-190.1 through 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 or counties 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 N.C. LEXIS 1224 (1972).

Authority to Regulate Signs. —

Fact that defendant county had authority to regulate signs under the zoning power in G.S. 153A-340 did not mean that it could not regulate signs in a similar manner under the general police powers in this section, allowing regulation of “conditions detrimental to the health, safety or welfare of its citizens and the peace and dignity of the county.” Summey Outdoor Adv., Inc. v. County of Henderson, 96 N.C. App. 533, 386 S.E.2d 439, 1989 N.C. App. LEXIS 1116 (1989).

County’s moratorium on outdoor advertising signs did not require a notice or a public hearing prior to passage, as it was enacted pursuant to the county’s general police powers, and a property owner did not have a statutory vested right to erect a sign. PNE AOA Media, L.L.C. v. Jackson County, 146 N.C. App. 470, 554 S.E.2d 657, 2001 N.C. App. LEXIS 981 (2001).

Defendant county’s ordinance regulating off-premises signs larger than 15 square feet was well within the parameters of this section; while it might have been more desirable and better planning for defendant county to adopt a county-wide zoning ordinance, the fact that defendant did not do so did not preclude it from regulating outdoor advertising signs under this section. Summey Outdoor Adv., Inc. v. County of Henderson, 96 N.C. App. 533, 386 S.E.2d 439, 1989 N.C. App. LEXIS 1116 (1989).

Authority for County Ordinance Concerning Drive-In Theaters. —

Former G.S. 153-9(55) provided plenary authority for enacting a county ordinance making it unlawful to operate a drive-in motion picture theater near streets or highways in such a manner that the screen is visible to passing motorists. Variety Theaters, Inc. v. Cleveland County, 282 N.C. 272 , 192 S.E.2d 290, 1972 N.C. LEXIS 934 (1972).

As to constitutionality of county ordinance concerning drive-in theaters, see Variety Theaters, Inc. v. Cleveland County, 282 N.C. 272 , 192 S.E.2d 290, 1972 N.C. LEXIS 934 (1972).

Authority to Regulate Location of Adult and Sexually Oriented Businesses. —

Failure of a county to adopt a county-wide comprehensive zoning plan did not preclude it from regulating the location of adult and sexually oriented businesses pursuant to its police powers. Onslow County v. Moore, 129 N.C. App. 376, 499 S.E.2d 780, 1998 N.C. App. LEXIS 554 (1998).

Regulation of Sexually Oriented Businesses. —

County’s amended ordinance requiring the licensure and other conditions of sexually oriented businesses was a civil regulatory law that did not violate the ex post facto clause of the United States Constitution. Pitt County v. Deja Vue, Inc., 185 N.C. App. 545, 650 S.E.2d 12, 2007 N.C. App. LEXIS 1937 (2007).

Sunday Closing Ordinances. —

Former G.S. 153-9(55) conferred authority to enact Sunday closing ordinances upon the boards of commissioners of the respective counties. State v. Atlas, 283 N.C. 165 , 195 S.E.2d 496, 1973 N.C. LEXIS 929 (1973).

As to constitutionality of Sunday closing ordinances, see State v. Atlas, 283 N.C. 165 , 195 S.E.2d 496, 1973 N.C. LEXIS 929 (1973).

Authority for County Ordinance Concerning Collection and Disposal of Solid Waste. —

County governments are delegated by the State with a general police power. Additionally, counties are specifically vested by statute with authority to regulate by ordinance the collection and disposal of solid waste within their jurisdictions. In order to effect this regulatory power and meet their police power responsibilities, counties are specifically authorized by statute to enact ordinances granting exclusive franchises to commercially collect or dispose of solid waste within all or a defined portion of the county. Stillings v. City of Winston-Salem, 63 N.C. App. 618, 306 S.E.2d 489, 1983 N.C. App. LEXIS 3179 (1983), rev'd, 311 N.C. 689 , 319 S.E.2d 233, 1984 N.C. LEXIS 1760 (1984).

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 N.C. LEXIS 2555 (1987).

Regulation of Asphalt Plants. —

A county’s enactment of a moratorium on the building of asphalt plants and adoption of a polluting industries development ordinance pursuant to the statute’s general grant of police power, rather than through the specific statutory provisions governing zoning, was proper. Tri-County Paving, Inc. v. Ashe County, 281 F.3d 430, 2002 U.S. App. LEXIS 2747 (4th Cir. 2002).

Regulation of Junkyards. —

Requirements of ordinance which imposed expensive requirements on junkyard owners which could prohibit them from continuing to use their property in one manner did not exceed the boundaries of the board’s discretion and, therefore, the ordinance would be left undisturbed. County of Hoke v. Byrd, 107 N.C. App. 658, 421 S.E.2d 800, 1992 N.C. App. LEXIS 795 (1992).

Notice Required for Ordinance Regulating Issuance of Building Permits. —

Where the county argued that it did not have to issue notice in compliance with G.S. 153A-323 because the ordinance, imposing a moratorium on the issuance of building permits for the construction or operation of heavy industry, was enacted pursuant to the county’s police power under G.S. 153A-121 , the claim failed; the county adopted an ordinance that imposed a moratorium on the issuance of building permits, which was governed by G.S. 153A-323, and which was, therefore, not governed by G.S. 153A-121 . Sandy Mush Props., Inc. v. Rutherford County, 160 N.C. App. 683, 586 S.E.2d 849, 2003 N.C. App. LEXIS 1934 (2003), op. withdrawn, sub. op., 164 N.C. App. 162, 595 S.E.2d 233, 2004 N.C. App. LEXIS 743 (2004).

Trial court erred in granting a county’s summary judgment motion and in denying a property owner’s summary judgment motion where: (1) an ordinance prohibiting heavy industry was enacted after the county was enjoined from enforcing a moratorium on the issuance of building permits in the same area, (2) the moratorium was covered by N.C. Gen. Stat. ch. 153A, art. 18 as it dealt with the issuance of building permits, (3) the county could not avoid the notice requirements G.S. 153A-323, by stating that the moratorium was enacted pursuant to the police powers under G.S. 153A-121 , and (4) although the county complied with the notice requirements before enacting the ordinance, the county had already been ordered to issue the building permit. Sandy Mush Props., Inc. v. Rutherford County, 164 N.C. App. 162, 595 S.E.2d 233, 2004 N.C. App. LEXIS 743 (2004).

Notice Requirements for Zoning Ordinance Could Not be Avoided by Citing to Police Powers. —

County’s failure to comply with G.S. 153A-323 in enacting the Buncombe County, N.C. Multi-Family Dwelling Ordinance (Ordinance) rendered the ordinance invalid; although the county claimed that the Ordinance was adopted in the exercise of its general police power pursuant to G.S. 153A-121 , the Ordinance substantially affected land use, was therefore a zoning ordinance, and the county was not permitted to evade the legislative notice requirements imposed by G.S. 153A-323 by labeling the Ordinance an exercise of police power. Thrash Ltd. P'ship v. County of Buncombe, 195 N.C. App. 727, 673 S.E.2d 689, 2009 N.C. App. LEXIS 256 (2009).

Statute Did Not Authorize “School Impact Fees.” —

G.S. 153A-121 and G.S. 153A-340 did not authorize a county to impose “school impact fees” on new residential construction. They did not allow a county to charge a fee for providing its own governmental services, such as school construction, to the public. Durham Land Owners Ass'n v. County of Durham, 177 N.C. App. 629, 630 S.E.2d 200, 2006 N.C. App. LEXIS 1187 (2006).

County Exceeded Statutory Authority With Regard to Zoning Regulations for Manufactured Homes. —

OPINIONS OF ATTORNEY GENERAL

This section does not grant authority to a county to regulate the height of state owned and operated structures under its general police power. See opinion of Attorney General to Mr. Jeffery M. Hedrick, Watauga County Attorney, 2000 N.C. AG LEXIS 33 (9/20/2000).

§ 153A-122. Territorial jurisdiction of county ordinances.

Except as otherwise provided in this Article, the board of commissioners may make any ordinance adopted pursuant to this Article applicable to any part of the county not within a city.
The governing board of a city may by resolution permit a county ordinance adopted pursuant to this Article to be applicable within the city. In the resolution permitting the county ordinance to be applicable within the city, the governing board of the city may specify that any signage required by the county ordinance be in compliance with city ordinances. The city may by resolution withdraw its permission to such an ordinance. If it does so, the city shall give written notice to the county of its withdrawal of permission; 30 days after the day the county receives this notice the county ordinance ceases to be applicable within the city.

History. 1963, c. 1060, ss. 1, 1 1/2; 1965, cc. 388, 567, 1083, 1158; 1967, c. 495, s. 2; 1969, c. 36, s. 1; 1971, c. 702, ss. 1-3; 1973, c. 822, s. 1; 2015-166, s. 1.

Local Modification.

Catawba: 1987 (Reg. Sess., 1988), c. 1021, s. 3; Currituck: 1985 (Reg. Sess., 1986), c. 875; 2001-33; Davie: 1985 (Reg. Sess., 1986), c. 830, s. 1; New Hanover: 1981, c. 458; Rowan: 1985, c. 63, ss. 2, 4.

Effect of Amendments.

Session Laws 2015-166, s. 1, effective July 23, 2015, added the (a) and (b) designations; and in subsection (b), deleted “In addition” at the beginning of the first sentence and inserted the second sentence pertaining to signage.

CASE NOTES

Power to Enact Ordinances Giving Franchise Rights. —

In general, a State legislature has the power to delegate to the state or inferior agency the authority to make ordinances, such as those giving rise to franchise rights, as it deems appropriate in the lawful exercise of the police power. Stillings v. City of Winston-Salem, 311 N.C. 689 , 319 S.E.2d 233, 1984 N.C. LEXIS 1760 (1984).

Authority of counties to issue exclusive solid waste collection franchises is derived from this section and G.S. 153A-136 . Stillings v. City of Winston-Salem, 311 N.C. 689 , 319 S.E.2d 233, 1984 N.C. LEXIS 1760 (1984).

Effect of Annexation on Franchises. —

Given the limited territorial jurisdiction of a county ordinance granting exclusive solid waste collection franchises, such franchises were not protected from the city’s actions in annexing some areas of the county served by the franchisees and providing free solid waste collection services in the newly annexed areas, and therefore did not survive annexation as to those areas which became part of the city. Stillings v. City of Winston-Salem, 311 N.C. 689 , 319 S.E.2d 233, 1984 N.C. LEXIS 1760 (1984).

Geographical Limitations. —

Trial court properly entered summary judgment to a county and town because they were engaged in a governmental function, were not subject to a statutory time limitation, and the town had standing to enforce certain subdivision bonds because the power to issue subdivision control ordinances was geographically limited, nothing restricted the assignability of the bonds, the county was authorized to enact subdivision control ordinances, and the bonds did not specify a completion date. Town of Black Mt. v. Lexon Ins. Co., 238 N.C. App. 180, 768 S.E.2d 302, 2014 N.C. App. LEXIS 1273 (2014).

OPINIONS OF ATTORNEY GENERAL

See opinion of Attorney General to Mr. F.L. Carr, 43 N.C. Op. Att'y Gen. 409 (1974).

§ 153A-123. Enforcement of ordinances.

A county may provide for 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.
Except for the types of ordinances listed in subsection (b1) of this section, violation of a county ordinance may be a misdemeanor or infraction as provided by G.S. 14-4 only if the county specifies such in the ordinance. 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 . Notwithstanding G.S. 153A-45 , no ordinance specifying a criminal penalty may be enacted at the meeting in which it is first introduced. (b1) No ordinance of the following types may impose a criminal penalty:
1. Any ordinance adopted under Article 18 of this Chapter, Planning and Regulation of Development or, its successor, Chapter 160D of the General Statutes, except for those ordinances related to unsafe buildings.
2. Any ordinance adopted pursuant to G.S. 153A-134 , Regulating and licensing businesses, trades, etc.
3. Any ordinance adopted pursuant to G.S. 153A-138 , Registration of mobile homes, house trailers, etc.
4. Any ordinance adopted pursuant to G.S. 153A-140.1 , Stream-clearing programs.
5. Any ordinance adopted pursuant to G.S. 153A-143 , Regulation of outdoor advertising or, its successor, G.S. 160D-912, Outdoor advertising.
6. Any ordinance adopted pursuant to G.S. 153A-144 , Limitations on regulating solar collectors or, its successor, G.S. 160D-914, Solar collectors.
7. Any ordinance adopted pursuant to G.S. 153A-145 , Limitations on regulating cisterns and rain barrels.
8. Any ordinance regulating trees.
An ordinance may provide that violation subjects the offender to a civil penalty to be recovered by the county 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. (c1) An ordinance may provide for the recovery of a civil penalty by the county for violation of the fire prevention code of the State Building Code as authorized under G.S. 143-139 .
An ordinance may provide that it may be enforced by an appropriate equitable remedy issuing from a court of competent jurisdiction. In such a case, the General Court of Justice has jurisdiction to issue any order that may be appropriate, and it is not a defense to the county’s application for equitable relief that there is an adequate remedy at law.
An ordinance that makes unlawful a condition existing upon or use made of real property may provide that it may be enforced by injunction and order of abatement, and the General Court of Justice has jurisdiction to issue such an order. When a violation of such an ordinance occurs, the county 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.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 county may execute the order of abatement. If the county executes the order, it has a lien on the property, in the nature of a mechanic’s and materialman’s lien, for the costs of executing the order. 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 was heard and shall be conditioned on the defendant’s full compliance with the terms of the order of abatement within the time fixed by the judge. Cancellation of an order of abatement does not suspend or cancel an injunction issued in conjunction with the order.
Subject to the express terms of the ordinance, a county ordinance may be enforced by any one or more of the remedies authorized by this section.
A county ordinance may provide, when appropriate, that each day’s continuing violation is a separate and distinct offense.
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.

History. 1973, c. 822, s. 1; 1985, c. 764, s. 34; 1985 (Reg. Sess., 1986), c. 852, s. 17; 1993, c. 329, s. 5; 2013-331, s. 1; 2021-138, s. 13(a).

Local Modification.

Orange: 1989, c. 478, s. 3; 1995, c. 339, s. 3.

Editor’s Note.

The Rules of Civil Procedure are found in G.S. 1A-1 .

Session Laws 2021-138, s. 13(d), made the amendments to this section by Session Laws 2021-138, s. 13(a), effective December 1, 2021, and applicable to offenses and violations committed on or after that date.

Session Laws 2021-138, s. 22(a), is a severability clause.

Effect of Amendments.

Session Laws 2021-138, s. 13(a), in subsection (b), rewrote the first sentence and added the third sentence; and added subsection (b1). For effective date and applicability, see editor’s note.

CASE NOTES

Enforcement of Zoning Ordinances. —

This section and G.S. 153A-345 (repealed — see now G.S. 153A-345.1 and G.S. 160A-388) give the superior court the power to enforce zoning ordinances through the issuance of an injunction. Mize v. County of Mecklenburg, 80 N.C. App. 279, 341 S.E.2d 767, 1986 N.C. App. LEXIS 2170 (1986).

Ordinance’s Enforcement Provisions Not Followed. —

Although G.S. 153A-123 authorized Transylvania County, North Carolina, to collect a civil penalty for the violation of the terms of the Sign Control Ordinance of Transylvania County, North Carolina, a civil penalty was erroneously imposed on defendants, a property owner and an advertising company, where the enforcement procedures of the ordinance were not followed. Transylvania County v. Moody, 151 N.C. App. 389, 565 S.E.2d 720, 2002 N.C. App. LEXIS 748 (2002).

Ordinance Itself Need Not Provide for Equitable Enforcement. —

It is unnecessary for a zoning ordinance itself to contain any specific provision for equitable enforcement because G.S. 153A-324 allows any remedy under this section to be used at the county’s election as a matter of right and without qualification, unless the county’s zoning ordinance provides otherwise. New Hanover County v. Pleasant, 59 N.C. App. 644, 297 S.E.2d 760, 1982 N.C. App. LEXIS 3187 (1982).

Verification of Complaint Not Required. —

In a suit wherein a county filed a declaratory judgment action pursuant to G.S. 153A-123 seeking enforcement of an ordinance and seeking equitable relief, plaintiffs were not required to verify the complaint; therefore, no error occurred as a result of the trial court refusing to dismiss plaintiff’s complaint for failure to have the pleading verified. Pitt County v. Deja Vue, Inc., 185 N.C. App. 545, 650 S.E.2d 12, 2007 N.C. App. LEXIS 1937 (2007).

§ 153A-124. Enumeration not exclusive.

The enumeration in this Article or other portions of this Chapter of specific powers to define, regulate, prohibit, or abate acts, omissions, or conditions is not exclusive, nor is it a limit on the general authority to adopt ordinances conferred on counties by G.S. 153A-121 .

History. 1973, c. 822, s. 1.

§ 153A-125. Regulation of solicitation campaigns, flea markets and itinerant merchants.

A county may by ordinance regulate, restrict, or prohibit the solicitation of contributions from the public for charitable or eleemosynary purposes, and also the business activities of itinerant merchants, salesmen, promoters, drummers, peddlers, flea market operators and flea market vendors and hawkers. These ordinances may include, but are not 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. A county may charge a fee for a permit issued pursuant to such an ordinance.

History. 1967, c. 80, ss. 1-21/2; 1973, c. 822, s. 1; 1987, c. 708, s. 7.

CASE NOTES

Analysis

I. General Consideration
II. Regulation and Taxation by Cities and Counties

I.General Consideration

Editor’s Note. —

The cases cited below were decided under former G.S. 105-53 .

Tax Is on Occupation, Not Goods. —

Peddlers and transient dealers are commonly taxed a specific sum because they are likely to escape any other tax. A peddler’s tax is on the occupation, not on the goods, and one who engages in the business, whether as agent or owner, must pay it. State v. Rhyne, 119 N.C. 905 , 26 S.E. 126, 1896 N.C. LEXIS 406 (1896).

Statute Not Applicable to Citizens of Other States. —

The provision of a statute similar to this was held unconstitutional on the grounds that it was made to apply to citizens of other states, thus regulating interstate commerce. In re Spain, 47 F. 208, 1891 U.S. App. LEXIS 1410 (C.C.D.N.C. 1891). See also In re Flinn, 57 F. 496, 1893 U.S. App. LEXIS 2789 (C.C.D.N.C. 1893).

Subsections (e) and (g) relate exclusively to privileges taxes upon peddlers. State v. Bridgers, 211 N.C. 235 , 189 S.E. 869, 1937 N.C. LEXIS 48 (1937).

“Peddler” Defined. —

A peddler is one who sells and delivers the identical goods he carries about with him. State v. Lee, 113 N.C. 681 , 18 S.E. 713, 1893 N.C. LEXIS 151 (1893).

A peddler is primarily one who travels around on foot, selling or bartering the identical goods he carries. State v. Frank, 130 N.C. 724 , 41 S.E. 785, 1902 N.C. LEXIS 149 (1902).

Peddling Is Lawful Business. —

Under general State law, “peddling,” as defined in this section, is a lawful business or occupation. State v. Byrd, 259 N.C. 141 , 130 S.E.2d 55, 1963 N.C. LEXIS 511 (1963).

Peddling Is a Privilege and Not a Right. —

To peddle is not a matter of right under the laws, which any person can demand upon the payment of the tax. It is a privilege. It is discretionary with the county commissioners whether or not they will grant a license to a peddler. The privilege is personal to the applicant, and is not assignable. State v. Rhyne, 119 N.C. 905 , 26 S.E. 126, 1896 N.C. LEXIS 406 (1896).

State license issued under this section authorizes the licensee to engage in the business of peddling. State v. Byrd, 259 N.C. 141 , 130 S.E.2d 55, 1963 N.C. LEXIS 511 (1963).

State License for Peddling Ice Cream. —

Under a license issued in accordance with general State law, the sale and offering for sale of ice cream products on public streets in the area covered by such license is a lawful business or occupation. State v. Byrd, 259 N.C. 141 , 130 S.E.2d 55, 1963 N.C. LEXIS 511 (1963).

Sales by Samples. —

It was held that a former statute, similar to this section, did not apply to sales by sample of goods not at the time of sale within the State and ready for immediate delivery, but applied only where goods were actually exposed and offered for sale, and ready for delivery at once to the purchaser. In re Flinn, 57 F. 496, 1893 U.S. App. LEXIS 2789 (C.C.D.N.C. 1893).

A person who travels from house to house on foot selling goods by sample, and afterwards delivers them on foot, is not a peddler. State v. Frank, 130 N.C. 724 , 41 S.E. 785, 1902 N.C. LEXIS 149 (1902).

One who sells goods by sample, which goods are shipped to the purchaser in care of one who sold them and delivered by him, is a peddler. State v. Franks, 127 N.C. 510 , 37 S.E. 70, 1900 N.C. LEXIS 119 (1900).

A picture dealer who contracts to sell pictures, has them sent out to him, delivers to the purchaser, and receives the price agreed upon beforehand, is no peddler. City of Greensboro v. Williams, 124 N.C. 167 , 32 S.E. 492, 1899 N.C. LEXIS 33 (1899).

Selling Fruit in Wholesale Lots. —

It was held that a former statute, similar to this section, did not apply to a person selling watermelons in wholesale lots in the city of Salisbury, to be shipped from a nearby town, and only delivered to those from whom he had taken orders. State v. Ninestein, 132 N.C. 1039 , 132 N.C. 4039 , 43 S.E. 936, 1903 N.C. LEXIS 388 (1903).

The words “any articles of the farm,” in an earlier statute, were used to embrace all the products of the farm, and a farmer who butchered cattle raised on his farm and sold the beef was not a peddler. State v. Smith, 173 N.C. 772 , 92 S.E. 325, 1917 N.C. LEXIS 413 (1917).

Use of Motor Vehicles. —

And the statutory provisions contemplate the use of motor vehicles by peddlers in the prosecution of their business or occupation. State v. Byrd, 259 N.C. 141 , 130 S.E.2d 55, 1963 N.C. LEXIS 511 (1963).

Presumption as to Having License. —

If a peddler is required by proper authorities to exhibit his license and he fails to do so the presumption is that he has none. State v. Crump, 104 N.C. 763 , 10 S.E. 468, 1889 N.C. LEXIS 272 (1889).

Former Subsection Requiring License for Display of Goods by One Not Regular Retailer Was Unconstitutional. —

Former subsection (e), requiring one not a regular retail merchant in North Carolina to obtain a $250 license to entitle him to display goods for purpose of securing orders for retail sale, violated “commerce” clause of federal Constitution as applied to a New York merchandise establishment which rented display room in a North Carolina hotel for several days and took orders for goods corresponding to samples, which orders were filled by shipping direct to customers from New York City, where regular retail merchants in North Carolina were subject to only an annual $1 license tax for privilege of doing business. Best & Co. v. Maxwell, 311 U.S. 454, 61 S. Ct. 334, 85 L. Ed. 275, 1940 U.S. LEXIS 1 (1940) (commented on in 18 N.C.L. Rev. 48) .

II.Regulation and Taxation by Cities and Counties

Subsection (g) Does Not Prohibit City Tax on Trades and Businesses. —

A tax levied under the general authority given a city in its charter, authorizing the levying of a tax upon trades and businesses carried on within its corporate limits is not such a tax as is prohibited by subsection (g) of this section. The prohibition relates to license taxes levied “under this section.” The tax complained of was not levied “under this section.” State v. Bridgers, 211 N.C. 235 , 189 S.E. 869, 1937 N.C. LEXIS 48 (1937).

There Is No Express Grant of Powers as to Peddling. —

Section 160A-11 which sets forth express powers conferred on municipal corporations, contains no provision relating to the prohibition or regulation of the business or occupation of peddling. State v. Byrd, 259 N.C. 141 , 130 S.E.2d 55, 1963 N.C. LEXIS 511 (1963).

Other Than to Impose License Taxes. —

No express power has been conferred by the General Assembly on municipal corporations to prohibit or to regulate the business or occupation of peddling otherwise than by imposing license taxes thereon. State v. Byrd, 259 N.C. 141 , 130 S.E.2d 55, 1963 N.C. LEXIS 511 (1963).

Whether City May Prohibit or Regulate Selling on Streets Depends on Delegated Powers. —

Whether a municipal corporation has the power to regulate or prohibit the sale of articles of merchandise on its streets and sidewalks depends upon the legislative power delegated to it by the State legislature. State v. Byrd, 259 N.C. 141 , 130 S.E.2d 55, 1963 N.C. LEXIS 511 (1963).

City cannot, by ordinance, prohibit conduct that is legalized and sanctioned by the General Assembly. Eastern Carolina Tastee-Freez, Inc. v. City of Raleigh, 256 N.C. 208 , 123 S.E.2d 632, 1962 N.C. LEXIS 436 (1962) (holding invalid a municipal ordinance prohibiting the peddling of ice cream along the streets and sidewalks of a city) .

City Has Implied Power to Regulate Selling on Streets from Mobile Units. —

In the exercise of express powers conferred upon municipal corporations by the General Assembly a municipal corporation has the implied power to adopt an ordinance providing for the reasonable regulation, but not for the prohibition, of the sale and offering for sale of merchandise upon its streets from mobile units. State v. Byrd, 259 N.C. 141 , 130 S.E.2d 55, 1963 N.C. LEXIS 511 (1963).

Discretion of County Commissioners to Grant Exemptions. —

The discretion vested in the county commissioners to exempt from the peddler’s tax the “poor and infirm” is necessary to the administration of statutes like this, and will not be interfered with unless arbitrarily exercised. Smith v. Wilkins, 164 N.C. 135 , 80 S.E. 168, 1913 N.C. LEXIS 23 (1913).

OPINIONS OF ATTORNEY GENERAL

If an auctioneer travels into a city or county in which he does not maintain a regular place of business and sells or auctions property owned by him, he must obtain an itinerant merchant license pursuant to this section, as well as comply with any ordinances of the particular city or county governing itinerant merchants. See opinion of Attorney General to Mr. DeWitt S. McCarley, City Attorney, Greenville, North Carolina, 55 N.C. Op. Att'y Gen. 38 (1985).

An auctioneer is not deemed to be an itinerant merchant if he travels into a city or county in which he does not maintain a regular place of business and auctions merchandise belonging to another person, whether or not that person maintains a regular place of business in the particular city or county. Therefore, such an auctioneer would not be required to comply with G.S. 105-53(d) or any local ordinances of the particular city or county governing itinerant merchants. However, if the owner of the goods to be auctioned off does not maintain a regular place of business in the particular city or county, that person would be required to comply with G.S. 105-53(d) and any local ordinances governing itinerant merchants. See opinion of Attorney General to Mr. DeWitt S. McCarley, City Attorney, Greenville, North Carolina, 55 N.C. Op. Att'y Gen. 38 (1985).

§ 153A-126. Regulation of begging.

A county 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. 1973, c. 822, s. 1.

§ 153A-127. Abuse of animals.

A county may by ordinance define and prohibit the abuse of animals.

History. 1973, c. 822, s. 1.

§ 153A-128. Regulation of explosive, corrosive, inflammable, or radioactive substances.

A county may by ordinance regulate, restrict, or prohibit the sale, possession, storage, use or conveyance of any explosive, corrosive, inflammable, or radioactive substance or of any weapon or instrumentality of mass death and destruction.

History. 1973, c. 822, s. 1.

CASE NOTES

Constitutionality. —

G.S. 153A-128 , which permitted the county to enact its ordinances regulating the use and storage of explosives, did not constitute an unlawful local law under N.C. Const., Art. II, § 24, since it applied to all counties in the State. S. Blasting Servs. v. Wilkes County, 288 F.3d 584, 2002 U.S. App. LEXIS 7853 (4th Cir. 2002).

§ 153A-129. Firearms.

Except as provided in this section, a county may by ordinance regulate, restrict, or prohibit the discharge of firearms at any time or place except in any of the following instances:
1. When used to take birds or animals pursuant to Chapter 113, Subchapter IV.
2. When used in defense of person or property.
3. When used pursuant to lawful directions of law-enforcement officers.
A county may by ordinance prohibit hunting on Sunday as allowed under G.S. 103-2 , provided the ordinance complies with all of the following:
1. The ordinance shall be applicable from January 1 until December 31 of any year of effectiveness.
2. The ordinance shall allow for individuals hunting in an adjacent county with no restriction on Sunday hunting to retrieve any animal lawfully shot from the adjacent county.
3. The ordinance shall be applicable to the entire county.
4. The ordinance shall not be effective unless approved by a majority of those voting in a county-wide referendum held as provided in G.S. 163-287 . Such special election shall only be held at the time provided by G.S. 163-287 (a)(1).
A county may regulate the display of firearms on the public roads, sidewalks, alleys, or other public property.
This section does not limit a county’s authority to take action under Article 1A of Chapter 166A of the General Statutes.

History. 1973, c. 822, s. 1; 2006-264, s. 16; 2012-12, s. 2(yy); 2015-144, s. 5(b); 2017-6, s. 3; 2017-182, s. 3(a); 2018-146, ss. 3.1(a), (b), 6.1.

Local Modification.

Davidson: 1989 (Reg. Sess., 1990), c. 852, s. 1; Davie: 1989 (Reg. Sess., 1990), c. 929, s. 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 technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification. Pursuant to this authority, the Revisor, in subdivision (b)(4), substituted “G.S. 163A-1592” for “G.S. 163-287” in the first sentence, and substituted “G.S. 163A-1592(a)(1)” for “G.S. 163-287(a)(1)” in the second 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 references.

Editor’s Note.

Session Laws 2015-144, s. 5(c), as amended by Session Laws 2017-182, s. 3(b), provides: “Subsection (b) of this section becomes effective October 1, 2017. A county may adopt an ordinance to prohibit Sunday hunting prior to October 1, 2017, but any such ordinance shall not become effective until October 1, 2017.”

Session Laws 2015-144, s. 9(a) is a severability clause.

Effect of Amendments.

Session Laws 2006-264, s. 16, effective August 27, 2006, substituted “Subchapter IV” for “Subchapter III” in the middle of the first sentence.

Session Laws 2015-144, s. 5(b), effective October 1, 2017, rewrote the section.

Session Laws 2017-182, s. 3(a), effective October 1, 2017, added subdivision (b)(4).

§ 153A-130. Pellet guns.

A county may by ordinance regulate, restrict, or prohibit the sale, possession, or use 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. 1973, c. 822, s. 1.

§ 153A-131. Possession or harboring of dangerous animals.

A county may by ordinance regulate, restrict, or prohibit the possession or harboring 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. 1973, c. 822, s. 1; 1977, c. 407, s. 1.

Local Modification.

Richmond 2017-46, s. 1.

Cross References.

As to the power of cities to regulate, restrict or prohibit the possession or harboring of dangerous animals, see G.S. 160A-187 .

§ 153A-132. Removal and disposal of abandoned and junked motor vehicles; abandoned vessels.

Grant of Power. — A county may by ordinance prohibit the abandonment of motor vehicles on public grounds and private property within the county’s ordinance-making jurisdiction and on county-owned property wherever located. The county may enforce the ordinance by removing and disposing of abandoned or junked motor vehicles according to the procedures prescribed in this section.
Definitions. — “Motor vehicle” includes any machine designed or intended to travel over land or water by self-propulsion or while attached to self-propelled vehicle.
1. An “abandoned motor vehicle” is one that:
  1. Is left on public grounds or county-owned property in violation of a law or ordinance prohibiting parking; or
  2. Is left for longer than 24 hours on property owned or operated by the county; or
  3. Is left for longer than two hours on private property without the consent of the owner, occupant, or lessee of the property; or
  4. Is left for longer than seven days on public grounds.
2. 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 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
  4. Does not display a current license plate.
Removal of Vehicles. — A county may remove to a storage garage or area an abandoned or junked motor vehicle found to be in violation of an ordinance adopted pursuant to this section. A vehicle may not be removed from private property, however, without the written request of the owner, lessee, or occupant of the premises unless the board of commissioners or a duly authorized county official or employee has declared the vehicle to be a health or safety hazard. Appropriate county officers and employees have a right, upon presentation of proper credentials, to enter on any premises within the county ordinance-making jurisdiction at any reasonable hour in order to determine if any vehicles are health or safety hazards. The county may require a person requesting the removal from private property of an abandoned or junked motor vehicle to indemnify the county against any loss, expense, or liability incurred because of the vehicle’s removal, storage, or sale.When an abandoned or junked motor vehicle is removed, the county shall give notice to the owner as required by G.S. 20-219.11(a) and (b).
Hearing Procedure. — Regardless of whether a county does its own removal and disposal of motor vehicles or contracts with another person to do so, the county 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 county 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 county 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 county may destroy it.
, (f) Repealed by Session Laws 1983, c. 420, s. 10. (g) No Liability. — No person nor any county may be held to answer in a civil or criminal action to any owner or other person legally entitled to the possession of an abandoned, junked, lost, or stolen motor vehicle for disposing of the vehicle as provided in this section.
(h) Exceptions. — This section does not apply to any vehicle in an enclosed building, to 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 county.

(i) A county may by ordinance prohibit the abandonment of vessels in navigable waters within the county’s ordinance-making jurisdiction, subject to the provisions of this subsection. The provisions of this section shall apply to abandoned vessels in the same manner that they apply to abandoned or junked motor vehicles to the extent that the provisions may apply to abandoned vessels. For purposes of this subsection, an “abandoned vessel” is one that meets any of the following:
1. A vessel that is moored, anchored, or otherwise located for more than 30 consecutive days in any 180 consecutive-day period without permission of the dock owner.
2. A vessel that is in danger of sinking, has sunk, is resting on the bottom, or is located such that it is a hazard to navigation or is an immediate danger to other vessels.
  Shipwrecks, vessels, cargoes, tackle, and other underwater archeological remains that have been in place for more than 10 years shall not be considered abandoned vessels and shall not be removed under the provisions of this section without the approval of the Department of Natural and Cultural Resources, which is the legal custodian of these properties pursuant to G.S. 121-22 and G.S. 121-23 . This subsection applies only to the counties set out in G.S. 113A-103(2).

History. 1971, c. 489; 1973, c. 822, s. 1; 1975, c. 716, s. 5; 1983, c. 420, ss. 8-10; 1997-456, s. 27; 2013-182, s. 2; 2015-241, ss. 14.6(n), (o), 14.30(s).

Local Modification.

Wake: 1979, c. 375.

Editor’s Note.

Subdivision designations in subsection (b) were renumbered pursuant to S.L. 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.

Session Laws 2015-241, s. 14.30(s) provides in part: “In other instances in the General Statutes in which there is a reference to the Department of Cultural Resources or a derivative thereof, the Revisor of Statutes may replace that reference with a reference to the Department of Natural and Cultural Resources, as appropriate.” Pursuant to that authority, “Department of Natural and Cultural Resources” was substituted for “Department of Cultural Resources” in subsection (i) at the direction of the Revisor of Statutes.

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 2013-182, s. 2, added subsection (i). See editor’s note for applicability.

Session Laws 2015-241, s. 14.6(o), effective July 1, 2015, added the last sentence of subsection (i).

§ 153A-132.1. To provide for the removal and disposal of trash, garbage, etc.

The board of county commissioners of any county is hereby authorized to enact ordinances governing the removal, method or manner of disposal, depositing or dumping of any trash, debris, garbage, litter, discarded cans or receptacles or any waste matter whatsoever within the rural areas of the county and outside and beyond the corporate limits of any municipality of said county. An ordinance adopted pursuant hereto may make it unlawful to place, discard, dispose, leave or dump any trash, debris, garbage, litter, discarded cans or receptacles or any waste matter whatsoever upon a street or highway located within that county or upon property owned or operated by the county unless such trash, debris, garbage, litter, discarded cans or receptacles or any waste matter is placed in a designated location or container for removal by a specific garbage or trash service collector.

Boards of county commissioners may also provide by ordinance enacted pursuant to this section, that the placing, discarding, disposing, leaving or dumping of the articles forbidden by this section shall, for each day or portion thereof the articles or matter are left, constitute a separate offense, and that a person in violation of 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. 952.

Local Modification.

Davie: 1985 (Reg. Sess., 1986), c. 830, s. 1; Rowan: 1985, c. 63, ss. 1, 4.

§ 153A-132.2. Regulation, restraint and prohibition of abandonment of junked motor vehicles.

A county may by ordinance regulate, restrain or prohibit the abandonment of junked motor vehicles on public grounds and on private property within the county’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 and 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 counties. Nothing in this section shall be construed to authorize a county 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.For purposes of this section, the term “junked motor vehicle” means a vehicle that does not display a current license plate and that:
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). (a1) 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 board of commissioners or a duly authorized county 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.
  (a2) The county may require any person requesting the removal of a junked or abandoned motor vehicle from private property to indemnify the county 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 county shall give notice to the owner as required by G.S. 20-219.11(a) and (b).
  
  (a3) Hearing Procedure. — Regardless of whether a county does its own removal and disposal of motor vehicles or contracts with another person to do so, the county 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 county 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 county 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.
    (a4) 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.
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.

History. 1983, c. 841, s. 1; 1985, c. 737, s. 1; 1987, c. 42, s. 1; c. 451, s. 1; 1987 (Reg. Sess., 1988), c. 902, s. 1; 1989, c. 743, s. 1.

Editor’s Note.

As enacted by Session Laws 1983, c. 841, s. 1, effective October 1, 1983, this section was applicable only to the Counties of Dare, Stokes, Alleghany, Carteret and Columbus. Subsequently, Session Laws 1985, c. 737, s. 1, effective July 12, 1985, amended this section by making it applicable to an additional 19 counties. Subsequently, Session Laws 1987, cc. 42 and 451, added six additional counties to those listed in subsection (a). At the direction of the Revisor of Statutes, the section has been set out above as G.S. 153A-132.2 .

§ 153A-133. Noise regulation.

A county 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. 1973, c. 822, s. 1.

Local Modification.

Currituck: 1991, c. 5; Rockingham: 1991 (Reg. Sess., 1992), c. 996, s. 1.

CASE NOTES

Ordinance Declared Partially Unconstitutional. —

The partial unconstitutionality of county’s noise ordinance did not support the granting of plaintiff’s motions to dismiss the charges, where part of it remained valid and enforceable, and the State was entitled to proceed with the prosecution under this ordinance. State v. Garren, 117 N.C. App. 393, 451 S.E.2d 315, 1994 N.C. App. LEXIS 1253 (1994).

§ 153A-134. Regulating and licensing businesses, trades, etc.

A county 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 county may, consistent with the general law of the State, require applicants for licenses to be examined and charge a reasonable fee therefor. This section does not authorize a county 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.
Repealed by Session Laws 2015-237, s. 4, effective October 1, 2015.
Nothing in this section shall authorize a county to regulate and license a TNC service regulated under Article 10A of Chapter 20 of the General Statutes.

History. 1868, c. 20, s. 8; Code, s. 707; Rev., s. 1318; C.S., s. 1297; 1973, c. 822, s. 1; 2013-413, s. 12.1(c); 2015-237, s. 4.

Editor’s Note.

Session Laws 2013-413, s. 60(c), which was the last provision in Part VII of the act, entitled “Industrial Commission,” as amended by Session Laws 2014-115, s. 17, provides: “This Part becomes effective July 1, 2015.” Session Laws 2013-413, s. 61(b), provides: “Except as otherwise provided, this act is effective when it becomes law [August 23, 2013].”

Session Laws 2013-413, s. 61(a), is a severability clause.

Effect of Amendments.

Session Laws 2015-237, s. 4, effective October 1, 2015, deleted subsection (b) which read: “This section does not impair the county’s power to levy privilege license taxes on occupations, businesses, trades, professions, and other activities pursuant to G.S. 153A-152 .”; and 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

For cases as to licenses to retail spirituous and other liquors, decided prior to enactment of Chapter 18B and former Chapters 18 and 18A, relating to regulation of alcoholic beverages, see W.O. Muller & Co. v. Commissioners of Buncombe County, 89 N.C. 171 , 1883 N.C. LEXIS 206 (1883); State v. Voight, 90 N.C. 741 , 1884 N.C. LEXIS 323 (1884); Jones v. Commissioners of Moore County, 106 N.C. 436 , 11 S.E. 514, 1890 N.C. LEXIS 330 (1890); Board of Comm'rs v. Smith, 110 N.C. 417 , 14 S.E. 972, 1892 N.C. LEXIS 77 (1892) (all decided under former law prior to enactment of this Chapter).

Regulation of Employment Discrimination. —

G.S. 160A-492 and the Orange County, N.C. Civil Rights Ordinance art. II, § 2.1(a) violated N.C. Const., Art. II, § 24, because neither G.S. 160A-492 , the enabling statute, nor the ordinance suggested any rational basis for justifying the treatment of Orange County differently from all other North Carolina counties as to employment rights; by seeking to curb unlawful discrimination by regulating covered employers, the enabling legislation and of the ordinance had the practical effect of regulating labor, which was forbidden by N.C. Const., Art. II, § 24(1)(j). Williams v. Blue Cross Blue Shield, 357 N.C. 170 , 581 S.E.2d 415, 2003 N.C. LEXIS 595 (2003).

§ 153A-135. Regulation of places of amusement.

A county 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 itinerant shows or exhibitions of any kind. Places of amusement and entertainment include coffeehouses, cocktail lounges, nightclubs, beer halls, and similar establishments, but any regulation of such places shall be consistent with any permit or license issued by the North Carolina Alcoholic Beverage Control Commission.

History. 1963, c. 1060, ss. 1, 11/2; 1965, cc. 388, 567, 1083, 1158; 1967, c. 495, s. 2; 1969, c. 36, s. 1; 1971, c. 702, ss. 1-3; 1973, c. 822, s. 1; 1981, c. 412, ss. 4, 5.

§ 153A-136. Regulation of solid wastes.

A county may by ordinance regulate the storage, collection, transportation, use, disposal, and other disposition of solid wastes. Such an ordinance may:
1. Regulate the activities of persons, firms, and corporations, both public and private.
2. Require each person wishing to commercially collect or dispose of solid wastes to secure a license from the county and prohibit any person from commercially collecting or disposing of solid wastes without a license. A fee may be charged for a license.
3. Grant a franchise to one or more persons for the exclusive right to commercially collect or dispose of solid wastes within all or a defined portion of the county and prohibit any other person from commercially collecting or disposing of solid wastes in that area. The board of commissioners may set the terms of any franchise; provided, however, no franchise shall be granted for a period of more than 30 years, except for a franchise granted to a sanitary landfill for the life-of-site of the landfill pursuant to G.S. 130A-294 (b1), which may not exceed 60 years. A franchise granted for a sanitary landfill shall be subject to all requirements pertaining thereto under G.S. 130A-294 . No franchise by its terms may impair the authority of the board of commissioners to regulate fees as authorized by this section.
4. Regulate the fees, if any, that may be charged by licensed or franchised persons for collecting or disposing of solid wastes.
5. Require the source separation of materials prior to collection of solid waste for disposal.
6. Require participation 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 county may not require an owner to convey, sell, donate, or otherwise transfer recovered materials to the county 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 county or its designee, then ownership of these materials is transferred to the county or its designee. (6a) 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 county employees specially appointed as environmental enforcement officers.
7. Include any other proper matter.
Any ordinance adopted pursuant to this section shall be consistent with and supplementary to any rules adopted by the Commission for Public Health or the Department of Environmental Quality.
The board of commissioners of a county 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.
As used in this section, “solid waste” means nonhazardous solid waste, that is, solid waste as defined in G.S. 130A-290 but not including hazardous waste.
A county 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.
Entry pursuant to subsection (e) of this section shall not constitute a trespass or taking of property.

History. 1955, c. 1050; 1957, cc. 120, 376; 1961, c. 40; c. 514, s. 1; cc. 711, 803; c. 806, s. 1; 1965, c. 452; 1967, cc. 34, 90; c. 183, s. 1; cc. 304, 339; c. 495, s. 4; 1969, cc. 79, 155, 176; c. 234, s. 1; c. 452; c. 1003, s. 4; 1973, c. 476, s. 128; c. 822, s. 1; 1989 (Reg. Sess., 1990), c. 1009, s. 1; 1991 (Reg. Sess., 1992), c. 1013, s. 1; 1993, c. 165, s. 1; 1997-443, s. 11A.123; 2001-512, s. 5; 2007-182, s. 2; 2007-550, s. 11(a); 2015-241, s. 14.30(u); 2017-10, s. 3.2(d); 2018-114, s. 21(c).

Local Modification.

Orange: 2000-107, s. 2; 2002-117, s. 1.

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.

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:

“(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 Environment and Natural Resources] 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 Environment or Natural Resources].” The act became effective July 22, 1992.

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.”

Session Laws 2017-10, s. 5.1 , is a severability clause.

Sessions Laws 2018-114, s. 29, is a severability clause.

Effect of Amendments.

Session Laws 2007-182, s. 2, effective July 5, 2007, substituted “Commission for Public Health” for “Commission for Health Services” in subsection (b).

Session Laws 2007-550, s. 11(a), effective August 1, 2007, added subsections (e) and (f).

Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted “Department of Environmental Quality” for “Department of Environment and Natural Resources” in subsection (b).

Session Laws 2017-10, s. 3.2(d), effective July 1, 2017, substituted “franchise; provided, however, no franchise shall be granted for a period of more than 30 years, except for a franchise granted to a sanitary landfill for the life-of-site of the landfill pursuant to G.S. 130A-294(b1), which may not exceed 60 years” for “franchise, except that no franchise may be granted for a period exceeding 30 years, nor may any” in subdivision (a)(3).

Session Laws 2018-114, s. 21(c), effective June 27, 2018, added the penultimate sentence in subdivision (a)(3).

CASE NOTES

Constitutionality of Former G.S. 153-272. —

Former G.S. 153-272, authorizing counties to regulate private collectors of garbage, was not an unconstitutional delegation of legislative power, but came within the exception permitting the delegation to municipal corporations and counties of power to legislate concerning local problems. Porter v. Suburban San. Serv., Inc., 283 N.C. 479 , 196 S.E.2d 760, 1973 N.C. LEXIS 995 (1973) (decided under former G.S. 153-272).

For history of former statute, see Lafayette Transp. Serv., Inc. v. County of Robeson, 283 N.C. 494 , 196 S.E.2d 770, 1973 N.C. LEXIS 996 (1973).

Power to Enact Ordinances Giving Franchise Rights. —

Authority of County Ordinance Concerning Collection and Disposal of Solid Waste. —

Authority of counties to issue exclusive solid waste collection franchises is derived from G.S. 153A-122 and this section. Stillings v. City of Winston-Salem, 311 N.C. 689 , 319 S.E.2d 233, 1984 N.C. LEXIS 1760 (1984).

County was without power to impose its own fee schedule on city for landfill operated by the city but located in the county. Cabarrus County v. City of Charlotte, 71 N.C. App. 192, 321 S.E.2d 476, 1984 N.C. App. LEXIS 3782 (1984).

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 G.S. 160A-314 . Therefore, the county could not enforce the ordinance against a 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 N.C. App. LEXIS 3782 (1984).

Consideration of Alternative Sites. —

Subsection (c) requires a board of commissioners to give careful and thorough consideration to alternative sites for a landfill within the county. Greene Citizens for Responsible Growth, Inc. v. Greene County Bd. of Comm'rs, 143 N.C. App. 702, 547 S.E.2d 480, 2001 N.C. App. LEXIS 321 (2001).

Superior court did not err in concluding that G.S. 153A-136(c) was inapplicable to a county’s application for a proposed landfill site because the actions of the county’s board were sufficient to constitute selection of the landfill site prior to the effective date of the subsection. Accordingly, the county was not required to consider alternative sites and socioeconomic and demographic data, or to hold a public hearing prior to selecting the site. County of Wake v. N.C. Dep't of Env't, 155 N.C. App. 225, 573 S.E.2d 572, 2002 N.C. App. LEXIS 1632 (2002).

Motion to dismiss plaintiffs’ Fourteenth Amendment and Title VI of the Civil Rights Act of 1964’s intentional discrimination claims with regard to placement of a landfill was denied only to the extent that they were based on an alleged failure to follow G.S. 153A-136(c) because the court had previously ruled that if the county’s alleged violation of G.S. 153A-136(c) was no longer relevant, then it would no longer be used as proof of the county’s wrongdoing by plaintiffs. Franks v. Ross, 2003 U.S. Dist. LEXIS 21929 (E.D.N.C. Nov. 21, 2003).

Effect of Annexation on Franchises. —

Competing Government Service. —

The word “commercially,” as used in this section, leads to the conclusion that a commercial service franchise does not provide protection to the holder against government service which would compete with it. Stillings v. City of Winston-Salem, 311 N.C. 689 , 319 S.E.2d 233, 1984 N.C. LEXIS 1760 (1984).

§ 153A-137. [Repealed]

Repealed by Session Laws 2006-151, s. 10, effective January 1, 2007.

§ 153A-138. Registration of mobile homes, house trailers, etc.

A county may by ordinance provide for the annual registration of mobile homes, house trailers and similar vehicular equipment designed for use as living or business quarters and for the display of a sticker or other device thereon as evidence of such registration. No fee shall be charged for such registration.

History. 1975, c. 693.

§ 153A-139. Regulation of traffic at parking areas and driveways.

The governing body of any county 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.

History. 1979, c. 745, s. 1.

Local Modification.

Wake: 1981, c. 256.

§ 153A-140. Abatement of public health nuisances.

A county shall have authority, subject to the provisions of Article 57 of Chapter 106 of the General Statutes, to remove, abate, or remedy everything that is dangerous or prejudicial to the public health or safety. Pursuant to this section, a board of commissioners 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, and, if not paid, shall be a lien upon the land or premises where the nuisance arose, and shall be collected as unpaid taxes. The authority granted by this section may only be exercised upon adequate notice, the right to a hearing, and the right to appeal to the General Court of Justice. Nothing in this section shall be deemed to restrict or repeal the authority of any municipality to abate or remedy health nuisances pursuant to G.S. 160A-174 , 160A-193, or any other general or local law. This section shall not affect bona fide farms, but any use of farm property for nonfarm purposes is subject to this section.

History. 1981 (Reg. Sess., 1982), c. 1314, s. 1; 2002-116, s. 2.

§ 153A-140.1. Stream-clearing programs.

A county 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.
The actions of a county to clear obstructions from a stream shall not create or increase the responsibility of the county for the clearing or maintenance of the stream, or for flooding of the stream. In addition, actions by a county to clear obstructions from a stream shall not create in the county 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 county for negligence that might be found under otherwise applicable law.
Nothing in this section shall be construed to affect existing rights of the State to control or regulate streams or activities within streams. In implementing a stream-clearing program, the county shall comply with all requirements in State or federal statutes and rules.

History. 2005-441, s. 1.

Editor’s Note.

The preamble to Session Laws 2005-441, provides: “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,”

§ 153A-140.2. Annual notice to chronic violators of public nuisance ordinance.

A county may notify a chronic violator of the county’s public nuisance ordinance that, if the violator’s property is found to be in violation of the ordinance, the county 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. The notice shall be sent by certified mail. A chronic violator is a person who owns property whereupon, in the previous calendar year, the county gave notice of violation at least three times under any provision of the public nuisance ordinance.

History. 2009-287, s. 2.

Editor’s Note.

Session Laws 2009-287, s. 4, provides, in part: “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 [July 10, 2009], 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.”

§ 153A-141. [Repealed]

Repealed by Session Laws 1995, c. 501, s. 3.

§ 153A-142. Curfews.

A county may by an appropriate ordinance impose a curfew on persons of any age less than 18.

History. 1997-189, s. 2.

Legal Periodicals.

For 1997 legislative survey, see 20 Campbell L. Rev. 417 (1998).

§ 153A-143. [Repealed]

Repealed by Session Laws 2019-111, s. 2.6(d), 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. 1; repealed by 2019-111, s. 2.6(d), 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. 153A-143 pertained to regulation of outdoor advertising.

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

“(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.”

§ 153A-144. [Repealed]

Repealed by Session Laws 2019-111, s. 2.6(f), 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. 2; 2009-553, s. 2; repealed by 2019-111, s. 2.6(f), 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. 153A-144 pertained to the limitations on regulating solar collectors.

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

“(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 2009-553, s. 2, effective December 1, 2009, substituted “residential property” for “detached single-family residence” in the first and second sentences of subsection (a) and at the end of subsection (b); and added the last sentence in subsection (a).

§ 153A-145. Limitations on regulating cisterns and rain barrels.

No county 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 county 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(d).

§ 153A-145.1. Transportation impact mitigation ordinances prohibited.

No county 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(b).

Editor’s Note.

Session Laws 2013-413, s. 61(b), provides: “Except as otherwise provided, this act is effective when it becomes law [August 23, 2013].” Session Laws 2013-413, s. 60(c), as amended by Session Laws 2014-115, s. 17, provides: “This Part becomes effective July 1, 2015.”

Session Laws 2013-413, s. 61(a), is a severability clause.

§ 153A-145.2. Limitations on regulating soft drink sizes.

No county 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. 3.

Editor’s Note.

Session Laws 2013-309, s. 3, enacted this section as G.S. 153A-146 . It has been renumbered as G.S. 153A-145.2 at the direction of the Revisor of Statutes.

§ 153A-145.3. Counties enforce ordinances within public trust areas.

Notwithstanding the provisions of G.S. 113-131 or any other provision of law, a county 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 county 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 equipment, personal property, or debris upon the State’s ocean beaches. A county may enforce any ordinance adopted pursuant to this section or any other provision of law upon the State’s ocean beaches located within the county’s jurisdictional boundaries to the same extent that a county may enforce ordinances within the county’s jurisdictional boundaries. A county may enforce an ordinance adopted pursuant to this section by any remedy provided for in G.S. 153A-123 . For purposes of this section, the term “ocean beaches” has the same meaning as in G.S. 77-20(e) .
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 counties 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.

History. 2015-70, s. 1.

§ 6. Limitations on standards of care for farm animals.

Notwithstanding any other provision of law, no county 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.

History. 2015-192, s. 1.

§ 153A-145.5. Adoption of sanctuary ordinance prohibited.

No county 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.
No county 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(a).

§ 153A-145.6. Requiring compliance with voluntary State regulations and rules prohibited.

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 county 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 county 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.
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.
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(a).

Editor’s Note.

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.

§ 153A-145.7. Hours of certain alcohol sales.

In accordance with G.S. 18B-1004(c), a county 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(b).

Editor’s Note.

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.”

§ 153A-145.8. Limitations on regulation of catering by bona fide farms.

Notwithstanding any other provision of law, no county 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 county. 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(c); 2020-74, s. 21(a).

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(a), effective July 1, 2020, substituted “G.S. 160D-903(a)” for “G.S. 153A-340(b)” in the first sentence.

§ 153A-145.9. Authorization of social district.

A county may adopt an ordinance designating a social district for use in accordance with G.S. 18B-904.1 .

History. 2021-150, s. 20.1.

Editor’s Note.

Session Laws 2021-150, s. 33.3, made this section, as added by Session Laws 2021-150, s. 20.1, effective September 10, 2021.

§ 153A-145.10. Authorization of expanded area for ABC licensed premises.

In accordance with G.S. 18B-904(h), a county may adopt an ordinance authorizing permittees holding a permit under Article 10 or 11 of Chapter 18B of the General Statutes to utilize an area that is not part of the permittee’s licensed premises for the outdoor possession and consumption of alcoholic beverages sold by the permittee.

History. 2021-150, s. 21.1.

Editor’s Note.

Session Laws 2021-150, s. 33.3, made this section, as added by Session Laws 2021-150, s. 21.1, effective September 10, 2021.

Article 7. Taxation.

§ 153A-146. General power to impose taxes.

Authority. — A county may 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 includes the power to impose reasonable penalties for failure to declare tax liability, if required, and 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 county may not employ an agent who is compensated in whole or in part by the county 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 also includes the power to provide for its administration in a manner not inconsistent with the statute authorizing the tax.
Prohibition. — A county may not impose a license, franchise, or privilege tax on a person engaged in any of the businesses listed in this subsection:
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. 1868, c. 20, s. 8; Code, s. 707; Rev., s. 1318; C.S., s. 1297; 1973, c. 822, s. 1; 2012-152, s. 4; 2012-194, s. 61.5(b); 2015-6, s. 2.18(b); 2015-109, s. 1.

Cross References.

As to State and local finance, see N.C. Const., Art. V.

Editor’s Note.

Session Laws 2012-152, s. 4, added the next-to-last sentence of subsection (a). 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.”

Effect of Amendments.

Session Laws 2015-6, s. 2.18(b), effective April 9, 2015, designated the existing language as subsection (a); added the subsection (a) heading, and added subsection (b).

CASE NOTES

Editor’s Note. —

Some of the cases cited below were decided under corresponding sections of former law.

Powers of Counties Derived from Legislature. —

A sovereign state possesses the inherent power of taxation, but counties must derive that power, as well as all others, from the legislature. Stam v. State, 302 N.C. 357 , 275 S.E.2d 439, 1981 N.C. LEXIS 1055 (1981).

Acts Beyond Power Granted Void. —

Counties must derive the power of taxation from the legislature, and any attempt to exercise the taxing power which is found not to be within the powers granted to the county is ultra vires and void. Stam v. State, 302 N.C. 357 , 275 S.E.2d 439, 1981 N.C. LEXIS 1055 (1981).

Authority of County to Raise Revenues. —

While the General Assembly may regulate the amount of and methods for raising county revenues, the system of county government contemplates that such function shall be performed by the county authorities, subject to the limitations prescribed by the Constitution. Parker v. Board of Comm'rs, 104 N.C. 166 , 10 S.E. 137, 1889 N.C. LEXIS 174 (1889).

Strict Construction of Grant of Power to Levy Taxes. —

A grant to a county of the power to levy taxes must be strictly construed. It is an established rule that the authority of municipalities to levy a tax must be made clearly to appear, and that doubts, if any, as to the power sought to be exercised must be resolved against the municipality. Stam v. State, 302 N.C. 357 , 275 S.E.2d 439, 1981 N.C. LEXIS 1055 (1981).

Online travel companies had no liability under the respective ordinances of Wake, Dare, Buncombe, and Mecklenburg Counties in North Carolina for failure to collect and remit an occupancy tax on the sale price the companies imposed on consumers because the companies were neither operators, nor retailers within the meaning of G.S 105-164.4(a)(3). Therefore, the counties were not authorized to impose the taxes on the companies’ gross receipts under G.S. 153A-146 . Wake County v. Hotels.com, L.P., 235 N.C. App. 633, 762 S.E.2d 477, 2014 N.C. App. LEXIS 897 (2014).

Constitutional requirement that every act levying taxes shall state the objects to which they shall be applied has no application to taxes levied by county for county purposes. Parker v. Board of Comm'rs, 104 N.C. 166 , 10 S.E. 137, 1889 N.C. LEXIS 174 (1889).

Mandamus to Compel Levy of Tax and Payment of Debt. —

A plaintiff, upon a proper prayer for judgment, may have a mandamus to compel the board of commissioners to levy a tax and pay the debt of a county. Winslow v. Commissioners of Perquimans County, 64 N.C. 218 , 1870 N.C. LEXIS 66 (1870).

Injunction Against Levy of Unconstitutional Tax. —

A taxpayer may enjoin county commissioners from making a tax levy to pay interest on railroad bonds issued under an unconstitutional statute, without restoring to the bona fide holders of the bonds the consideration paid therefor. Graves v. Commissioners, 135 N.C. 49 , 47 N.E. 134, 47 S.E. 134, 1904 N.C. LEXIS 8 (1904).

Where it was alleged that board of commissioners had not levied a sufficient tax to defray the ordinary expenses of the county, on account of the levy of a tax to pay for repairing the courthouse, it was held to be no ground for interference by the courts. Long v. Commissioners of Richmond County, 76 N.C. 273 , 1877 N.C. LEXIS 229 (1877).

OPINIONS OF ATTORNEY GENERAL

Because the statutes authorizing property taxes provide for interest and/or penalties, a county may not, by ordinance, impose a late payment penalty or administrative fee upon delinquent property tax accounts. See opinion of Attorney General to Lloyd C. Smith, Jr., Pritchett & Burch, PLLC, 2001 N.C. AG LEXIS 6 (3/6/2001).

§ 153A-147. Remedies for collecting taxes other than property taxes.

In addition to any other remedies provided by law, a county may collect any county tax by use of the remedies of levy and sale and attachment and garnishment, under the rules and according to the procedures prescribed by the Machinery Act (Chapter 105, Subchapter II) for the enforcement of tax liability against personal property. However, these remedies become available only on the due date of the tax and not before that time.

History. 1973, c. 822, s. 1.

§ 153A-148. Continuing taxes.

Except for taxes levied on property under the Machinery Act (Chapter 105, Subchapter II), a county may impose any authorized tax by a permanent ordinance that shall stand from year to year until amended or repealed, and it is not necessary to reimpose the tax in each annual budget ordinance.

History. 1973, c. 822, s. 1.

Legal Periodicals.

See legislative survey, 21 Campbell L. Rev. 323 (1999).

§ 153A-148.1. Disclosure of certain information prohibited.

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 county who in the course of service to or employment by the county 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 county, as necessary to administer a tax.
4. To exchange information with a regional public transportation authority or a regional transportation authority created pursuant to Article 26 or Article 27 of Chapter 160A of the General Statutes, when the information is needed to fulfill a duty imposed on the authority or on the county.
5. To exchange information with the Department of Revenue, when the information is needed to fulfill a duty imposed on the Department or on the county.
6. 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. 105-277.1 B, the property tax homestead circuit breaker.
7. To disclose to the authorized finance officer of any municipality located within the county tax information in the possession of the county, as necessary to administer a tax.
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. 33; 1994, Ex. Sess., c. 14, s. 66; 1998-139, s. 2; 2008-35, s. 1.4; 2016-92, s. 3.1(a).

Effect of Amendments.

Session Laws 2008-35, s. 1.4, effective for taxes imposed for taxable years beginning on or after July 1, 2008, added subdivision (a)(6).

Session Laws 2016-92, s. 3.1(a), effective July 11, 2016, added subdivision (a)(7).

§ 153A-149. Property taxes; authorized purposes; rate limitation.

Pursuant to Article V, Sec. 2(5) of the Constitution of North Carolina, the General Assembly confers upon each county in this State the power to levy, within the limitations set out in this section, taxes on property having a situs within the county under the rules and according to the procedures prescribed in the Machinery Act (Chapter 105, Subchapter II).
Each county may levy property taxes without restriction as to rate or amount for the following purposes:
1. Courts. — To provide adequate facilities for and the county’s share of the cost of operating the General Court of Justice in the county.
2. Debt Service. — To pay the principal of and interest on all general obligation bonds and notes of the county.
3. Deficits. — To supply an unforeseen deficiency in the revenue (other than revenues of public enterprises), when revenues actually collected or received fall below revenue estimates made in good faith and in accordance with the Local Government Budget and Fiscal Control Act.
4. Elections. — To provide for all federal, State, district and county elections.
5. Jails. — To provide for the operation of a jail and other local confinement facilities.
6. Joint Undertakings. — To cooperate with any other county, city, or political subdivision in providing any of the functions, services, or activities listed in this subsection.
7. Schools. — To provide for the county’s share of the cost of kindergarten, elementary, secondary, and post-secondary public education.
8. Social Services. — To provide for public assistance required by Chapters 108A and 111 of the General Statutes.
Each county may levy property taxes for one or more of the purposes listed in this subsection 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. Authorized purposes subject to the rate limitation are:
1. To provide for the general administration of the county through the board of county commissioners, the office of the county manager, the office of the county budget officer, the office of the county finance officer, the office of the county assessor, the office of the county tax collector, the county purchasing agent, and the county attorney, and for all other general administrative costs not allocated to a particular board, commission, office, agency, or activity of the county.
2. Agricultural Extension. — To provide for the county’s share of the cost of maintaining and administering programs and services offered to agriculture by or through the Agricultural Extension Service or other agencies.
3. Air Pollution. — To maintain and administer air pollution control programs.
4. Airports. — To establish and maintain airports and related aeronautical facilities.
5. Ambulance Service. — To provide ambulance services, rescue squads, and other emergency medical services.
6. Animal Protection and Control. — To provide animal protection and control programs. (6a) Arts Programs and Museums. — To provide for arts programs and museums as authorized in G.S. 160A-488 .
  (6b) Auditoriums, coliseums, and convention and civic centers. — To provide public auditoriums, coliseums, and convention and civic centers.
7. Beach Erosion and Natural Disasters. — To provide for shoreline protection, beach erosion control, and flood and hurricane protection.
8. Cemeteries. — To provide for cemeteries.
9. Civil Preparedness. — To provide for civil preparedness programs.
10. Debts and Judgments. — To pay and discharge any valid debt of the county or any judgment lodged against it, other than debts and judgments evidenced by or based on bonds and notes.
  (10a) 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.
  
  (10b) Economic Development. — To provide for economic development as authorized by G.S. 158-7.1 .
  
  (10c) Energy Financing. — To provide financing for renewable energy and energy efficiency in accordance with a program established under G.S. 153A-455 .
11. Fire Protection. — To provide fire protection services and fire prevention programs.
12. Forest Protection. — To provide forest management and protection programs.
13. Health. — To provide for the county’s share of maintaining and administering services offered by or through the local health department.
14. Historic Preservation. — To undertake historic preservation programs and projects.
15. Hospitals. — To establish, support and maintain public hospitals and clinics, and other related health programs and facilities, or to aid any private, nonprofit hospital, clinic, related facility, or other health program or facility.
  (15a) Housing Rehabilitation. — To provide for housing rehabilitation programs authorized by G.S. 153A-376, including personnel costs related to the planning and administration of these programs. This subdivision applies only to counties with a population of 400,000 or more, according to the most recent decennial federal census.
  
  (15b) Housing. — To undertake housing programs for low- and moderate-income persons as provided in G.S. 153A-378.
16. Human Relations. — To undertake human relations programs.
  (16a) Industrial Development. — To provide for industrial development as authorized by G.S. 158-7.1 .
17. Joint Undertakings. — To cooperate with any other county, city, or political subdivision in providing any of the functions, services, or activities listed in this subsection.
18. Law Enforcement. — To provide for the operation of the office of the sheriff of the county and for any other county law-enforcement agency not under the sheriff’s jurisdiction.
19. Libraries. — To establish and maintain public libraries.
20. Mapping. — To provide for mapping the lands of the county.
21. Medical Examiner. — To provide for the county medical examiner or coroner.
22. Mental Health. — To provide for the county’s share of the cost of maintaining and administering services offered by or through the area mental health, developmental disabilities, and substance abuse authority.
23. Open Space. — To acquire open space land and easements in accordance with Article 19, Part 4, Chapter 160A of the General Statutes.
24. Parking. — To provide off-street lots and garages for the parking and storage of motor vehicles.
25. Parks and Recreation. — To establish, support and maintain public parks and programs of supervised recreation.
26. Planning. — To provide for a program of planning and regulation of development in accordance with Article 18 of this Chapter and Article 19, Parts 3A and 6, of Chapter 160A of the General Statutes.
  (26a) Ports and Harbors. — To participate in programs with the North Carolina Ports Authority and provide for harbor masters.
27. 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. This subdivision does not authorize a county to provide public roads in the county in violation of G.S. 136-51.
  (27a) Railway Corridor Preservation. — To acquire property for railroad corridor preservation as authorized by G.S. 160A-498 .
28. Register of Deeds. — To provide for the operation of the office of the register of deeds of the county.
  (28a) Roads. — To provide for the maintenance of county roads as authorized by G.S. 153A-301(d).
29. Sewage. — To provide sewage collection and treatment services as defined in G.S. 153A-274(2) .
30. Social Services. — To provide for the public welfare through the maintenance and administration of public assistance programs not required by Chapters 108A and 111 of the General Statutes, and by establishing and maintaining a county home.
31. Solid Waste. — To provide solid waste collection and disposal services, and to acquire and operate landfills.
  (31a) Stormwater. — To provide structural and natural stormwater and drainage systems of all types.
32. Surveyor. — To provide for a county surveyor.
33. Veterans’ Service Officer. — To provide for the county’s share of the cost of services offered by or through the county veterans’ service officer.
34. Water. — To provide water supply and distribution systems.
35. Watershed Improvement. — To undertake watershed improvement projects.
36. Water Resources. — To participate in federal water resources development projects.
37. Armories. — To supplement available State or federal funds to be used for the construction (including the acquisition of land), enlargement or repair of armory facilities for the North Carolina National Guard.
With an approving vote of the people, any county may levy property taxes for any purpose for which the county is authorized by 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 (c).The county commissioners may call a referendum on approval of a property tax levy. The referendum may be held at the same time as any other referendum or election, but may not be otherwise held within the period of time beginning 30 days before and ending 10 days after any other referendum or election to be held in the county and already validly called or scheduled by law at the time the tax referendum is called. The referendum shall be conducted by the county board of elections. The clerk to the board of commissioners shall publish a notice of the referendum at least twice. The first publication shall be not less than 14 days and the second publication not less than seven days before the last day on which voters may register for the referendum. 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:
1. Shall County 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 County 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 County 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 board of commissioners 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 board of commissioners. The board of commissioners 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 board. 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 supplemental school taxes and 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. Counties in which such referendums have been held may support programs formerly supported by voted property taxes within the general rate limitation set out in subsection (c) at any appropriate level and are not subject to the former voted rate limitation. (e) With an approving vote of the people, any county 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 referendum or election, but may not be otherwise held within the period of time beginning 30 days before and ending 30 days after any other referendum or election. The referendum shall be conducted by the county board of elections. The proposition submitted to the voters shall be substantially in the following form: “Shall the property tax rate limitation applicable to County 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 county. (f) With respect to any of the categories listed in subsections (b) and (c) of this section, the county may provide the necessary personnel, land, buildings, equipment, supplies, and financial support from property tax revenues for the program, function, or service. (g) This section does not authorize any county 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 local acts.
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History. 1973, c. 803, s. 1; c. 822, s. 2; c. 963; c. 1446, s. 25; 1975, c. 734, s. 17; 1977, c. 148, s. 5; c. 834, s. 3; 1979, c. 619, s. 4; 1981, c. 66, s. 2; c. 562, s. 11; c. 692, s. 1; 1983, c. 511, ss. 1, 2; 1985, c. 589, s. 57; 1987, c. 45, s. 2; c. 697, s. 2; 1989, c. 600, s. 5; c. 625, s. 25; c. 643, s. 1; 1989 (Reg. Sess., 1990), c. 1005, ss. 3-5; 1991 (Reg. Sess., 1992), c. 764, s. 1; c. 896, s. 1; 1993, c. 378, s. 2; 1997-502, s. 6; 1999-366, s. 3; 2002-159, s. 50(a); 2002-172, s. 2.4(a); 2003-416, s. 2; 2009-281, s. 1; 2010-167, s. 4(b).

Local Modification.

Gaston: 1987 (Reg. Sess., 1988), c. 897, s. 6(c); Guilford: 2007-255, s. 2; Mecklenburg: 1987 (Reg. Sess., 1988), c. 897, s. 6(c); 2007-255, s. 2; Wake: 2007-255, s. 2; city of Greensboro: 2007-255, s. 2; city of Raleigh: 2007-255, s. 2.

Editor’s Note.

The above section was enacted as G.S. 153-65 by Session Laws 1973, c. 803, s. 1. As directed by Session Laws 1973, c. 822, s. 2, it has been substituted for G.S. 153A-149 , as enacted by Session Laws 1973, c. 822, s. 1.

Subdivision (c)(27a) was originally codified as subdivision (c)(38); it was recodified to facilitate alphabetization.

Part 3A of Article 19 of Chapter 160A, referred to in subdivision (c)(26) of this section, was repealed by Session Laws 1989, c. 706. See now Part 3C.

The introductory language of Session Laws 1997-502, s. 6, read: “ G.S. 153A-149(13) reads as rewritten”; however, the amendment has been made to subdivision (c)(13), as the apparently intended subdivision.

Session Laws 1999-366, s. 1, provides: “The General Assembly finds and declares that the purpose of this act is to provide authority for counties in North Carolina to provide funds for residential housing construction, new or rehabilitated, and to provide for the sale or rental of housing to persons and families of low and moderate income. The General Assembly finds and declares that there exists in counties in the State a serious shortage of decent, safe, and sanitary residential housing available at low prices or rentals to persons and families of low and moderate income. This shortage is inimical to the health, safety, welfare, and prosperity of all residents of the State and to the sound growth of North Carolina communities.”

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), effective June 30, 2014, at the direction of the Revisor of Statutes.

Effect of Amendments.

Session Laws 2009-281, s. 1, effective July 10, 2009, substituted “National Guard” for “national guard” in subdivision (c)(37).

Session Laws 2010-167, s. 4(b), effective August 2, 2010, added subdivision (c)(10c).

Legal Periodicals.

For survey of 1980 constitutional law, see 59 N.C.L. Rev. 1116 (1981).

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

For a survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2281 (1997).

CASE NOTES

Editor’s Note. —

Most of the cases cited below were decided under corresponding sections of former law.

Where a statute authorizing the levy of a tax beyond the constitutional limit for a special purpose is intra vires, the taxes collected beyond the requirements of the special purpose may be turned into the general fund and used for general purposes; but where the act authorizes the levy partly for a “special purpose” and partly for general purposes it is ultra vires, and no part of the levy can be collected. Williams v. Commissioners of Craven County, 119 N.C. 520 , 26 S.E. 150, 1896 N.C. LEXIS 327 (1896).

Levy to Fund Medically Unnecessary Abortions Is Ultra Vires and Void. —

Section 153A-255 does not give counties the underlying authority to levy taxes pursuant to subdivision (c)(30) of this section to fund medically unnecessary abortions, since the authority conferred upon counties to provide social services pursuant to G.S. 153A-255 is limited to providing the poor with the basic necessities of life, and a medically unnecessary abortion is not a basic necessity of life; therefore, a county exceeds its statutorily conferred power in levying a tax to fund medically unnecessary abortions, and the tax levy is ultra vires and void. Stam v. State, 302 N.C. 357 , 275 S.E.2d 439, 1981 N.C. LEXIS 1055 (1981).

Appropriation for Dyslexia School Unauthorized. —

An appropriation by the Gaston County Board of Commissioners to the Dyslexia School of North Carolina was not authorized by either subdivision (c)(30) of this section or G.S. 153A-255 . Hughey v. Cloninger, 297 N.C. 86 , 253 S.E.2d 898, 1979 N.C. LEXIS 1141 (1979).

General taxes for county purposes are leviable only once a year. Bradshaw v. Board of Comm'rs, 92 N.C. 278 , 1885 N.C. LEXIS 200 (1885).

Tax Rate Variable. —

There is no constitutional requirement that the tax rate for county purposes shall be the same everywhere. It varies in the different counties, and may vary in different townships, parts of townships, districts, towns, and cities in the same county. Jones v. Commissioners of Stokes County, 143 N.C. 59 , 55 S.E. 427 (1906).

Assessment of Property Subject to Taxation. —

All of the property, including solvent credits, in the State, shall be assessed and taxed at its value in money. Caldwell Land & Lumber Co. v. Smith, 146 N.C. 199 , 59 S.E. 653, 1907 N.C. LEXIS 24 (1907).

The legislature has the power to provide for the listing, assessment, and taxing of personal property omitted to be listed by the owner as the law requires. And there is no reason why it may not be taxed for five or more preceding years if it has escaped taxation so long. Kyle v. Mayor & Comm'rs, 75 N.C. 445 , 1876 N.C. LEXIS 316 (1876); North Carolina R.R. v. Commissioners of Alamance, 82 N.C. 260 (1880); City of Wilmington v. Cronly, 122 N.C. 388 , 30 S.E. 9, 1898 N.C. LEXIS 268 (1898); Caldwell Land & Lumber Co. v. Smith, 146 N.C. 199 , 59 S.E. 653, 1907 N.C. LEXIS 24 (1907).

An assessment for the building of a stock law fence is not a tax which requires a referendum vote by the people. Tripp v. Commissioners of Pitt County, 158 N.C. 180 , 73 S.E. 896, 1912 N.C. LEXIS 16 (1912).

Land of Schools and Railroads Held Exempt from Special Tax. —

An act which provided for the construction of a fence to enclose the whole of several districts and that the commissioners should levy a special tax on all the real estate in the district which was taxable by the State and county did not embrace the real estate of schools and railroads, which was not taxable for general purposes. Bradshaw v. Board of Comm'rs, 92 N.C. 278 , 1885 N.C. LEXIS 200 (1885).

Application of Tax Raised for One Purpose to Another Purpose. —

There is no statute nor any rule of law or of public policy which prevents county commissioners from applying a tax raised professedly for one purpose to any other legitimate purpose. There may, perhaps, be an exception where a tax is levied by a special authority from the legislature, or upon the vote of the people, which would not otherwise be lawful. Long v. Commissioners of Richmond County, 76 N.C. 273 , 1877 N.C. LEXIS 229 (1877).

Funds Impressed with a Trust. —

Where taxes are levied and collected to pay coupons on bonds issued by a county, the funds so collected are impressed with a trust for the benefit of the owners of the coupons. Board of Comm'rs v. Tollman, 145 F. 753, 1906 U.S. App. LEXIS 4022 (4th Cir. 1906).

Tax Necessary to Maintain Schools for Required Term. —

When it becomes necessary, the county commissioners are required to levy a tax sufficient to maintain the county schools for the required term each year. Former constitutional limitation did not apply to defeat such a levy. Collie v. Commissioners of Franklin County, 145 N.C. 170 , 59 S.E. 44, 1907 N.C. LEXIS 274 (1907) (expressly overruling) Barksdale v. Commissioners of Sampson County, 93 N.C. 472 , 1885 N.C. LEXIS 95 (1885) and Board of Education v. Board of Comm'rs Bladen County, 111 N.C. 578 , 16 S.E. 621, 1892 N.C. LEXIS 224 (1892); Southern Ry. v. Cherokee County, 177 N.C. 86 , 97 S.E. 758, 1919 N.C. LEXIS 77 (1919).

Tax to Erect and Maintain Courthouse. —

Power of limited taxation for the purpose of erecting and maintaining a county courthouse and its exercise is no invasion of the Bill of Rights. Lockhart v. Harrington, 8 N.C. 408 , 1821 N.C. LEXIS 32 (1821).

Taxpayers cannot enjoin the levy of taxes necessary to pay the principal and interest on bonds issued for repairs to the courthouse. Harrell v. Board of Comm'rs, 206 N.C. 225 , 173 S.E. 614, 1934 N.C. LEXIS 148 (1934).

Tax Levied According to Procedures in Machinery Act. —

The legislature authorized defendant and other counties to levy property taxes, including taxes on plaintiff’s system property, according to the procedures in the Machinery Act (Chapter 105, Subchapter II). North Carolina E. Mun. Power v. Wake County, 100 N.C. App. 693, 398 S.E.2d 486, 1990 N.C. App. LEXIS 1163 (1990).

Resolution Correcting Record as to Purpose of Levy. —

Resolutions of the board of county commissioners correcting records as to the purpose of tax levies will, in the absence of evidence to the contrary, be presumed bona fide. Atlantic Coast Line R.R. v. Duplin County, 226 N.C. 719 , 40 S.E.2d 371, 1946 N.C. LEXIS 333 (1946).

Counties and County Commissioners Do Not Have Sovereign Immunity. —

OPINIONS OF ATTORNEY GENERAL

The legislature may by statute, consistently with the Constitution, provide that a local school administrative unit may levy taxes at the local level but such taxing authority must be conferred either by a general law, applicable statewide, or by local act subject to a vote of those persons affected. See opinion of Attorney General to Mr. John B. Dunn, Superintendent, Edenton-Chowan Schools, 60 N.C. Op. Att'y Gen. 17 (1990).

§ 153A-150. Reserve for reappraisal.

Before the beginning of the fiscal year immediately following the effective date of a reappraisal of real property conducted as required by G.S. 105-286 , the county budget officer shall present to the board of commissioners a budget for financing the cost of the next reappraisal. The budget shall estimate the cost of the reappraisal and shall propose a plan for raising the necessary funds in annual installments during the intervening years between reappraisals, with all installments as nearly uniform as practicable. The board shall consider this budget, making any amendments to the budget it deems advisable, and shall adopt a resolution establishing a special reserve fund for the next reappraisal. In the budget ordinance of the first fiscal year of the plan, the board of commissioners shall appropriate to the special reappraisal reserve fund the amount set out in the plan for the first year’s installment. When the county budget for each succeeding fiscal year is in preparation, the board shall review the reappraisal budget with the budget officer and shall amend it, if necessary, so that it will reflect the probable cost at that time of the reappraisal and will produce the necessary funds at the end of the intervening period. In the budget ordinance for each succeeding fiscal year, the board shall appropriate to the special reappraisal reserve fund the amount set out in the plan as due in that year.

Moneys appropriated to the special reappraisal reserve fund shall not be available or expended for any purpose other than the reappraisal of real property required by G.S. 105-286 , except that the funds may be deposited at interest or invested as permitted by G.S. 159-30 . If there is a fund balance in the reserve fund following payment for the required reappraisal, it shall be retained in the fund for use in financing the next required reappraisal.

Within 10 days after the adoption of each annual budget ordinance, the county finance officer shall report to the Department of Revenue, on forms to be supplied by the Department, the terms of the county’s reappraisal budget, the current condition of the special reappraisal reserve fund, and the amount appropriated to the reserve fund in the current fiscal year.

History. 1959, c. 704, s. 6; 1971, c. 806, s. 4; c. 931, s. 2; 1973, c. 476, s. 193; c. 822, s. 1; 2008-146, s. 1.3.

Editor’s Note.

Session Laws 2008-146, s. 6, provides: “The Revenue Laws Study Committee must study the following:

“(1) The effect of PART I of this act and determine whether new positions are needed to perform sales assessment ratio studies in additional counties each year and to perform other functions related to this act.

“(2) The definition of income as it applies to the homestead exclusion.”

Effect of Amendments.

Session Laws 2008-146, s. 1.3, effective July 1, 2009, deleted “octennial” preceding “reappraisal” in the section heading; deleted “octennial” and “eight-year” throughout; in the first paragraph, substituted “intervening years between reappraisals” for “next fiscal years” in the second sentence, and inserted “intervening” preceding “period” at the end of the next-to-last sentence; and made stylistic changes.

§ 153A-151. Sales tax.

A county may levy a local sales and use tax under the rules and according to the procedures prescribed by the Local Government Sales and Use Tax Act (Chapter 105, Subchapter VIII).

History. 1973, c. 822, s. 1.

§ 153A-152. [Repealed]

Repealed by Session Laws 2014-3, s. 12.3(b), effective July 1, 2015.

History. 1973, c. 822, s. 1; 1996, 2nd Ex. Sess., c. 14, s. 22; 2001-430, s. 16; repealed by Session Laws 2014-3, s. 12.3(b), effective July 1, 2015.

Editor’s Note.

Former G.S. 153A-152 pertained to privilege license taxes.

§ 153A-152.1. [Repealed]

Repealed by Session Laws 2014-3, s. 12.3(b), effective July 1, 2015.

History. 1981, c. 704, s. 16; 1985, c. 462, s. 11; 1987, c. 850, s. 21; 1989, c. 168, s. 34; repealed by Session Laws 2014-3, s. 12.3(b), effective July 1, 2015.

Editor’s Note.

Former G.S. 153A-152.1 pertained to privilege license tax on low-level radioactive and hazardous waste facilities.

§ 153A-153. Animal tax.

A county may levy an annual license tax on the privilege of keeping dogs and other pets within the county.

History. 1973, c. 822, s. 1.

§ 153A-154. [Repealed]

Repealed by Session Laws 2006-151, s. 11, effective January 1, 2007.

§ 153A-154.1. Uniform provisions for local meals taxes.

Scope. — This section applies to every county 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.
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 county on and after the effective date of the levy of the local meals tax.
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 county has the same authority to waive the penalties for a local meals tax that the Secretary of Revenue has to waive the penalties for State sales and use taxes.
Definitions. — The following definitions apply in this section:
1. Meals tax. — A tax on prepared food and beverages.
2. 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. 1; 2020-58, s. 3.5(a).

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(a), effective July 1, 2020, and applicable to sales occurring on or after that date.

Effect of Amendments.

Session Laws 2020-58, s. 3.5(a), rewrote the section. For effective date and applicability, see editor’s note.

§ 153A-155. Uniform provisions for room occupancy taxes.

Scope. — This section applies only to counties the General Assembly has authorized to levy room occupancy taxes.
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.
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 county 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.If a taxable accommodation is furnished as part of a package, the bundled transaction provisions in G.S. 105-164.4 D 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 county.The taxing county shall design and furnish to all appropriate businesses and persons in the county the necessary forms for filing returns and instructions to ensure the full collection of the tax. A retailer who collects a room occupancy tax may deduct from the amount remitted to the taxing county a discount equal to the discount the State allows the retailer for State sales and use tax.
Administration. — The taxing county shall administer a room occupancy tax it levies. A room occupancy tax is due and payable to the county 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 county. 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 county 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 .
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 county 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.
Repeal or Reduction. — A room occupancy tax levied by a county may be repealed or reduced by a resolution adopted by the governing body of the county. 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.
(f1) Use. — The proceeds of a room occupancy tax shall not be used for development or construction of a hotel or another transient lodging facility.
Applicability. — Subsection (c) of this section applies to all counties and county districts 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 Alleghany, Anson, Brunswick, Buncombe, Burke, Cabarrus, Camden, Carteret, Caswell, Chatham, Cherokee, Chowan, Clay, Craven, Cumberland, Currituck, Dare, Davie, Duplin, Durham, Edgecombe, Forsyth, Franklin, Graham, Granville, Halifax, Haywood, Henderson, Jackson, Madison, Martin, McDowell, Montgomery, Moore, Nash, New Hanover, Northampton, Pasquotank, Pender, Perquimans, Person, Randolph, Richmond, Rockingham, Rowan, Rutherford, Sampson, Scotland, Stanly, Swain, Transylvania, Tyrrell, Vance, Washington, Wayne, and Wilson Counties, to Harnett County District H, New Hanover County District U, Surry County District S, Watauga County District U, Wilkes County District K, Yadkin County District Y, and the Township of Averasboro in Harnett County and the Ocracoke Township Taxing District.

History. 1997-102, s. 3; 1997-255, s. 2; 1997-342, s. 2; 1997-364, s. 3; 1997-410, s. 6; 1998-14, s. 2; 1999-155, s. 2; 1999-205, s. 2; 1999-286, s. 2; 2000-103, s. 5; 2001-162, s. 2; 2001-305, s. 2; 2001-321, s. 3; 2001-381, s. 10; 2001-434, s. 1; 2001-439, s. 18.2; 2001-468, s. 3; 2001-480, s. 14; 2001-484, s. 2; 2002-138, s. 5; 2004-106, s. 2; 2004-120, s. 3; 2004-170, ss. 36(a), 42(a); 2004-199, s. 60(a); 2005-16, s. 2; 2005-46, s. 1.2; 2005-53, s. 2; 2005-197, s. 6; 2005-233, s. 6.1; 2006-120, s. 8.1; 2006-127, s. 2; 2006-128, s. 6; 2006-129, s. 2; 2006-162, s. 20(a); 2006-167, s. 7(e); 2006-264, s. 81(a); 2007-19, s. 3; 2007-63, s. 3; 2007-223, s. 3; 2007-224, s. 5; 2007-265, s. 2; 2007-315, s. 2; 2007-318, s. 2; 2007-337, s. 3; 2007-340, s. 9; 2007-527, ss. 23, 43; 2008-33, s. 2; 2008-134, s. 12(b); 2008-187, s. 31; 2009-112, s. 4; 2009-157, s. 2; 2009-297, s. 3; 2010-31, ss. 31.6(c), (d); 2010-78, s. 10; 2010-123, s. 10.2; 2011-113, s. 4; 2011-115, s. 4; 2011-170, s. 5; 2012-100, s. 1; 2012-144, s. 4; 2012-194, s. 35; 2013-255, s. 3; 2015-128, s. 7; 2015-255, s. 6.1; 2017-202, s. 9.1(b); 2018-5, s. 38.10(e); 2019-246, s. 4(g).

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, and 2001-484 authorize the affected localities (the counties of Anson, Avery, Buncombe, Cabarrus, Carteret, Cumberland, Dare, Durham, Montgomery, Pender, Richmond, Rowan, Stanly, Washington and Vance, the Cities of Durham, Gastonia, Kings Mountain, Lincolnton, Monroe, and North Topsail Beach, the towns of Beech Mountain, Carrboro, Selma, Smithfield, Wilkesboro and Averasboro Township in Harnett County) to levy additional occupancy taxes for tourism promotion and development.

Session Laws 2002-95 authorizes New Hanover County to levy additional occupancy taxes for tourism promotion and development.

Editor’s Note.

Session Laws 1997-102, s. 3 enacted this section and made it effective to Madison County only. Session Laws 1997-255, s. 2 made this section applicable to Nash County. Session Laws 1997-342, s. 2 made this section applicable to Randolph County. Session Laws 1997-364, s. 3 made this section applicable to Brunswick and Person Counties. Session Laws 1997-410, s. 6 made this section applicable to Avery and Scotland Counties. Session Laws 1998-14, s. 2 made this section applicable to Davie County. Session Laws 1999-155, s. 2 made this section applicable to Currituck County. Session Laws 1999-205, s. 2 made this section applicable to Transylvania County. Session Laws 1999-286, s. 2 made this section applicable to Craven County. This section has been codified at the direction of the Revisor of Statutes.

Session Laws 2001-480, s. 6(d), effective December 5, 2001, except that any taxes levied under this section become effective March 1, 2002, provides that G.S. 153A-155(a) and G.S. 153A-155(b) apply to Durham County.

Session Laws 2001-480, s. 6(e), provides that Part III of the act [which inserted “Durham” in subsection (g)] is effective only if Durham County has, prior to February 1, 2002, levied all of the taxes authorized by 6(a), 6(b), and 6(c) of the act.

Session Laws 2011-330, s. 23, provides: “A facilitator is not liable for an overcollection or undercollection of sales tax or local occupancy tax if the facilitator has made a good faith effort to comply with the law and collect the proper amount of tax as the result of the change under Section 31.6 of S.L. 2010-31 regarding a facilitator’s collection and remittance obligations imposed under G.S. 105-164.4(a)(3), 153A-155(c), and 160A-215(c). This applies only to the period beginning January 1, 2011, and ending April 1, 2011.”

Session Laws 2019-246, s. 4(q), made the amendment to subsection (c) of this section by Session Laws 2019-246, s. 4(g), effective February 1, 2020, and applicable to sales occurring on or after that date.

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(o), is a severability clause.

Effect of Amendments.

Session Laws 2004-106, s. 2, effective July 16, 2004, inserted “Alleghany” in the list of counties in subsection (g).

Session Laws 2004-120, s. 3, effective July 17, 2004, inserted “Camden” in the list of counties in subsection (g).

Session Laws 2004-170, s. 36(a), effective October 1, 2004, substituted “20th” for “15th” in subsection (d).

Session Laws 2005-16, s. 2, as amended by Session Laws 2006-264, s. 81(a), effective July 1, 2005, inserted “Pasquotank” in subsection (g).

Session Laws 2005-46, s. 1.2, effective May 17, 2005, inserted “Halifax” in subsection (g).

Session Laws 2005-53, s. 2, effective May 18, 2005, inserted “Duplin” in subsection (g).

Session Laws 2005-197, s. 6, effective July 18, 2005, inserted “to Watauga County District U” in subsection (g).

Session Laws 2005-233, s. 6.1, effective July 28, 2005, inserted “Franklin” and “Rockingham” in subsection (g).

Session Laws 2006-120, s. 8.1, effective July 17, 2006, inserted “Clay,” near the beginning of subsection (g).

Session Laws 2006-127, s. 2, effective July 19, 2006, inserted “Martin,” in the middle of subsection (g).

Session Laws 2006-128, s. 6, as amended by Session Laws 2007-527, s. 23, effective July 19, 2006, added the Ocracoke Township Taxing District to the list of localities to which this section applies.

Session Laws 2006-129, s. 2, effective July 19, 2006, inserted “Chowan,” in the middle of subsection (g).

Session Laws 2006-162, s. 20(a), effective July 24, 2006, substituted “20th day” for “15th day” near the middle of the second sentence in subsection (d).

Session Laws 2006-167, s. 7(e), effective September 1, 2006, and applicable to room occupancy and tourism development taxes levied on and after that date, inserted “New Hanover County District U,” in the middle of subsection (g).

Session Laws 2007-19, s. 3, effective April 23, 2007, inserted “Perquimans,” in subsection (g).

Session Laws 2007-63, s. 3, effective June 7, 2007, inserted “Sampson,” in subsection (g).

Session Laws 2007-223, s. 3, effective July 16, 2007, inserted “Northampton,” in subsection (g).

Session Laws 2007-224, s. 5, effective July 17, 2007, inserted “Caswell,” in subsection (g).

Session Laws 2007-265, s. 2, effective July 26, 2007, inserted “Burke,” near the beginning of subsection (g).

Session Laws 2007-315, s. 2, effective July 30, 2007, inserted “McDowell,” in the middle of subsection (g).

Session Laws 2007-337, s. 3, effective August 2, 2007, inserted “Haywood,” in subsection (g).

Session Laws 2007-340, s. 9, effective August 2, 2007, inserted “to Yadkin County District Y,” near the end of subsection (g).

Session Laws 2007-527, s. 43, effective August 31, 2007, inserted “Swain,” in subsection (g).

Session Laws 2007-318, s. 2, as amended by Session Laws 2008-187, s. 31, effective August 7, 2008, inserted “Chatham” in subsection (g).

Session Laws 2008-33, s. 2, effective June 30, 2008, inserted “Cherokee” in subsection (g).

Session Laws 2008-134, s. 12(b), effective July 28, 2008, rewrote subsection (c).

Session Laws 2009-112, s. 4, effective June 16, 2009, inserted “to Surry County District S” in subsection (g).

Session Laws 2009-157, s. 2, effective June 23, 2009, inserted “Forsyth” in subsection (g).

Session Laws 2009-297, s. 3, effective July 16, 2009, substituted “Washington, and Wilson” for “and Washington” in subsection (g).

Session Laws 2010-78, s. 10, effective July 9, 2010, inserted “to Wilkes County District K” in subsection (g).

Session Laws 2010-31, s. 31.6(c) and (d), effective January 1, 2011, and applicable to gross receipts derived from the rental of an accommodation that a consumer occupies or has the right to occupy on or after that date, rewrote subsection (c); and in subsection (g), added “Applicability. —” and the first two sentences, and in the last sentence, added “The remainder of” at the beginning.

Session Laws 2011-113, s. 4, effective June 9, 2011, inserted “Moore” in subsection (g).

Session Laws 2011-115, s. 4, effective June 9, 2011, inserted “Rutherford” in subsection (g).

Session Laws 2011-170, s. 5, effective June 17, 2011, inserted “Jackson” in subsection (g).

Session Laws 2015-128, s. 7, effective June 29, 2015, inserted “Graham,” preceding “Granville” in subsection (g).

Session Laws 2015-255, s. 6.1, effective September 29, 2015, inserted “Wayne,” preceding “and Wilson Counties” in subsection (g).

Session Laws 2017-202, s. 9.1(b), inserted “Harnett County District H” and made stylistic changes in the last sentence of subsection (g).

Session Laws 2018-5, s. 38.10(e), 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(g), in subsection (c), in the last sentence of the first paragraph, substituted “An accommodation facilitator, as defined in G.S. 105-164.3 ” for “A rental agent or a facilitator, as defined in G.S. 105-164.4 F” and substituted “accommodation facilitator” for “rental agent or facilitator.” For effective date and applicability, see editor’s note.

§ 153A-156. Gross receipts tax on short-term leases or rentals.

As a substitute for and in replacement of the ad valorem tax, which is excluded by G.S. 105-275(42), a county 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.
If a county 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 county 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 county.
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 county and are not subject to creditor liens against the entity.
A tax levied under this section shall be collected by the county but otherwise administered in the same manner as the tax levied under G.S. 105-164.4(a)(2).
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 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 possess a commercial drivers license.
  3. A trailer or semitrailer with a gross vehicle weight of 6,000 pounds or less.
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 county board of commissioners may exercise any power the Secretary of Revenue may exercise in collecting local sales and use taxes.

History. 2000-2, s. 2; 2000-140, s. 75(b); 2019-69, s. 5.

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 2019-69, s. 6, made the amendment to subdivision (e)(1) of this section by Session Laws 2019-69, s. 5, effective October 1, 2019, and applicable to vehicle subscription agreements entered into on or after that date.

Effect of Amendments.

Session Laws 2019-69, s. 5, effective October 1, 2019, rewrote subdivision (e)(1), which formerly read: “Short-term lease or rental. — Defined in G.S. 105-187.1(4).” For effective date and applicability, see editor’s note.

§ 153A-156.1. Heavy equipment gross receipts tax in lieu of property tax.

Definitions. — The following definitions apply in this section:
1. Heavy equipment. — Earthmoving, construction, or industrial equipment that is mobile, weighs at least 1,500 pounds, and meets any of the descriptions listed in this subdivision. The term includes an attachment for heavy equipment, regardless of the weight of the attachment.
  1. It is a self-propelled vehicle that is not designed to be driven on a highway.
  2. It is industrial lift equipment, industrial material handling equipment, industrial electrical generation equipment, or a similar piece of industrial equipment.
2. Short-term lease or rental. — Defined in G.S. 105-187.1 .
Tax Authorized. — A county may, by resolution, impose a tax at the rate of one and two-tenths percent (1.2%) 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.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 county under this section if the place of business from which the heavy equipment is delivered is located in the county.
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 county finance officer. 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.
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 county finance officer has the same authority as the Secretary of Revenue in imposing these penalties and remedies.
Effective Date. — A tax imposed under this section becomes effective on the date set in the resolution 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 resolution is adopted.
Repeal. — A county may, by resolution, repeal a tax imposed under this section. The repeal is effective on the date set in the resolution. 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 resolution is adopted.

History. 2008-144, s. 2.

Article 8. County Property.

Part 1. Acquisition of Property.

§ 153A-157.

Recodified as § 153A-158.1(a) by Session Laws 1995, c. 17, s. 15(a), effective March 23, 1995.

Editor’s Note.

This section was recodified by Session Laws 1995, c. 17, s. 15(a) as G.S. 153A-158.1(a).

Session Laws 1989 (Reg. Sess., 1990), c. 885, s. 1, effective July 10, 1990, as amended by Session Laws 1991 (Reg. Sess., 1992), c. 832, s. 1, effective July 2, 1992; c. 848, s. 1, effective July 6, 1992; c. 865, s. 1, effective July 7, 1992; and c. 1001, s. 1, effective July 21, 1992, had been codified as this section at the direction of the Revisor of Statutes.

§ 153A-158. Power to acquire property.

A county 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 county or any department, board, commission, or agency of the county. In exercising the power of eminent domain a county shall use the procedures of Chapter 40A.

History. 1868, c. 20, ss. 3, 8; 1879, c. 144, s. 1; Code, ss. 704, 707; Rev., ss. 1310, 1318; C.S., ss. 1291, 1297; 1973, c. 822, s. 1; 1981, c. 919, s. 21; 1995, c. 17, s. 14; 2011-284, s. 106.

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 .

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.

Effect of Amendments.

Session Laws 2011-284, s. 106, effective June 24, 2011, deleted “bequest” following “devise” in the first sentence.

Legal Periodicals.

For comment, “Urban Planning and Land Use Regulation: The Need for Consistency,” see 14 Wake Forest L. Rev. 81 (1978).

CASE NOTES

Editor’s Note. —

Many of the cases cited below were decided under corresponding sections of former law.

General County Authority. —

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 ; and (4) plaintiff failed to overcome the presumption of legality afforded public officials; therefore, 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 N.C. App. LEXIS 532 (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, 1997 N.C. App. LEXIS 231 (1997).

The building and repairing of a courthouse by the county is a part of its necessary expense. Burgin v. Smith, 151 N.C. 561 , 66 S.E. 607, 1909 N.C. LEXIS 323 (1909); Jackson v. Board of County Comm'rs, 171 N.C. 379 , 88 S.E. 521, 1916 N.C. LEXIS 89 (1916).

A jail is a necessary county expense, and in the absence of statutory restrictions, the county commissioners may pledge the credit of the county in order to obtain one. Haskett v. Tyrrell County, 152 N.C. 714 , 68 S.E. 202, 1910 N.C. LEXIS 355 (1910).

Courts cannot substitute their judgment for that of the county officials honestly and fairly exercised. For a court to enjoin a proposed expenditure, there must be allegation and proof that the county officials acted in wanton disregard of public good. Barbour v. Carteret County, 255 N.C. 177 , 120 S.E.2d 448, 1961 N.C. LEXIS 555 (1961).

Effect of Limit on Expense Imposed by Legislature. —

When a special act of the legislature has imposed a limit on the expense of a county to be incurred in improving its courthouse, the commissioners cannot avoid the will of the legislature as therein declared by setting up a general power of contracting debts for necessary expenses, limited only by the constitutional limitation of taxation, and thus under an entire contract made beforehand expend a larger amount for the purpose than that prescribed by the special act. Burgin v. Smith, 151 N.C. 561 , 66 S.E. 607, 1909 N.C. LEXIS 323 (1909).

Authority to Levy Special Tax. —

While the county commissioners are clothed with the necessary power to erect and repair county buildings, they have no power to levy a special tax out of which to pay the interest and create a sinking fund, unless they have the special authority of the General Assembly. Harrell v. Board of Comm'rs, 206 N.C. 225 , 173 S.E. 614, 1934 N.C. LEXIS 148 (1934) (holding that the county had such authority under former §§ 153-1, 153-9(8) and 153-77) .

County Bound by Conditions Expressed in Conveyance. —

Where a county, owning a site upon which to build its courthouse, is authorized by statute to buy, sell, and exchange real estate surrounding it upon such terms and conditions as it may deem just and proper, and for the best interest of the county, and in pursuance of this authority has acquired a conveyance of lands from adjoining owners upon condition that they shall be used as a public square and kept open for that purpose, etc., regardless of whether such conditions are called conditions subsequent or otherwise they are within the purview of the authority conferred upon the county; and coming within the intent of the parties as expressed in the conveyance, and forming a material part of the consideration for the lands, they are valid and binding upon the county. Guilford County v. Porter, 167 N.C. 366 , 83 S.E. 564, 1914 N.C. LEXIS 130 (1914).

Commissioners Not Individually Liable for Failure to Take Contractor’s Bond. —

County commissioners are not individually liable for the failure of their ministerial duty to take the bond required from a contractor for the erection of a county home, such not having been expressly declared; and the remedy is by indictment. Fore v. Feimster, 171 N.C. 551 , 88 S.E. 977, 1916 N.C. LEXIS 126 (1916).

§ 153A-158.1. Acquisition and improvement of school property.

Acquisition by County. — A county may acquire, by any lawful method, any interest in real or personal property for use by a school administrative unit within the county. In exercising the power of eminent domain a county shall use the procedures of Chapter 40A. The county shall use its authority under this subsection to acquire property for use by a school administrative unit within the county only upon the request of the board of education of that school administrative unit and after a public hearing.
Construction or Improvement by County. — A county may construct, equip, expand, improve, renovate, or otherwise make available property for use by a school administrative unit within the county. The local board of education shall be involved in the design, construction, equipping, expansion, improvement, or renovation of the property to the same extent as if the local board owned the property.
Lease or Sale by Board of Education. — Notwithstanding the provisions of G.S. 115C-518 and G.S. 160A-274 , a local board of education may, in connection with additions, improvements, renovations, or repairs to all or part of any of its property, lease or sell the property to the board of commissioners of the county in which the property is located for any price negotiated between the two boards.
Board of Education May Contract for Construction. — Notwithstanding the provisions of G.S. 115C-40 and G.S. 115C-521 , a local board of education may enter into contracts for the erection of school buildings upon sites owned in fee simple by one or more counties in which the local school administrative unit is located.
Scope. — This section applies in every county.

History. 1868, c. 20, ss. 3, 8; 1879, c. 144, s. 1; Code, ss. 704, 707; Rev., ss. 1310, 1318; C.S., ss. 1291, 1297; 1973, c. 822, s. 1; 1981, c. 919, s. 21; 1991, cc. 120, 533; 1991, c. 1001, s. 2; 1991 (Reg. Sess., 1992), c. 832, s. 1; c. 848, s. 1; c. 865, s. 1; c. 1001, s. 1; 1993 (Reg. Sess., 1994), c. 611, ss. 1.1, 2; c. 612, ss. 1-3; c. 614, ss. 1-4; c. 622, ss. 1-3; c. 623, ss. 1-3; c. 642, s. 3(a), (c), (d); c. 655, ss. 1-3; 1995, c. 17, ss. 15(a), (b), 16; c. 251, ss. 1, 2; 1995 (Reg. Sess., 1996), c. 651, s. 1; c. 702, s. 1; c. 703, s. 1; c. 705, s. 1; c. 737, s. 1; 1996, 2nd Ex. Sess., c. 11, s. 1; 1997-24, s. 1; 1997-162, s. 1; 1997-190, s. 1; 1997-236, s. 3; 1997-409, s. 1; 1998-33, s. 1; 1998-48, s. 1; 1998-201, s. 1; 1999-65, s. 1; 2001-76, s. 1; 2001-427, s. 7(a); 2003-89, s. 1; 2003-355, s. 1.

Local Modification.

Ashe: 1993 (Reg. Sess., 1994), c. 622, s. 1.1; Avery: 1993 (Reg. Sess., 1994), c. 622, s. 1.1; Bladen: 1981, c. 134, s. 2; Brunswick: 1981, c. 283; 1993 (Reg. Sess., 1994), c. 612, s. 1.1; Cabarrus: 1985, c. 194, s. 3; Chowan: 1993 (Reg. Sess., 1994), c. 655, s. 1.1; Columbus: 1981, c. 270; Currituck: 1995, c. 363, s. 1; Forsyth: 1993 (Reg. Sess., 1994), c. 642, s. 3(b), (d); Franklin: 1981, c. 941; Guilford: 1995 (Reg. Sess., 1996), c. 750; Harnett: 1993 (Reg. Sess., 1994), c. 622, s. 1.1; c. 623, s. 1.1; Haywood: 1993 (Reg. Sess., 1994), c. 611, s. 1.1; Johnston: 1981, c. 459; Lee: 1993 (Reg. Sess., 1994), c. 622, s. 1.1; c. 623, s. 1.1; Macon: 1993 (Reg. Sess., 1994), c. 611, s. 1.1; Mecklenburg: 1995 (Reg. Sess., 1996), c. 750; Nash: 1993 (Reg. Sess., 1994), c. 642, s. 3(b), (d); Orange: 1993 (Reg. Sess., 1994), c. 642, s. 3(b), (d); Pasquotank: 1993 (Reg. Sess., 1994), c. 655, s. 1.1; Pender: 1981, c. 283; Richmond: 1991, c. 533, s. 1; 1993 (Reg. Sess., 1994), c. 614, s. 2; Sampson: 1981, c. 459; 1991, c. 533, s. 1; 1993 (Reg. Sess., 1994), c. 614; Union: 1995, c. 363, s. 1.

Editor’s Note.

At the direction of the Revisor of Statutes, local modifications to G.S. 153A-157 have been enacted as this section.

Subsection (a) of this section is former G.S. 153A-157 as recodified by Session Laws 1995, c. 17, s. 15(a). The historical citation from the former section has been added to this section as recodified.

§ 153A-158.2. Acquisition and improvement of community college property.

Acquisition. — A county may acquire, by any lawful method, any interest in real or personal property for use by a community college within the county. In exercising the power of eminent domain for real property, a county shall use the procedures of Chapter 40A of the General Statutes.
Construction; Disposition. — A county may construct, equip, expand, improve, renovate, repair, or otherwise make available property for use by a community college within the county and may lease, sell, or otherwise dispose of property for use by a community college within the county for any price and on any terms negotiated by the board of county commissioners and the board of trustees of the community college.
Public Hearing. — A county may use its authority under this section to acquire an interest in real or personal property for use by a community college within the county only upon request of the board of trustees of the community college for which property is to be made available. The board of county commissioners shall hold a public hearing prior to final action. A notice of the public hearing shall be published at least once at least 10 days before the date fixed for the hearing.

History. 1999-115, s. 1.

§§ 153A-159 through 153A-162. [Repealed]

Repealed by Session Laws 1981, c. 919, s. 20.

Cross References.

For present provisions as to eminent domain, see Chapter 40A.

§ 153A-163. Acquisition of property at a judicial sale, execution sale, or sale pursuant to a power of sale; disposition of such property.

A county, city, or other unit of local government may purchase real property at a judicial sale, an execution sale, or a sale made pursuant to a power of sale, to secure a debt due the county, city, or other unit. The purchasing government may sell any property so acquired by private sale for not less than the amount of its bid or may sell or exchange the property for any amount according to the procedures prescribed by Chapter 160A, Article 12.

History. 1868, c. 20, s. 8; 1879, c. 144, s. 1; Code, s. 707; Rev., s. 1318; C.S., s. 1297; 1973, c. 822, s. 1.

§ 153A-164. Joint buildings.

Two or more counties, cities, other units of local government (including local boards of education), or any combination of such governments may jointly acquire or construct public buildings to house offices, departments, bureaus, agencies, or facilities of each government. The governments may acquire any land necessary for a joint building or may use land already held by one of the governments.

In exercising the powers granted by this section, the governments shall proceed according to the procedures and provisions of Chapter 160A, Article 20, Part 1.

History. 1965, c. 682, s. 1; 1973, c. 822, s. 1.

§ 153A-165. Leases.

A county may 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 Chapter 143, Article 8.

History. 1973, c. 822, s. 1.

§§ 153A-166 through 153A-168.

Reserved for future codification purposes.

Part 2. Use of County Property.

§ 153A-169. Care and use of county property; sites of county buildings.

The board of commissioners shall supervise the maintenance, repair, and use of all county property. The board may issue orders and adopt by ordinance or resolution regulations concerning the use of county property, may designate and redesignate the location of any county department, office, or agency, and may designate and redesignate the site for any county building, including the courthouse. Before it may redesignate the site of the courthouse, the board of commissioners shall cause notice of its intention to do so to be published once at least four weeks before the meeting at which the redesignation is made.

History. 1868, c. 20, ss. 3, 8; Code, ss. 704, 707; Rev., ss. 1310, 1318; C.S., ss. 1291, 1297; 1925, c. 229; 1927, c. 91, ss. 11, 13; 1957, c. 909, s. 1; 1961, c. 811; 1967, c. 581, s. 1; 1973, c. 822, s. 1.

CASE NOTES

Editor’s Note. —

Most of the cases cited below were decided under corresponding sections of former law.

Duties Involving Construction of Public Building Inherent in Office of County Commissioner. —

County commissioners, in approving the design, the method of construction and the site for a public building and the amount to be paid for the site are performing duties inherent in their offices, expressly conferred by the legislature. Barbour v. Carteret County, 255 N.C. 177 , 120 S.E.2d 448, 1961 N.C. LEXIS 555 (1961).

In taxpayer suit against county commissioners for entering into a contract that benefitted one of the commissioners, the actions of the commissioners who were not benefitted, regarding expending funds for the renovation of the county courthouse and county health department, were consistent with the course and scope of their office. Gibbs v. Mayo, 162 N.C. App. 549, 591 S.E.2d 905, 2004 N.C. App. LEXIS 252 (2004).

Repairing a courthouse is a necessary county expense. Burgin v. Smith, 151 N.C. 561 , 66 S.E. 607, 1909 N.C. LEXIS 323 (1909).

Discretion of Commissioners with Respect to Repair or Erection of Courthouse or Jail. —

It is within the sound discretion of the county commissioners to have the courthouse or jail of the county repaired or to erect new ones on the same sites as a necessary county expense, which will not be reviewed in the courts in the absence of mala fides; and should a bill of indictment be drawn by the solicitor, at the request of the judge holding the courts of the county, and a true bill be found by the grand jury thereon, it is open to the commissioners to set up any available defense they may have. Jackson v. Board of County Comm'rs, 171 N.C. 379 , 88 S.E. 521, 1916 N.C. LEXIS 89 (1916).

As to extent of commissioners’ responsibility with respect to a privy, see Threadgill v. Board of Comm'rs, 99 N.C. 352 , 6 S.E. 189, 1888 N.C. LEXIS 301 (1888).

The site of a county building embraces only the space occupied by the building and such adjacent land as is reasonably required for the convenient use of the building. Brown v. Candler, 236 N.C. 576 , 73 S.E.2d 550, 1952 N.C. LEXIS 614 (1952).

Location of Court House. —

The Board of County Commissioners had authority under this section to redesignate the location of the county courthouse, where the new location was outside the boundaries designated by prior special acts of the General Assembly. Bethune v. County of Harnett, 349 N.C. 343 , 507 S.E.2d 40, 1998 N.C. LEXIS 721 (1998).

§ 153A-170. Regulation of parking on county property.

A county may by ordinance regulate parking of motor vehicles on county-owned property. Such an ordinance may be enforced pursuant to G.S. 153A-123 . In addition, the ordinance may provide that vehicles parked in violation thereof may be removed from the property by the county or an agent of the county to a storage area or garage. If a vehicle is so removed, the owner, as a condition of regaining possession of the vehicle, shall be required to pay to the county all reasonable costs incidental to the removal and storage of the vehicle and any fine or penalty due for the violation.

History. 1961, c. 191; 1971, c. 109; 1973, c. 822, s. 1.

§§ 153A-171 through 153A-175.

Reserved for future codification purposes.

Part 3. Disposition of County Property.

§ 153A-176. Disposition of property.

A county may dispose of any real or personal property belonging to it according to the procedures prescribed in Chapter 160A, Article 12. For purposes of this section references in Chapter 160A, Article 12, to the “city,” the “council,” or a specific city official are deemed to refer, respectively, to the county, the board of commissioners, and the county official who most nearly performs the same duties performed by the specified city official. For purposes of this section, references in G.S. 160A-266(c) to “one or more city officials” are deemed to refer to one or more county officials designated by the board of county commissioners.

History. 1868, c. 20, ss. 3, 8; Code, ss. 704, 707; Rev., ss. 1310, 1318; C.S., ss. 1291, 1297; 1973, c. 822, s. 1; 1983, c. 130, s. 2.

Local Modification.

Alamance: 1995 (Reg. Sess., 1996), c. 618, s. 2; Bladen: 1993 (Reg. Sess., 1994), c. 721, ss. 1, 2; Durham: 1985 (Reg. Sess., 1986), c. 908; Halifax: 1987, cc. 238, 239; Lee: 1987 (Reg. Sess., 1988), c. 933; Lincoln: 1983 (Reg. Sess., 1984), c. 944; 1989, c. 411, s. 1; McDowell: 1987 (Reg. Sess., 1988), c. 909; Pamlico: 1985, c. 386; Pender: 1989, c. 503, s. 1; 1993, c. 52, s. 1; Polk: 1989, c. 375, s. 1; Rowan: 1987, c. 157; Scotland: 1987, c. 57; Transylvania: 1989, c. 4; Tyrrell: 1987, c. 9.

Cross References.

As to disposition of retired service animals, see G.S. 20-187.4 .

Editor’s Note.

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.

CASE NOTES

Editor’s Note. —

Most of the cases cited below were decided under corresponding sections of former law.

Commissioners Act as Fiduciaries or Trustees. —

Boards of commissioners, in selling or leasing real property belonging to the county, are acting as fiduciaries or trustees for the taxpayers and citizens of the county, and must exercise their best judgment and skill, as reasonable men, to obtain the best price for the land. Puett v. Gaston County, 19 N.C. App. 231, 198 S.E.2d 440, 1973 N.C. App. LEXIS 1620 (1973).

When Commissioners May Not Sell Property. —

County commissioners have no power to sell property held for corporate purposes where its alienation would tend to embarrass or prevent the performance of their duties to the public. Vaughn v. Commissioners of Forsyth County, 118 N.C. 636 , 24 S.E. 425, 1896 N.C. LEXIS 109 (1896).

Power to sell is not a power to mortgage; hence, express authority conferred upon county commissioners to sell real estate of the county at a fair price does not imply power to encumber the same by a mortgage. Threadgill v. Board of Comm'rs, 99 N.C. 352 , 6 S.E. 189, 1888 N.C. LEXIS 301 (1888).

County commissioners had no authority to convey land on which they proposed to erect courthouse by a mortgage deed to secure the bonds issued to build it, and thereby render the site and buildings liable to sale for satisfaction of the debt. Vaughn v. Commissioners of Forsyth County, 118 N.C. 636 , 24 S.E. 425, 1896 N.C. LEXIS 109 (1896).

Right of Taxpayer to Bring Action to Restrain Execution of Mortgage. —

Though a proposed mortgage of county land by the county commissioners to secure bonds issued to build a courthouse would be void, and equity would enjoin foreclosure thereunder, a taxpayer may bring an action to restrain the execution of the mortgage without waiting until foreclosure is threatened. Vaughn v. Commissioners of Forsyth County, 118 N.C. 636 , 24 S.E. 425, 1896 N.C. LEXIS 109 (1896).

Lease Treated as Sale of 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 N.C. App. LEXIS 1710 (2009).

§ 153A-177. Reconveyance of property donated to a local government.

If real or personal property is conveyed without consideration to a county, city, or other unit of local government to be used for a specific purpose set out in the instrument of conveyance and the governing body of the county, city, or other unit of local government determines that the property will not be used for that purpose, the county, city, or other unit of local government may reconvey the property without consideration to the grantor or his heirs, assigns, or nominees. Before it may make a reconveyance, the county, city, or other unit of local government shall publish once a week for two weeks notice of its intention to do so.

History. 1937, c. 441; 1973, c. 822, s. 1.

§ 153A-178. Disposition of county property for a State psychiatric hospital.

When the Secretary of Health and Human Services selects a county for the location of a new State psychiatric hospital as authorized by law, the county selected for the location of the new State psychiatric hospital is authorized under the general law to acquire real and personal property and convey it to the State under G.S. 160A-274 or other applicable law for use as a psychiatric hospital. The county may acquire the property by eminent domain, and the power under this section is supplementary to any other power the county may have to take property by eminent domain.

History. 2003-314, s. 3.2.

Editor’s Note.

Session Laws 2003-314, s. 3.1, provides: “The Secretary of Health and Human Services shall maintain all existing educational and research programs in psychiatry and psychology conducted at Dorothea Dix Hospital and John Umstead Hospital by the University of North Carolina School of Medicine and by the Psychology Department within the College of Arts and Sciences at the University of North Carolina at Chapel Hill, unless the programs are otherwise modified by the University of North Carolina School of Medicine or the College of Arts and Sciences. The University of North Carolina School of Medicine shall retain authority over all educational and research programs in psychiatry and the University of North Carolina College of Arts and Sciences shall retain authority over all educational and research programs in psychology conducted at these hospitals and at any new State psychiatric hospital. The Secretary shall consult with the University of North Carolina School of Medicine in programmatic, operational, and facility planning of the new psychiatric hospital to ensure appropriate patient treatment and continuation of educational and research programs conducted by the University of North Carolina School of Medicine. In addition, the Secretary shall consult with the University of North Carolina College of Arts and Sciences to ensure appropriate continuation of educational and research programs conducted by the University of North Carolina College of Arts and Sciences.”

Session Laws 2003-314, ss. 3.4(a), (a1) and (b), as amended by Session Laws 2004-124, s. 10.26A(a), as amended by 2005-7, s. 1, and as amended by Session Laws 2006-248, s. 52, provides: “(a) Dorothea Dix Hospital Property Study Commission. — If any of the State-owned real property encompassing the Dorothea Dix Hospital campus is no longer needed by Dorothea Dix Hospital and is not transferred to another State agency or agencies before the sale of any or all of the property to a nongovernmental entity, options for this sale shall be considered by the Dorothea Dix Hospital Property Study Commission. The Commission shall make recommendations on the options for sale of the property to the Joint Legislative Commission on Governmental Operations before any sale of any or all parts of the property.

“(a1) The State Property Office, in consultation with the City of Raleigh, shall develop a Master Plan for the Dorothea Dix Campus. The State Property Office shall hire a consultant to assist with the development of the Master Plan. The State Property Office shall examine, among other things, operations for land conservation, mixed-use development, and anticipated State office space needs. The Master Plan shall reflect both State needs and local considerations. The State Property Office shall submit the Master Plan to the Dorothea Dix Property Study Commission no later than September 1, 2005. The Commission shall review the Master Plan and shall make recommendations to the 2006 Session of the 2005 General Assembly.

“In order to enhance communication and feedback regarding the planning process, an oversight committee shall be established to oversee the development of the Master Plan. The oversight committee shall consist of five members: three shall be appointed by the Cochairs of the Dorothea Dix Property Study Commission; one shall be appointed by the Raleigh City Council; and one shall be appointed by the Wake County Board of Commissioners. The oversight committee shall terminate upon the submission of the Master Plan to the Dorothea Dix Property Study Commission.

“(b) Creation and Membership. — The Dorothea Dix Hospital Property Study Commission is created. The Commission shall consist of 11 members, five appointed by the President Pro Tempore of the Senate and five appointed by the Speaker of the House of Representatives. The Secretary of Health and Human Services shall serve as an ex officio member of the Commission.”

Session Laws 2003-314, ss. 4.1(a) through (c), provides: “Interpretation of Act. (a) Additional Method. — This act provides an additional and alternative method for the doing of the things authorized by this act and shall be regarded as supplemental and additional to powers conferred by other laws. Except where expressly provided, this act shall not be regarded as in derogation of any powers now existing. The authority granted in this act is in addition to other laws now or hereinafter enacted authorizing the State to issue or incur indebtedness.

“(b) Statutory References. — References in this act to specific sections or Chapters of the General Statutes are intended to be references to those sections or Chapters as they may be amended from time to time by the General Assembly.

“(c) Liberal Construction. — This act, being necessary for the health and welfare of the people of the State, shall be liberally construed to effect its purposes.”

Session Laws 2003-314, s. 4.1(d), is a severability clause.

§§ 153A-179 through 153A-184.

Reserved for future codification purposes.

Article 9. Special Assessments.

§ 153A-185. Authority to make special assessments.

A county may make special assessments against benefited property within the county for all or part of the costs of:

Constructing, reconstructing, extending, or otherwise building or improving water systems;
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;
Acquiring, constructing, reconstructing, extending, renovating, enlarging, maintaining, operating, or otherwise building or improving
1. Beach erosion control or flood and hurricane protection works; and
2. Watershed improvement projects, drainage projects and water resources development projects (as those projects are defined in G.S. 153A-301 ).
Constructing, reconstructing, paving, widening, installing curbs and gutters, and otherwise building and improving streets, as provided in G.S. 153A-205 .
Providing street lights and street lighting in a residential subdivision, as provided in G.S. 153A-206 . A county may not assess property within a city pursuant to subdivision (1) or (2) of this section unless the governing board of the city has by resolution approved the project.

History. 1963, c. 985, s. 1; 1965, c. 714; 1969, c. 474, s. 1; 1973, c. 822, s. 1; 1975, c. 487, s. 1; 1979, c. 619, s. 11; 1983, c. 321, s. 1; 1989 (Reg. Sess., 1990), c. 923, s. 1.

Local Modification.

(As to Article 9) Avery and Brunswick: 1987 (Reg. Sess., 1988), c. 1046; Lincoln: 1997, c. 169; Mecklenburg: 1983, c. 189.

Cross References.

As to applicability to assessments levied by water and sewer authorities established pursuant to Chapter 162A, Article 1, see G.S. 162A-6 .

Editor’s Note.

Session Laws 2010-129, s. 7, as amended by Session Laws 2011-205, s. 1, effective June 23, 2011, 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.”

CASE NOTES

Beach Erosion. —

County complied with G.S. 153A-185 assessment against benefitted properties for an inlet relocation because the project was designed to counter beach erosion, which was a permitted reason for such an assessment. Parker v. New Hanover County, 173 N.C. App. 644, 619 S.E.2d 868, 2005 N.C. App. LEXIS 2227 (2005).

§ 153A-186. Bases for making assessments.

For water or sewer projects, 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 street frontage of the lots served, or subject to being served, by the project, at an equal rate per foot of frontage; or
3. The area of land served, or subject to being served, by the project, at an equal rate per unit of area; or
4. The valuation of land served, or subject to being served, 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. The number of lots served, or subject to being served, by the project when the project involves extension of an existing system to a residential or commercial subdivision, at an equal rate per lot; or
6. A combination of two or more of these bases.
For beach erosion control or flood and hurricane protection works, watershed improvement projects, drainage projects and water resources development projects, 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 frontage abutting on a beach or shoreline or watercourse 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 board of commissioners shall provide for the laying out of one or more benefit zones according (i), in water or sewer projects, to the distance of benefited property from the project being undertaken and (ii), in beach erosion control or flood and hurricane protection works, watershed improvement projects, drainage projects and water resources development projects, to the distance from the shoreline or watercourse, the distance from the project, the elevation of the land, or other relevant factors. If more than one benefit zone is established, the board shall establish differing rates of assessment to apply uniformly throughout each benefit zone.
For each project, the board of commissioners shall endeavor to establish an assessment method from among the bases set out in this section that will most accurately assess each lot or parcel of land according to the benefit conferred upon it by the project. The board’s decision as to the method of assessment is final and not subject to further review or challenge.

History. 1963, c. 985, s. 1; 1965, c. 714; 1973, c. 822, s. 1; 1983, c. 321, ss. 2, 3.

CASE NOTES

Consideration of Third Parties. —

County’s assessment for an inlet relocation was not set aside under G.S. 153A-186(d) because a board did not abrogate its responsibility when it took outside suggestions from third parties. Parker v. New Hanover County, 173 N.C. App. 644, 619 S.E.2d 868, 2005 N.C. App. LEXIS 2227 (2005).

Different Methods Permissible. —

G.S. 153-186 specifically anticipates that a project may require different methods for different geographical areas involved in a project and that a combination of methods may be used; therefore, an owner’s challenge to an assessment imposed for inlet relocation based on this reason was properly denied. Parker v. New Hanover County, 173 N.C. App. 644, 619 S.E.2d 868, 2005 N.C. App. LEXIS 2227 (2005).

What Challenge is Permissible. —

Plain language of G.S. 153A-186(d) and G.S. 153A-197 suggests that, while a landowner may appeal a special assessment, he may not challenge the board of commissioners’ choice of which method or methods provided for in the statute should be used in calculating the assessment; nothing, however, in G.S. 153A-186(d) precludes a property owner from arguing that the special assessment was for a purpose not authorized by statute, that the board of commissioners improperly abrogated its responsibilities under G.S. 153A-186(d) in choosing a method of calculation, or that the method chosen was not one permitted by the statute. Parker v. New Hanover County, 173 N.C. App. 644, 619 S.E.2d 868, 2005 N.C. App. LEXIS 2227 (2005).

§ 153A-187. Corner lot exemptions.

The board of commissioners may establish schedules of exemptions from assessments for water or sewer projects for corner lots when water or sewer lines are installed along both sides of the lots. A schedule of exemptions shall be based on categories of land use (residential, commercial, industrial, and agricultural) and shall be uniform for each category. A schedule may not allow 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. 1963, c. 985, s. 1; 1973, c. 822, s. 1.

Local Modification.

Forsyth: 1999-89, s. 2; city of Winston-Salem: 1999-89, s. 2.

§ 153A-188. Lands exempt from assessment.

Except as provided in this Article, no land within a county is exempt from special assessments except land belonging to the United States that is exempt under the provisions of federal statutes and, in the case of water or sewer projects, land within any floodway delineated by a local government pursuant to Chapter 143, Article 21, Part 6. In addition, in the case of water or sewer projects, land owned, leased, or controlled by a railroad company is exempt from assessments by a county to the same extent that it would be exempt from assessments by a city under G.S. 160A-222 .

History. 1963, c. 958, s. 1; 1973, c. 822, s. 1.

Local Modification.

Brunswick: 1987, c. 712.

§ 153A-189. State participation in improvement projects.

If a county proposes to undertake a project that would benefit land owned by the State of North Carolina or a board, agency, commission, or institution of the State and to finance all or a part of the project by special assessments, the board of commissioners may request the Council of State to authorize the State to pay its ratable part of the cost of the project, and the Council of State may authorize these payments. The Council of State may authorize the Secretary of Administration to approve or disapprove requests from counties for payment pursuant to this section, but a county may appeal to the Council of State if the Secretary disapproves a request. The Council of State may direct that any payment authorized pursuant to this section be made from the Contingency and Emergency Fund of the State of North Carolina or from any other available funds. Except as State payments are authorized pursuant to this section, state-owned property is exempt from assessment under this Article.

History. 1973, c. 822, s. 1; 1975, c. 879, s. 46.

§ 153A-190. Preliminary resolution; contents.

Whenever the board of commissioners decides to finance all or part of a proposed project by special assessments, it shall first adopt a preliminary assessment resolution containing the following:

A statement of intent to undertake the project;
A general description of the nature and location of the project;
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 valuation;
A statement as to the percentage of the cost of the work that is to be specially assessed;
A statement as to which, if any, assessments shall be held in abeyance and for how long;
A statement as to the proposed terms of payment of the assessment; and
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.

History. 1963, c. 985, s. 1; 1965, c. 714; 1973, c. 822, s. 1.

CASE NOTES

Duties of County Commissioners When Financing Project by Special Assessments. —

Pursuant to this section, when all or any portion of a public enterprise is to be financed by assessments, the county commissioners are required to adopt a preliminary assessment resolution, which must contain information about the proposed project, a statement as to the percentage of the cost of the project that will be assessed, and an order setting a date for public hearing. The preliminary assessment resolution must be sent by first-class mail to each property owner in the project at least ten days prior to the public hearing. In return, the county receives a specific lien; the delinquency of the assessed obligation authorizes a foreclosure of property without any exemptions allowed or the payment of prior recorded liens except local, state, and federal taxes. McNeill v. Harnett County, 327 N.C. 552 , 398 S.E.2d 475, 1990 N.C. LEXIS 994 (1990).

§ 153A-191. Notice of preliminary resolution.

At least 10 days before the date set for the public hearing, the board of commissioners shall publish a notice that a preliminary assessment resolution has been adopted and that a public hearing on it will be held at a specified time and place. The notice shall describe generally the nature and location of the improvement. In addition, at least 10 days before the date set for the hearing, the board shall cause a copy of the preliminary assessment resolution to be mailed by first-class mail to each owner, as shown on the county tax records, of property subject to assessment if the project is undertaken. The person designated to mail these resolutions shall file with the board a certificate stating that they were mailed by first-class mail and on what date. In the absence of fraud, the certificate is conclusive as to compliance with the mailing requirements of this section.

History. 1963, c. 985, s. 1; 1965, c. 714; 1973, c. 822, s. 1.

Local Modification.

Brunswick: 1987 (Reg. Sess., 1988), c. 984.

CASE NOTES

Duties of County Commissioners When Financing Project by Special Assessments. —

Pursuant to G.S. 153A-190 , when all or any portion of a public enterprise is to be financed by assessments, the county commissioners are required to adopt a preliminary assessment resolution, which must contain information about the proposed project, a statement as to the percentage of the cost of the project that will be assessed, and an order setting a date for public hearing. The preliminary assessment resolution must be sent by first-class mail to each property owner in the project at least ten days prior to the public hearing. In return, the county receives a specific lien; the delinquency of the assessed obligation authorizes a foreclosure of property without any exemptions allowed or the payment of prior recorded liens except local, state, and federal taxes. McNeill v. Harnett County, 327 N.C. 552 , 398 S.E.2d 475, 1990 N.C. LEXIS 994 (1990).

County’s Election of Procedural Requirements Determines Remedies and Owners’ Protections. —

If no special assessment liens under G.S. 153A-200 exist on the property, the process invoked and completed, rather than the words used, is of paramount importance. If the requirements of this Article are met, the County then has certain remedies otherwise not available to it. However, if the County does not elect to acquire these statutory benefits by following the procedural requirements which would culminate in a lien on the property, the plaintiffs do not receive the statutory protections of notice and a hearing as set out in this section. McNeill v. Harnett County, 327 N.C. 552 , 398 S.E.2d 475, 1990 N.C. LEXIS 994 (1990).

§ 153A-192. Hearing on preliminary resolution; assessment resolution.

At the public hearing, the board of commissioners shall hear all interested persons who appear with respect to any matter covered by the preliminary assessment resolution. At or after the hearing, the board may adopt a final assessment resolution directing that the project or portions thereof be undertaken. The final 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:

The basis on which the special assessments will be made, together with a general description of the boundaries of the areas benefited if the basis of assessment is either area or valuation;
The percentage of the cost of the work that is to be specially assessed; and
The terms of payment, including the conditions, if any, under which assessments are to be held in abeyance.
The percentage of cost to be assessed may not be different from the percentage proposed in the preliminary assessment resolution, nor may the project authorized be greater in scope than the project described in that resolution. If the board decides that a different percentage of the cost should be assessed than that proposed in the preliminary assessment resolution, or that the project should be greater in scope than that described in that resolution, it shall adopt and advertise a new preliminary assessment resolution as provided in this Article.

History. 1963, c. 985, s. 1; 1965, c. 714; 1973, c. 822, s. 1.

Local Modification.

Brunswick: 1987 (Reg. Sess., 1988), c. 984.

§ 153A-193. Determination of costs.

When a project is complete, the board of commissioners shall determine the project’s total cost. In determining total cost, the board may include construction costs, the cost of necessary legal services, the amount of interest paid during construction, the cost of rights-of-way, and the cost of publishing and mailing notices and resolutions. The board’s determination of the total cost of a project is conclusive.

History. 1963, c. 985, s. 1; 1965, c. 714; 1973, c. 822, s. 1.

Local Modification.

Brunswick: 1987 (Reg. Sess., 1988), c. 984.

§ 153A-193.1. Discounts authorized.

The board of commissioners 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. 153A-196 . 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 final assessment resolution. The amount of any discount may not exceed thirty percent (30%).

History. 1983, c. 381, s. 1.

§ 153A-194. Preliminary assessment roll; publication.

When the total cost of a project has been determined, the board of commissioners shall cause a preliminary assessment roll to be prepared. The 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 lot, parcel, or tract as far as this can be ascertained from the county tax records. A map of the project on which is shown each lot, parcel, or tract assessed, the basis of its assessment, the amount assessed against it, and the name of its owner as far as this can be ascertained from the county tax records is a sufficient assessment roll.

After the preliminary assessment roll has been completed, the board shall cause the roll to be filed in the clerk’s office, where it shall be available for public inspection, and shall set the time and place for a public hearing on the roll. At least 10 days before the date set for the hearing, the board shall publish a notice that the preliminary assessment roll has been completed. The notice shall describe the project in general terms, note that the roll in the clerk’s office is available for inspection, and state the time and place for the hearing on the roll. In addition, at least 10 days before the date set for the hearing, the board shall cause a notice of the hearing to be mailed by first-class mail to each owner of property listed on the roll. The mailed notice shall state the time and place of the hearing, note that the roll in the clerk’s office is available for inspection, and state the amount as shown on the roll of the assessment against the property of the owner. The person designated to mail these notices shall file with the board a certificate stating that they were mailed by first-class mail and on what date. In the absence of fraud, the certificate is conclusive as to compliance with the mailing requirements of this section.

History. 1963, c. 985, s. 1; 1965, c. 714; 1973, c. 822, s. 1; 1983, c. 381, s. 2.

Local Modification.

Brunswick: 1987 (Reg. Sess., 1988), c. 984.

§ 153A-195. Hearing on preliminary assessment roll; revision; confirmation; lien.

At the public hearing the board of commissioners shall hear all interested persons who appear with respect to the preliminary assessment roll. At or after the hearing, the board shall annul, modify, or confirm the assessments, in whole or in part, either by confirming the preliminary assessments against any lot, parcel, or tract described in the preliminary assessment roll or by cancelling, increasing, or reducing the assessments as may be proper in compliance with the basis of assessment. If any property is found to be omitted from the preliminary assessment roll, the board may place it on the roll and make the proper assessment. When the board confirms assessments for a project, the clerk shall enter in the minutes of the board the date, hour, and minute of confirmation. From the time of confirmation, each assessment is a lien on the property assessed of the same nature and to the same extent as the lien for county or city property taxes, under the priorities set out in G.S. 153A-200 . After the assessment roll is confirmed, the board shall cause a copy of it to be delivered to the county tax collector for collection in the same manner (except as provided in this Article) as property taxes.

History. 1963, c. 985, s. 1; 1965, c. 714; 1973, c. 822, s. 1.

Local Modification.

Brunswick: 1987 (Reg. Sess., 1988), c. 984.

Cross References.

As to meaning of term “county tax collector,” see G.S. 162A-6 .

CASE NOTES

Assessment Not Confirmed. —

Trial court properly granted summary judgment to the property sellers in their action against the closing attorney for the breach of an escrow agreement regarding the payment of a sewer assessment; the attorney had no authority to pay the bill arising from the assessment, as the assessment was not confirmed within 16 months of the closing as required by the agreement. Marcuson v. Clifton, 154 N.C. App. 202, 571 S.E.2d 599, 2002 N.C. App. LEXIS 1405 (2002).

§ 153A-196. Publication of notice of confirmation of assessment roll.

No earlier than 20 days from the date the assessment roll is confirmed, the county tax collector shall publish once a notice that the roll has been confirmed. The notice shall also state 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 determined by the board of commissioners. 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. 1963, c. 985, s. 1; 1965, c. 714; 1973, c. 822, s. 1; 1983, c. 381, s. 3.

Local Modification.

Brunswick: 1987 (Reg. Sess., 1988), c. 984.

Cross References.

As to meaning of term “county tax collector,” see G.S. 162A-6 .

§ 153A-197. Appeal to the General Court of Justice.

If the owner of, or any person having an interest in, a lot, parcel, or tract of land against which an assessment is made is dissatisfied with the amount of the assessment, he may, within 10 days after the day the assessment roll is confirmed, file a notice of appeal to the appropriate division of the General Court of Justice. He shall then have 20 days after the day the roll is confirmed to serve on the board of commissioners or the clerk a statement of facts upon which the appeal is based. The appeal shall be tried like other actions at law.

History. 1963, c. 985, s. 1; 1965, c. 714; 1973, c. 822, s. 1.

CASE NOTES

Scope of Appeal. —

§ 153A-198. Reassessment.

When in its judgment an irregularity, omission, error, or lack of jurisdiction has occurred in any proceeding related to a special assessment made by it, the board of commissioners may set aside the assessment and make a reassessment. In that case, the board may include in the total project cost all additional interest paid, or to be paid, as a result of the delay in confirming the assessment. A reassessment proceeding shall, as far as practicable, follow the comparable procedures of an original assessment proceeding. A reassessment has the same force as if it originally had been made properly.

History. 1963, c. 985, s. 1; 1965, c. 714; 1973, c. 822, s. 1.

§ 153A-199. Payment of assessments in full or by installments.

Within 30 days after the day that notice of confirmation of the assessment roll is published, each owner of assessed property shall pay his assessment in full, unless the board of commissioners has provided that assessments may be paid in annual installments. If payment by installments is permitted, any portion of an assessment not paid within the 30-day period shall be paid in annual installments. The board shall in the assessment resolution determine whether payment may be made by annual installments and set the number of installments, which may not be more than 10. With respect to payment by installment, the board may provide

That the first installment with interest is due on the date when property taxes are due, and one installment with interest is due on the same date in each successive year until the assessment is paid in full, or
That the first installment with interest is due 60 days after the date that the assessment roll is confirmed, and one installment with interest is due on that same day in each successive year until the assessment is paid in full.

History. 1963, c. 985, s. 1; 1965, c. 714; 1973, c. 822, s. 1.

Local Modification.

Brunswick: 1987 (Reg. Sess., 1988), c. 984; Cumberland: 2008-109.

§ 153A-200. Enforcement of assessments; interest; foreclosure; limitations.

Any portion of an assessment that is not paid within 30 days after the day that notice of confirmation of the assessment roll is published shall, until paid, bear interest at a rate to be fixed in the assessment resolution. The maximum rate at which interest may be set is eight percent (8%) per annum.
If an installment of an assessment is not paid on or before the due date, all of the installments remaining unpaid immediately become due, unless the board of commissioners waives acceleration. The board may waive acceleration and permit the property owner to pay all installments in arrears together with interest due thereon and the cost to the county of attempting to obtain payment. If this is done, any remaining installments shall be reinstated so that they fall due as if there had been no default. The board may waive acceleration and reinstate further installments at any time before foreclosure proceedings have been instituted.
A county may foreclose assessment liens under any procedure provided by law for the foreclosure of property tax liens, except that (i) lien sales and lien sale certificates are not required and (ii) foreclosure may be begun at any time after 30 days after the due date. The county is not entitled to a deficiency judgment in an action to foreclose an assessment lien. The lien of special assessments is inferior to all prior and subsequent liens for State, local, and federal taxes, and superior to all other liens.
No county may maintain an action or proceeding to foreclose any special assessment lien 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) of this section does not have the effect of shortening the time within which foreclosure may be begun; in that event the statute of limitations continues to run as to each installment as if acceleration had not occurred.

History. 1963, c. 985, s. 1; 1965, c. 714; 1973, c. 822, s. 1.

Local Modification.

Rockingham: 1985 (Reg. Sess., 1986), c. 817.

CASE NOTES

Foreclosure of Assessment Liens. —

Special Assessment Proceeding. —

Forced sale of land under a general lien is subjected to exemptions and prior recorded liens. It is, therefore, the special assessment proceeding itself which creates the lien for the assessment. If the county commissioners elect not to pursue the procedure which would establish the lien, then the special proceeding is not necessary. McNeill v. Harnett County, 327 N.C. 552 , 398 S.E.2d 475, 1990 N.C. LEXIS 994 (1990).

County’s Election of Procedural Requirements Determines Remedies and Owners’ Protections. —

If no special assessment liens under this section exist on the property, the process invoked and completed, rather than the words used, is of paramount importance. If the requirements of this Article are met, the County then has certain remedies otherwise not available to it. However, if the County does not elect to acquire these statutory benefits by following the procedural requirements which would culminate in a lien on the property, the plaintiffs do not receive the statutory protections of notice and a hearing as set out in G.S. 153A-191 . McNeill v. Harnett County, 327 N.C. 552 , 398 S.E.2d 475, 1990 N.C. LEXIS 994 (1990).

§ 153A-201. Authority to hold assessments in abeyance.

The assessment resolution may provide that assessments made pursuant to this Article shall be held in abeyance without interest for any benefited property assessed. Water or sewer assessments may be held in abeyance until improvements on the assessed property are connected to the water or sewer system for which the assessment was made, or until a date certain not more than 10 years from the date of confirmation of the assessment roll, whichever event occurs first. Beach erosion control or flood and hurricane protection assessments may be held in abeyance for not more than 10 years from the date of confirmation of the assessment roll. When the period of abeyance ends, the assessment is payable 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 (for water or sewer assessments), or other relevant factors. The resolution shall also provide that the period of abeyance shall be the same for all assessed property in the same class.

Statutes of limitations are suspended during the time that any assessment is held in abeyance without interest.

History. 1963, c. 985, s. 1; 1965, c. 714; 1973, c. 822, s. 1.

§ 153A-202. Assessments on property held by tenancy for life or years; contribution.

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 pro rata by the tenant and the remaindermen after the life estate or by the tenant and the owner in fee after the expiration of the tenancy for years according to their respective interests in the land as calculated pursuant to G.S. 37-13.
If a person having an interest in land held by tenancy for life or years pays more than his pro rata share of an assessment against the property, he may maintain an action in the nature of a suit for contribution against any delinquent party to recover from that party his pro rata share of the assessment, with interest thereon from the date of the payment; and in addition, he is subrogated to the right of the county to a lien on the property for the delinquent party’s share of the assessment.

History. 1963, c. 985, c. 1; 1965, c. 714; 1973, c. 822, s. 1.

Editor’s Note.

Section 37-13, referred to in this section, was repealed by Session Laws 1973, c. 729, s. 3.

§ 153A-203. Lien in favor of a cotenant or joint owner paying special assessments.

Any one of several tenants in common or joint tenants (other than copartners) may pay the whole or any part of a special assessment made against property held in common or jointly. Any amount so paid that exceeds his share of the assessment and that was not paid through agreement with or on behalf of the other joint owners is a lien in his favor upon the shares of the other joint owners. This lien may be enforced in a proceeding for actual partition, a proceeding for partition and sale, or by any other appropriate judicial proceeding. This lien is not effective against an innocent purchaser for value until notice of the lien 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 that clerk’s office.

History. 1963, c. 985, s. 1; 1965, c. 714; 1973, c. 822, s. 1.

§ 153A-204. Apportionment of assessments.

If a special assessment has been made against property that has been or is about to be subdivided, the board of commissioners may, with the consent of the owner of the property, (i) apportion the assessment among the lots or tracts within the subdivision, or (ii) release certain lots or tracts from the assessment if, in the board’s opinion, the released lots or tracts are not benefited by the project, or (iii) both. Upon an apportionment each of the lots or tracts in the subdivision is released from the lien of the original assessment, and the portion of the original assessment assessed against each lot or tract has, as to that lot or tract, the same force as the original assessment. At the time the board makes an apportionment under this section, the clerk shall enter on the minutes of the board the date, hour, and minute of apportionment and a statement to the effect that the apportionment is made with the consent of the owners of the property affected, which entry is conclusive in the absence of fraud. The apportionment is effective at the time shown in the minute book. Apportionments may include past due installments with interest, as well as installments not then due; and any installment not then due shall fall due at the same date as it would have under the original assessment.

History. 1963, c. 985, s. 1; 1965, c. 714; 1973, c. 822, s. 1.

§ 153A-204.1. Maintenance assessments.

In order to pay for the costs of maintaining and operating a project, the board of commissioners may annually or at less frequent intervals levy maintenance and operating assessments for any project purpose set forth in G.S. 153A-185(3) on the same basis as the original assessment. The amount of these assessments shall be determined by the board of commissioners on the basis of the board’s estimate of the cost of maintaining and operating a project during the ensuing budget period, and the board’s decision as to the amount of the assessment is conclusive. In determining the total cost to be included in the assessment the board may include estimated costs of maintaining and operating the project, of necessary legal services, of interest payments, of rights-of-way, and of publishing and mailing notices and resolutions. References to “total costs” in provisions of this Article that apply to maintenance and operating assessments shall be construed to mean “total estimated costs.” Within the meaning of this section a “budget period” may be one year or such other budget period as the board determines.
All of the provisions of this Article shall apply to maintenance and operating assessments, except for G.S. 153A-190 through G.S. 153A-193 .

History. 1983, c. 321, s. 4.

§ 153A-205. Improvements to subdivision and residential streets.

A county may finance the local share of the cost of improvements made under the supervision of the Department of Transportation to subdivision and residential streets that are a part of the State maintained system located in the county and outside of a city and shall levy and collect pursuant to the procedures of Article 9 of Chapter 153A of the General Statutes special assessments against benefited property to recoup that portion of the costs financed by the county. The local share is that share required by policies of the Department of Transportation and may be paid by the county from funds not otherwise limited as to use by law. Land owned, leased, or controlled by a railroad company is exempt from such assessments to the same extent that it would be exempt from street assessments of a city under G.S. 160A-222 . No project may be commenced under this section unless it has been approved by the Department of Transportation.
A county may finance the local share of the cost of improvements made under the supervision of the Department of Transportation to subdivision and residential streets located in the county and outside of a city in order to bring those streets up to the standards of the Department of Transportation so that they may become a part of the State-maintained system and shall levy and collect pursuant to the procedures of Article 9 of Chapter 153A of the General Statutes special assessments against benefited property to recoup that portion of the costs financed by the county. The local share is that share required by policies of the Department of Transportation and may be paid by the county from funds not otherwise limited as to use by law. Land owned, leased, or controlled by a railroad company is exempt from such assessments to the same extent that it would be exempt from street assessments of a city under G.S. 160A-222 . No project may be commenced under this section unless it has been approved by the Department of Transportation.
Before a county may finance all or a portion of the cost of improvements to a subdivision or residential street, it must receive a petition for the improvements signed by at least seventy-five percent (75%) of the owners of property to be assessed, who must represent at least seventy-five percent (75%) of all the lineal feet of frontage of the lands abutting on the street or portion thereof to be improved. The petition shall state that portion of the cost of the improvement to be assessed, which shall be the local share required by policies of the Department of Transportation. A county may treat as a unit and consider as one street two or more connecting State-maintained subdivision or residential streets in a petition filed under this subsection calling for the improvement of subdivision or residential streets subject to property owner sharing in the cost of improvement under policies of the Department of Transportation.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 as provided in G.S. 153A-189 . Property owned, leased, or controlled by railroad companies shall be included in determining frontage and the number of owners to the extent the property is subject to assessment under G.S. 160A-222 . Property owned, leased, or controlled by railroad companies that is not subject to assessment shall not be included in determining frontage or the number of owners.No right of action or defense asserting the invalidity of street assessments on grounds that the county did not comply with this subsection in securing a valid petition may be asserted except in an action or proceeding begun within 90 days after the day of publication of the notice of adoption of the preliminary assessment resolution.
This section is intended to provide a means of assisting in financing improvements to subdivision and residential streets that are on the State highway system or that will, as a result of the improvements, become a part of the system. By financing improvements under this section, a county does not thereby acquire or assume any responsibility for the street or streets involved, and a county has no liability arising from the construction of such an improvement or the maintenance of such a street. Nothing in this section shall be construed to alter the conditions and procedures under which State system streets or other public streets are transferred to municipal street systems pursuant to G.S. 136-66.1 and 136-66.2 upon annexation by, or incorporation of, a municipality.

History. 1975, c. 487, s. 2; c. 716, s. 7; 1981, c. 768; 2014-115, s. 59.

Local Modification.

Cleveland: 2014-36, s. 1; Hyde: 1991 (Reg. Sess., 1992), c. 824.

Cross References.

As to liability of county for emergency medical services for prisoners working pursuant to G.S. 162-58 , see G.S. 162-61 .

Effect of Amendments.

Session Laws 2014-115, s. 59, effective August 11, 2014, substituted “Department of Transportation” for “Secondary Roads Council” in the second sentence of subsection (a), in the first and second sentences of subsection (b), and the second sentence of subsection (c).

§ 153A-206. Street light assessments.

Authorization. A county may annually levy special assessments against benefited property in a residential subdivision within the county and not within a city for the costs of providing street lights and street lighting pursuant to the procedures provided in this Article. The provisions of this Article, other than G.S. 153A-186 , G.S. 153A-187 and G.S. 153A-190 through G.S. 153A-193 , apply to street light assessments under this section.
Basis of Assessment. The estimated costs of providing street lights and street lighting shall be apportioned among all benefited property on the basis of the number of lots served, or subject to being served, by the street lights, at an equal rate per lot.
Amount of Assessment. The county shall determine the amount of the assessments on the basis of an estimate of the cost of constructing or operating the street lights during the ensuing year, and the board of commissioners’ determination of the amount of the assessment is conclusive. In determining the total cost to be included in the assessment, the board may also include estimated costs of necessary legal services, projected utility rate increases, and the costs to the county of administering and collecting the assessment.
Procedure. The county may approve the levy of street light assessments under this section upon petition of at least two-thirds of the owners of the lots within the subdivision. The request or petition shall include an estimate from the appropriate utility of the charge for providing street lights and street lighting within the subdivision for one year. Upon approval of the petition, the petitioning owner or owners shall pay to the tax collector the total estimated assessment amount for the ensuing year as determined by the county. This payment shall be set aside by the county tax office in escrow as security for payment of the assessments.
Collection and Administration. The county shall levy the street light assessments on an annual basis and shall pay the costs of providing street lights and street lighting to the appropriate utility on a periodic basis. The assessment amount shall be adjusted on an annual basis in order to maintain in the escrow account an amount equal to the estimated cost of providing street lighting plus related expenses for the ensuing year.

History. 1989 (Reg. Sess., 1990), c. 923, s. 2.

§§ 153A-207 through 153A-210.

Reserved for future codification purposes.

Article 9A. Special Assessments for Critical Infrastructure Needs.

(Article has a delayed expiration date — see note)

§ 153A-210.1. (Article has a delayed expiration date — see note) Purpose; sunset.

Purpose. — This Article enables counties that face increased demands for infrastructure improvements as a result of rapid growth and development to impose special assessments as provided in this Article on benefited property and to use the resulting revenues as provided in this Article. This Article supplements the authority counties have in Article 9 of this Chapter. The provisions of Article 9 of this Chapter apply to this Article, to the extent they do not conflict with this Article.
(a1) Purpose of Dam Repair. — The General Assembly finds that dam repair is a public purpose promoting flood control and public safety.
Sunset. — This Article expires July 1, 2025, for projects that have not been approved under a final assessment resolution. For projects authorized in G.S. 153A-210.2(a1) , this Article expires July 1, 2022. 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. 2; 2013-371, ss. 1(a), 3; 2014-89, ss. 1, 2; 2015-121, s. 1; 2017-40, s. 1; 2019-151, s. 15; 2019-190, s. 1; 2019-215, s. 3.

Article Has a Delayed Expiration Date.

For expiration of Article 9A, see G.S. 153A-210.1(b) .

Editor’s Note.

Session Laws 2015-121, s. 5, made the amendment to this section by Session Laws 2015-121, s. 1, applicable to assessments made on or after July 1, 2015.

Session Laws 2019-190, s. 3, as amended by Session Laws 2019-151, s. 15, made the amendment to subsection (b) as amended by Session Laws 2019-190, s. 1, effective July 1, 2019.

Effect of Amendments.

Session Laws 2014-89, ss. 1, 2, effective July 30, 2014, added subsection (a1), and added the second sentence in subsection (b).

Session Laws 2015-121, s. 1, 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. 1, effective June 21, 2017, in subsection (a), substituted “impose” for “issue revenue bonds payable from,” substituted “as provided in” for “imposed under,” 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, which formerly read: “The expiration does not affect the validity of assessments imposed or bonds issued or authorized under the provisions of this Article prior to the effective date of the expiration.”

Session Laws 2019-190, s. 1, substituted “2022” for “2019” at the end of the second sentence in subsection (b). For effective date, see editor’s note.

Session Laws 2019-215, s. 3, effective September 4, 2019, substituted “2025” for “2020” in the first sentence in subsection (b).

§ 153A-210.2. (Article has a delayed expiration date — see note) Assessments.

Projects. — The board of commissioners of a county may make special assessments as provided in this Article against benefited property within the county 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. (a1) Dam Repair Project. — The board of commissioners of a county may make special assessments as provided in this Article against property that is contiguous to a lake, and benefits from access to the same lake, for the purpose of repairing the dam of that lake. The provisions of this subsection only apply to the following:
1. A privately owned dam formerly used for textile mill purposes, forming a lake between 225 and 325 acres in area.
2. A privately owned dam formerly used for recreational and flood control purposes, forming a lake between 1,100 and 1,300 acres. The authority provided in this subdivision applies only if all of the following conditions are met:
  1. The board of county commissioners directs the county board of elections to conduct an advisory referendum on the question of whether to make the special assessment authorized in this subdivision.
  2. The election is held in accordance with the procedures of G.S. 163-287 , and the form of the question to be presented on the ballot concerning the special assessment authorized by this subdivision is as follows:
    Click to view
    
    Special assessment for repairing a dam formerly used for recreational and flood control purposes and forming a lake between 1,100 and 1,300 acres.”
  3. A majority of those voting in the referendum vote for the special assessment authorized in this subdivision.
  4. The board of county commissioners, by resolution and after 10 days’ public notice, makes the special assessment authorized in this subdivision.
Costs. — The board of commissioners 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. 153A-193 , 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.
Method. — The board of commissioners must establish an assessment method that will, in the board’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. 153A-186 , the board may select any other method designed to allocate the costs in accordance with benefits conferred. In doing so, the board 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.

“• FOR • AGAINST

History. 2008-165, s. 2; 2008-187, s. 47.5(a); 2009-525, s. 1(a); 2013-371, ss. 1(b), 3; 2014-89, s. 3; 2017-40, s. 1; 2018-146, s. 6.1; 2019-190, s. 2.

Article Has a Delayed Expiration Date.

For expiration of Article 9A, see G.S. 153A-210.1(b) .

Editor’s Note.

Session Laws 2018-146, s. 6.1, provides: “Consistent with this act, the Revisor is authorized to change all references to the Bipartisan State Board of Elections and Ethics Enforcement to instead be references to the State Board of Elections, State Ethics Commission, or Secretary of State, as appropriate. The Revisor may modify statutory citations throughout the General Statutes, as appropriate, and may modify any references to statutory divisions, such as ‘Chapter,’ ‘Subchapter,’ ‘Article,’ ‘Part,’ ‘section,’ and ‘subsection’; adjust the order of lists of multiple statutes to maintain statutory order; correct terms and conform names and titles changed by this act; eliminate duplicative references to the State Boards that result from the changes authorized by this section; and make conforming changes to catch lines and references to catch lines. The Revisor may also adjust subject and verb agreement and the placement of conjunctions. The Revisor shall consult with the Bipartisan State Board of Elections and Ethics Enforcement, the State Board of Elections, the State Ethics Commission, and the Secretary of State, as appropriate, on this recodification.” Pursuant to that authority, “G.S. 163-287” was substituted for “G.S. 163A-1592” in sub-subdivision (a1)(2)b.

Effect of Amendments.

Session Laws 2008-187, s. 47.5(a), effective August 7, 2008. rewrote the last sentence in (b).

Session Laws 2009-525, s. 1(a), effective August 26, 2009, rewrote subsection (a).

Session Laws 2014-89, s. 3, effective July 30, 2014, added subsection (a1).

Session Laws 2017-40, s. 1, effective June 21, 2017, in subsection (a), substituted “assisting in arranging for payment of the capital costs” for “financing the capital costs,” inserted clause (i) and (ii) designations, and 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 and added “and expenses for the administration of the assessments” at the end of the second sentence; in subsection (c), substituted “will, in the board’s judgment” for “will most” in the first sentence, inserted “portion of the ” and “to be funded from assessments.”

Session Laws 2019-190, s. 2, effective August 1, 2019, in subsection (a1), redesignated the existing provisions as subsection (a1) and subdivision (a1)(1); and added subdivision (a1)(2).

§ 153A-210.3. (Article has a delayed expiration date — see note) Petition required.

Petition. — The board of commissioners 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.
  (a1) Preliminary Assessment Resolution. — Upon the receipt of a petition as provided for under subsection (a) of this section, the board of commissioners 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.
  (a2) Hearing on Preliminary Assessment Resolution; Assessment Resolution. — At the public hearing, the board of commissioners 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 board 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.
Petition Withdrawn. — The board of commissioners 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 board 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 board may not adopt a final assessment resolution if it receives a timely notice of petition withdrawal.
Validity of Assessment. — No right of action or defense asserting the invalidity of an assessment on grounds that the county 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. 2; 2013-371, ss. 1(c), 3; 2017-40, s. 1.

Article Has a Delayed Expiration Date.

For expiration of Article 9A, see G.S. 153A-210.1(b) .

Editor’s Note.

Session Laws 2008-165, s. 4, is a severability clause.

Session Laws 2008-165, s. 5, as amended by Session Laws 2013-371, s. 3, provides: “This act is effective when it becomes law [August 3, 2008].”

Effect of Amendments.

Session Laws 2017-40, s. 1, effective June 21, 2017, added subsections (a1) and (a2).

§ 153A-210.4. (Article has a delayed expiration date — see note) Financing a project for which an assessment is imposed.

Funding Sources. — In addition to funding from sources otherwise authorized for use by a county in connection with a project, a board of commissioners 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 of the 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. 153A-210.6 .
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.
Assessments Pledged. — An assessment imposed under this Article may be pledged to secure revenue bonds under G.S. 153A-210.6 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 board of commissioners must covenant to enforce the payment of the assessments.
Reimbursement From Assessments. — If a county contracts with a private party to construct a project on behalf of the county as provided in G.S. 153A-210.7 , the board of commissioners 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 county. The board of commissioners shall not be obligated to reimburse a private party any amount in excess of assessment revenues actually collected less the county’s related administrative costs.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. 153A-210.5 . 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.
Performance Bond. — A subdivision control ordinance adopted by a county under G.S. 153A-331 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.

History. 2008-165, s. 2; 2009-525, s. 1(b); 2013-371, s. 3; 2017-40, s. 1.

Article Has a Delayed Expiration Date.

For expiration of Article 9A, see G.S. 153A-210.1(b) .

Editor’s Note.

Session Laws 2008-165, s. 4, is a severability clause.

Session Laws 2008-165, s. 5, as amended by Session Laws 2013-371, s. 3, provides: “This act is effective when it becomes law [August 3, 2008].”

Effect of Amendments.

Session Laws 2009-525, s. 1(b), effective August 26, 2009, rewrote the section.

Session Laws 2017-40, s. 1, effective June 21, 2017, rewrote subsection (a), added subdivision (a)(5); and added subsections (c) and (d).

§ 153A-210.5. (Article has a delayed expiration date — see note) Payment of assessments by installments.

An assessment imposed under this Article is payable in annual installments. The board of commissioners 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.
The board of commissioners may provide for the abeyance of assessments as authorized in Article 9 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. 2; 2013-371, s. 3; 2015-121, s. 3; 2017-40, s. 1.

Article Has a Delayed Expiration Date.

For expiration of Article 9A, see G.S. 153A-210.1(b) .

Editor’s Note.

Session Laws 2008-165, s. 4, is a severability clause.

Session Laws 2008-165, s. 5, as amended by Session Laws 2013-371, s. 3, provides: “This act is effective when it becomes law [August 3, 2008].”

Effect of Amendments.

Session Laws 2015-121, s. 3, 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. 1, effective June 21, 2017, redesignated the existing language as subsection (a) and added subsection (b).

§ 153A-210.6. (Article has a delayed expiration date — see note) Revenue bonds.

Authorization. — A board of commissioners 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.
Modifications. — This Article specifically modifies the authority of a county 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. 2; 2013-371, s. 3.

Article Has a Delayed Expiration Date.

For expiration of Article 9A, see G.S. 153A-210.1(b) .

Session Laws 2008-165, s. 5, as amended by Session Laws 2013-371, s. 3, provides: “This act is effective when it becomes law [August 3, 2008].”

§ 153A-210.7. (Article has a delayed expiration date — see note) Project implementation.

A county 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 county 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 county or any trustee or fiduciary responsible for disbursing funds shall obtain certification acceptable to the county in the amount due for work done or materials supplied for which payment will be paid from such disbursement. If the county 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 county, 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. 1(c); 2013-371, s. 3; 2017-40, s. 1.

Article Has a Delayed Expiration Date.

For expiration of Article 9A, see G.S. 153A-210.1(b) .

Session Laws 2008-165, s. 5, as amended by Session Laws 2013-371, s. 3, provides: “This act is effective when it becomes law [August 3, 2008].”

Effect of Amendments.

Session Laws 2017-40, s. 1, effective June 21, 2017, substituted “funded” for “financed” in the first sentence; inserted the present second sentence; and inserted “excluding assessments imposed pursuant to this Article” in the present third sentence.

Article 10. Law Enforcement and Confinement Facilities.

Part 1. Law Enforcement.

§ 153A-211. Training and development programs for law enforcement.

A county may plan and execute training and development programs for law-enforcement agencies, and for that purpose may:

Contract with other counties, cities, and the State and federal governments and their agencies;
Accept, receive, and disburse funds, grants, and services;
Pursuant to the procedures and provisions of Chapter 160A, Article 20, Part 1, create joint agencies to act for and on behalf of the participating counties and cities;
Apply for, receive, administer, and expend federal grant funds;
Appropriate funds not otherwise limited as to use by law.

History. 1969, c. 1145, s. 2; 1973, c. 822, s. 1.

Local Modification.

Onslow: 1985 (Reg. Sess., 1986), c. 895.

Cross References.

As to disposition of retired service animals, see G.S. 20-187.4 .

§ 153A-212. Cooperation in law-enforcement matters.

A county may cooperate with the State and other local governments in law-enforcement matters, as permitted by G.S. 160A-283 (joint auxiliary police), by G.S. 160A-288 (emergency aid), G.S. 160A-288 .1 (assistance by State law-enforcement officers), and by Chapter 160A, Article 20, Part 1.

History. 1973, c. 822, s. 1; 1979, c. 639, s. 2.

§ 153A-212.1. 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 county 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(b); 2000-67, s. 15.4(e); 2001-424, s. 22.11(e).

§ 153A-212.2. Neighborhood crime watch programs.

A county may establish neighborhood crime watch programs within the county 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. 1.

§§ 153A-212.3, 153A-212.4.

Reserved for future codification purposes.

§ 153A-212.5.

Expired pursuant to Session Laws 2018-113, s. 15.1(c), effective October 1, 2018.

History. 2018-113, s. 15.1(a).

Editor’s Note.

Former G.S. 153A-212.5 , enacted by Session Laws 2018-113, s. 15.1(a), pertained to mutual aid assistance by out-of-state law enforcement officers for international equestrian event. Prior to its expiration, the section read:

“(a) Any law enforcement agency may request and enter into intergovernmental law enforcement mutual aid agreements with out-of-state law enforcement agencies or out-of-state law enforcement officers to aid in enforcing the laws of North Carolina within the jurisdiction of the requesting law enforcement agency for maintaining security and safety for an international equestrian event.

“(b) Any intergovernmental law enforcement mutual aid agreement entered into under this section shall be in writing and may be comprised of any of the following:

“(b)(1) Allowing out-of-state law enforcement officers to work temporarily with officers of the requesting law enforcement agency, including in an undercover capacity.

“(b)(2) Furnishing, lending, or exchanging supplies, equipment, facilities, personnel, and services as may be needed.

“(b)(3) Reciprocal law enforcement mutual aid and assistance between law enforcement agencies.

“(c) Any intergovernmental law enforcement mutual aid agreement entered into under this section shall address all of the following:

“(c)(1) Standards of conduct for the out-of-state law enforcement officers, including the requesting law enforcement agencies’ policies regarding the use of force.

“(c)(2) Training requirements, as prescribed by the requesting law enforcement agency.

“(c)(3) Reimbursement of costs and expenses for supplies, equipment, facilities, personnel, services, and similar items if furnished, lent, or exchanged as part of the intergovernmental law enforcement mutual aid agreement.

“(c)(4) Protocols for processing claims made against or by the out-of-state law enforcement officer.

“(c)(5) Approval of the governing body, if the law enforcement agency is a sheriff or municipal police force.

“(d) While working with the requesting law enforcement agency under the authority of this section, an out-of-state law enforcement 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 law enforcement agency. While on duty with the requesting law enforcement agency, the out-of-state law enforcement officer shall be subject to the lawful operational commands of the requesting law enforcement agency.

“(e) Notwithstanding the provisions of Chapter 17C and Chapter 17E of the General Statutes, out-of-state law enforcement officers certified and sworn in the officers’ home jurisdiction and subject to the provisions of an intergovernmental law enforcement mutual aid agreement under this section shall be deemed to have met the certification requirements of this State for the purposes of being sworn as a law enforcement officer with the requesting law enforcement agency.

“(f) Notwithstanding the provisions of G.S. 128-1 and G.S. 128-1 .1(c1), out-of-state law enforcement officers shall be authorized to hold dual offices when one of the appointive offices held is that of a out-of-state law enforcement officer and the other appointive office is that of a law enforcement officer for a law enforcement agency authorized to enter into an intergovernmental law enforcement mutual aid agreement under this section.

“(g) This section in no way reduces the jurisdiction or authority of State law enforcement officers.

“(h) As used in this section, the following definitions apply:

“(h)(1) Law enforcement agency. — Any of the following:

“(h)(1)a. The Highway Patrol, as established by Article 4 of Chapter 20 of the General Statutes.

“(h)(1)b. A sheriff serving a county sharing a border with another state and which county is the site of an equestrian event with worldwide participants.

“(h)(1)c. A municipal police department for a municipality located, in whole or part, in a county sharing a border with another state and which municipality is the site of an equestrian event with worldwide participants.

“(h)(2) Out-of-state law enforcement agency. — An employer which is a governmental agency outside of this State that meets all of the following criteria:

“(h)(2)a. Is assigned primary duties and responsibilities for prevention and detection of crime or the general enforcement of the criminal laws of the home jurisdiction or serving civil processes.

“(h)(2)b. Has employees who possess the power of arrest by virtue of an oath administered under the authority of the home jurisdiction.

“(h)(3) Out-of-state law enforcement officer. — A full-time paid employee of a governmental employer who meets all of the following criteria:

“(h)(3)a. Is actively serving in a position with assigned primary duties and responsibilities for prevention and detection of crime or the general enforcement of the criminal laws of the officer’s home jurisdiction or serving civil processes.

“(h)(3)b. Possesses the power of arrest by virtue of an oath administered under the authority of the home jurisdiction.

“(h)(3)c. Is in good standing and has no pending civil, criminal, or departmental action that would disqualify the officer if the officer were certified by this State.”

Session Laws 2018-113, s. 15.1(c), provides: “This section is effective when it becomes law and expires October 1, 2018.”

Sessions Laws 2018-113, s. 16(a), is a severability clause.

§§ 153A-213 through 153A-215.

Reserved for future codification purposes.

Part 2. Local Confinement Facilities.

§ 153A-216. Legislative policy.

The policy of the General Assembly with respect to local confinement facilities is:

Local confinement facilities should provide secure custody of persons confined therein in order to protect the community and should be operated so as to protect the health and welfare of prisoners and provide for their humane treatment.
Minimum statewide standards should be provided to guide and assist local governments in planning, constructing, and maintaining confinement facilities and in developing programs that provide for humane treatment of prisoners and contribute to the rehabilitation of offenders.
The State should provide services to local governments to help improve the quality of administration and local confinement facilities. These services should include inspection, consultation, technical assistance, and other appropriate services.
Adequate qualifications and training of the personnel of local confinement facilities are essential to improving the quality of these facilities. The State shall establish entry level employment standards for jailers and supervisory and administrative personnel of local confinement facilities to include training as a condition of employment in a local confinement facility pursuant to the provisions of Article 1 of Chapter 17C and Chapter 17E and the rules promulgated thereunder.

History. 1967, c. 581, s. 2; 1973, c. 822, s. 1; 1983, c. 745, s. 4.

Legal Periodicals.

For note as to sheriff’s liability for prisoner suicide, in light of Helmly v. Bebber, 77 N.C. App. 275, 335 S.E.2d 182 (1985), see 64 N.C.L. Rev. 1520 (1986).

Editor’s Note.

“Article 1 of Chapter 17C” has been substituted for “Chapter 17C” in this section at the direction of the Revisor of Statutes.

CASE NOTES

The enforcement of minimum standards at local jails is a discretionary duty. Reid v. Johnston County, 688 F. Supp. 200, 1988 U.S. Dist. LEXIS 7400 (E.D.N.C. 1988), aff'd, 885 F.2d 129, 1989 U.S. App. LEXIS 9675 (4th Cir. 1989).

State Officials Held Not Vicariously Liable for Conditions at County Jail. —

In an action by inmates of a county jail against state officials of the Department of Human Resources alleging the existence of unconstitutional conditions at the jail, the state officials could not be held vicariously liable under 42 U.S.C.A. § 1983, where plaintiffs did not demonstrate that actions taken by the officials under color of state law in any way caused constitutionally deficient conditions at the county jail. Reid v. Johnston County, 688 F. Supp. 200, 1988 U.S. Dist. LEXIS 7400 (E.D.N.C. 1988), aff'd, 885 F.2d 129, 1989 U.S. App. LEXIS 9675 (4th Cir. 1989).

§ 153A-217. Definitions.

Unless otherwise clearly required by the context, the words and phrases defined in this section have the meanings indicated when used in this Part:

“Commission” means the Social Services Commission.
“Secretary” means the Secretary of Health and Human Services.
“Department” means the Department of Health and Human Services.
“Governing body” means the governing body of a county or city or the policy-making body for a district or regional confinement facility.
“Local confinement facility” includes a county or city jail, a local lockup, a regional or district jail, a juvenile detention facility, a detention facility for adults operated by a local government, and any other facility operated by a local government for confinement of persons awaiting trial or serving sentences except that it shall not include a county satellite jail/work release unit governed by Part 3 of Article 10 of Chapter 153A.
“Prisoner” includes any person, adult or juvenile, confined or detained in a confinement facility.
“Unit,” “unit of local government,” or “local government” means a county or city.

History. 1967, c. 581, s. 2; 1969, c. 981, s. 1; 1973, c. 476, s. 138; c. 822, s. 1; 1987, c. 207, s. 2; 1997-443, s. 11A.118(a); 1998-202, s. 4(cc).

CASE NOTES

Definition of “Local Confinement Facility” Applicable to G.S. 90-95(e)(9). —

Temporary holding cell was considered to be a local confinement facility for purposes of a conviction for possession of a controlled substance on the premises of a local confinement facility under G.S. 90-95(e)(9). State v. Dent, 174 N.C. App. 459, 621 S.E.2d 274, 2005 N.C. App. LEXIS 2491 (2005).

Defendant, who was brought to the sheriff’s department for booking, was clearly on the premises of a local confinement facility. State v. Moncree, 188 N.C. App. 221, 655 S.E.2d 464, 2008 N.C. App. LEXIS 94 (2008).

OPINIONS OF ATTORNEY GENERAL

Although by its terms, the definition of “local confinement facility” in subsection (5) applies only to Chapter 153A, Article 10, Pt. 1, as this definition is the only definition of “local confinement facility” appearing in the General Statutes, it may be assumed that this was the meaning intended by the General Assembly when it adopted G.S. 15A-1352(a). See opinion of Attorney General to Mr. Bruce Colvin, Assistant County Attorney, Forsyth County, 55 N.C. Op. Att'y Gen. 21 (1985).

§ 153A-218. County confinement facilities. [Effective until January 1, 2023]

A county may establish, acquire, erect, repair, maintain, and operate local confinement facilities and may for these purposes appropriate funds not otherwise limited as to use by law. Subject to the holdover provisions in G.S. 7B-2204 , no person under the age of 18 may be held in a county confinement facility unless there is an agreement between the county confinement facility and the Division of Adult Correction and Juvenile Justice allowing the housing of persons under the age of 18 at the facility or a portion of the facility that has been approved as a juvenile detention facility by the Juvenile Justice Section. A juvenile detention facility may be located in the same facility as a county jail provided that the juvenile detention facility meets the requirements of this Article and G.S. 147-33.40.

History. 1868, c. 20, s. 8; Code, s. 707; Rev., s. 1318; 1915, c. 140; C.S., s. 1297; 1973, c. 822, s. 1; 1998-202, s. 4(dd); 2020-83, s. 8(n).

Section Set Out Twice.

The section above is effective until January 1, 2023. For the section as amended January 1, 2023, see the following section, also numbered G.S. 153A-218 .

Cross References.

As to exception for contracts for the purchase of food and supplies for county detention facilities by the sheriffs of certain counties, see G.S. 143-131.1 .

Editor’s Note.

The section of Chapter 147 referred to above was repealed by Session Laws 2000-137, s. 1(a). As to juvenile facilities, see now G.S. 143B-815 et seq.

Session Laws 2020-83, s. 8(p), made the amendment of this section by Session Laws 2020-83, s. 8(n), effective August 1, 2020, and applicable to offenses committed, sentences imposed, and any other orders of imprisonment issued on or after that date.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(pppp), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2020-83, s. 8(n), inserted the second sentence. For effective date and applicability, see editor’s note.

Session Laws 2021-180, s. 19C.9(pppp), in the second sentence, deleted “Adult Correction and” following “confinement facility and the Division of”, and substituted “the Division of Juvenile Justice” for “the Juvenile Justice Section” at the end of the sentence. For effective date and applicability, see editor's note.

Legal Periodicals.

For note, “North Carolina County Jail Inmates’ Right of Access to Courts,” see 66 N.C.L. Rev. 583 (1988).

CASE NOTES

Editor’s Note. —

Most of the cases cited below were decided under corresponding sections of former law.

Requirements for Persons Confined in Prison. —

The least that is required is that persons confined in any public prison shall have a clean place, comfortable bedding, wholesome food and drink, and necessary attendance. Lewis v. City of Raleigh, 77 N.C. 229 , 1877 N.C. LEXIS 63 (1877), limited, State ex rel. Hayes v. Billings, 240 N.C. 78 , 81 S.E.2d 150, 1954 N.C. LEXIS 643 (1954).

County and Board of Commissioners were liable under 42 U.S.C. § 1983 for past and continuing deprivations of constitutional rights of county prisoners and were subject to equitable remedies against them. Parnell v. Waldrep, 538 F. Supp. 1203, 1982 U.S. Dist. LEXIS 12427 (W.D.N.C. 1982).

County Responsible for Its Own Confinement Facilities. —

This section makes clear that the primary responsibility for county confinement facilities rests upon the county itself. Reid v. Johnston County, 688 F. Supp. 200, 1988 U.S. Dist. LEXIS 7400 (E.D.N.C. 1988), aff'd, 885 F.2d 129, 1989 U.S. App. LEXIS 9675 (4th Cir. 1989).

For case holding that an action could not be maintained against a county for damages sustained by a person while imprisoned in the county jail by reason of the failure of the commissioners to provide adequate means for his health and protection, see Manuel v. Board of Comm'rs of Cumberland County, 98 N.C. 9 , 3 S.E. 829, 1887 N.C. LEXIS 210 (1887).

State Officials Held Not Liable for Conditions of a County Jail. —

Liability for Failure to Make Regulations for Safety of Prisoners. —

The duty to make proper rules and regulations imposes a discretionary duty on the board of commissioners exercisable only in its corporate capacity, and the commissioners are not liable as individuals for failure to make regulations for the safety of prisoners unless they corruptly or with malice fail to make proper rules and regulations. Moye v. McLawhorn, 208 N.C. 812 , 182 S.E. 493, 1935 N.C. LEXIS 137 (1935).

Liability for Nuisance in Erection and Maintenance of Jail. —

A county is not liable for a nuisance to a citizen in the erection of a jail in the immediate vicinity of his residence, nor for suffering it to become so filthy and disorderly as to be a nuisance to him and his family. The doctrine is that while such corporate agencies must provide the means and employ the men to perform such duties, they are not personally and by their own labor to perform such menial services; the default to make them liable must be in neglecting to exercise their authority in the use of labor and money for that purpose, and so it must be charged to make a cause of action against them. Threadgill v. Board of Comm'rs, 99 N.C. 352 , 6 S.E. 189, 1888 N.C. LEXIS 301 (1888).

§ 153A-218. County confinement facilities. [Effective January 1, 2023]

A county may establish, acquire, erect, repair, maintain, and operate local confinement facilities and may for these purposes appropriate funds not otherwise limited as to use by law. Subject to the holdover provisions in G.S. 7B-2204 , no person under the age of 18 may be held in a county confinement facility unless there is an agreement between the county confinement facility and the Division of Juvenile Justice allowing the housing of persons under the age of 18 at the facility or a portion of the facility that has been approved as a juvenile detention facility by the Division of Juvenile Justice. A juvenile detention facility may be located in the same facility as a county jail provided that the juvenile detention facility meets the requirements of this Article and G.S. 147-33.40.

History. 1868, c. 20, s. 8; Code, s. 707; Rev., s. 1318; 1915, c. 140; C.S., s. 1297; 1973, c. 822, s. 1; 1998-202, s. 4(dd); 2020-83, s. 8(n); 2021-180, s. 19C.9(pppp).

Section Set Out Twice.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the preceding section, also numbered G.S. 153A-218 .

Cross References.

As to exception for contracts for the purchase of food and supplies for county detention facilities by the sheriffs of certain counties, see G.S. 143-131.1 .

Editor’s Note.

The section of Chapter 147 referred to above was repealed by Session Laws 2000-137, s. 1(a). As to juvenile facilities, see now G.S. 143B-815 et seq.

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2020-83, s. 8(n), inserted the second sentence. For effective date and applicability, see editor’s note.

Legal Periodicals.

For note, “North Carolina County Jail Inmates’ Right of Access to Courts,” see 66 N.C.L. Rev. 583 (1988).

CASE NOTES

Editor’s Note. —

Most of the cases cited below were decided under corresponding sections of former law.

Requirements for Persons Confined in Prison. —

County Responsible for Its Own Confinement Facilities. —

State Officials Held Not Liable for Conditions of a County Jail. —

Liability for Failure to Make Regulations for Safety of Prisoners. —

Liability for Nuisance in Erection and Maintenance of Jail. —

§ 153A-219. District confinement facilities.

Two or more units of local government may enter into and carry out an agreement to establish, finance, and operate a district confinement facility. The units may construct such a facility or may designate an existing facility as a district confinement facility. In addition, two or more units of local government may enter into and carry out agreements under which one unit may use the local confinement facility owned and operated by another. In exercising the powers granted by this section, the units shall proceed according to the procedures and provisions of Chapter 160A, Article 20, Part 1.
If a district confinement facility is established, the units involved shall provide for a jail administrator for the facility. The administrator need not be the sheriff or any other official of a participating unit. The administrator and the other custodial personnel of a district confinement facility have the authority of law-enforcement officers for the purposes of receiving, maintaining custody of, and transporting prisoners.
If a district confinement facility is established, or if one unit contracts to use the local confinement facility of another, the law-enforcement officers of the contracting units and the custodial personnel of the facility may transport prisoners to and from the facility.
The Department shall provide technical and other assistance to units wishing to exercise any of the powers granted by this section.

History. 1933, c. 201; 1967, c. 581, s. 2; 1969, c. 743; 1971, c. 341, s. 1; 1973, c. 822, s. 1.

Local Modification.

Camden, Pasquotank and Perquimans: 1991, c. 371; Albemarle District Jail in Elizabeth City: 1991, c. 371.

§ 153A-220. Jail and detention services.

The Commission has policy responsibility for providing and coordinating State services to local government with respect to local confinement facilities. The Department shall:

Consult with and provide technical assistance to units of local government with respect to local confinement facilities.
Develop minimum standards for the construction and operation of local confinement facilities.
Visit and inspect local confinement facilities; advise the sheriff, jailer, governing board, and other appropriate officials as to deficiencies and recommend improvements; and submit written reports on the inspections to appropriate local officials.
Review and approve plans for the construction and major modification of local confinement facilities.
Repealed by Session Laws 1983, c. 745, s. 5.
Perform any other duties that may be necessary to carry out the State’s responsibilities concerning local confinement facilities.

History. 1967, c. 581, s. 2; 1973, c. 476, s. 138; c. 822, s. 1; 1983, c. 745, s. 5.

CASE NOTES

Negligence Claim Against State Jail Inspection Agency Not Barred By Public Duty Doctrine. —

Public duty doctrine did not apply to bar a negligence suit brought by multiple plaintiffs against the North Carolina Department of Health and Human Services (DHHS), after four inmates were killed and one inmate was seriously injured as a result of a jailhouse fire. Plaintiffs’ complaint, which alleged that the inspector for DHHS was negligent in his inspection of the jail and that DHHS failed to properly train the inspector to perform his duties as an inspector of county jails, was not barred under the public duty doctrine because DHHS’ duty to inspect was for the purpose of protecting the inmates and not for protection of the public generally or, even if the public duty doctrine did apply, plaintiffs fell within the special relationship exception to that doctrine of custodian/prisoner, therefore, the motion to dismiss filed by DHHS was properly denied. Multiple Claimants v. N.C. HHS, Div. of Facility & Detention Servs., 176 N.C. App. 278, 626 S.E.2d 666, 2006 N.C. App. LEXIS 530 (2006), modified and aff’d, 361 N.C. 372 , 646 S.E.2d 356 (2007) as to special relationships.

Special relationship exception to the public duty doctrine applied to the inmates’ negligence claims arising from a fire in a county jail where the relevant statutes and regulations, G.S. 153A-220(3) and G.S. 153A-222 , 10A N.C. Admin. Code 14J.1302(c), and 14J.1303 (June 2006), showed that the North Carolina Department of Health and Human Services had a duty to inspect local jails to ensure that they met the minimum fire safety standards. Multiple Claimants v. N.C. HHS, Div. of Facility Servs., 361 N.C. 372 , 646 S.E.2d 356, 2007 N.C. LEXIS 599 (2007).

§ 153A-221. Minimum standards. [Effective until January 1, 2023]

The Secretary shall develop and publish minimum standards for the operation of local confinement facilities and may from time to time develop and publish amendments to the standards. The standards shall be developed with a view to providing secure custody of prisoners and to protecting their health and welfare and providing for their humane treatment. The standards shall provide for all of the following:
1. Secure and safe physical facilities.
2. Jail design.
3. Adequacy of space per prisoner.
4. Heat, light, and ventilation.
5. Supervision of prisoners.
6. Personal hygiene and comfort of prisoners.
7. Medical care for prisoners, including mental health, behavioral health, intellectual and other developmental disability, and substance abuse services.
8. Sanitation.
9. Food allowances, food preparation, and food handling.
10. Any other provisions that may be necessary for the safekeeping, privacy, care, protection, and welfare of prisoners.
In developing the standards and any amendments thereto, the Secretary shall consult with organizations representing local government and local law enforcement, including the North Carolina Association of County Commissioners, the North Carolina League of Municipalities, the North Carolina Sheriffs’ Association, and the North Carolina Police Executives’ Association. The Secretary shall also consult with interested State departments and agencies, including the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, the Department of Health and Human Services, the Department of Insurance, and the North Carolina Criminal Justice Education and Training Standards Commission, and the North Carolina Sheriffs’ Education and Training Standards Commission.
Before the standards or any amendments thereto may become effective, they must be approved by the Commission and the Governor. Upon becoming effective, they have the force and effect of law.
Notwithstanding any law or rule to the contrary, each dormitory in a county detention facility may house up to 64 inmates as long as the dormitory provides all of the following:
1. A minimum floor space of 70 square feet per inmate, including both the sleeping and dayroom areas.
2. One shower per eight inmates, one toilet per eight inmates, one sink with a security mirror per eight inmates, and one water fountain.
3. A telephone jack or other telephone arrangement provided within the dormitory.
4. Space designed to allow a variety of activities.
5. Sufficient seating and tables for all inmates.
6. A way for officers to observe the entire area from the entrance.
A local confinement facility shall be subject to the requirements of Part 2B of Article 10 of Chapter 153A of the General Statutes.

History. 1967, c. 581, s. 2; 1973, c. 476, ss. 128, 133, 138; c. 822, s. 1; 1983, c. 745, s. 6; c. 768, s. 20; 1991, c. 237, s. 1; 1997-443, s. 11A.118(a); 2008-194, s. 10(a), (b); 2011-145, s. 19.1(h); 2011-324, s. 1; 2014-22, s. 1; 2017-186, s. 2(eeeeeeeee); 2019-76, s. 30; 2021-143, s. 3(b).

Section Set Out Twice.

The section above is effective until January 1, 2023. For the section as amended January 1, 2023, see the following section, also numbered G.S. 153A-221 .

Cross References.

As to detention of juveniles in holdover facilities meeting the minimum standards of this section where no juvenile detention home is available, see G.S. 7B-505 , 7B-1905.

As to exception for contracts for the purchase of food and supplies for county detention facilities by the sheriffs of certain counties, see G.S. 143-131.1 .

Use of Closed Facilites.

Session Laws 2017-57, s. 16C.1(a), (b), provides: “(a) In conjunction with the closing of prison facilities, youth detention centers, and youth development centers, the Department of Public Safety shall consult with the county or municipality in which the facility is located, with elected State and local officials, and with State and federal agencies about the possibility of converting that facility to other use. The Department may also consult with any private for-profit or nonprofit firm about the possibility of converting the facility to other use. In developing a proposal for future use of each facility, the Department shall give priority to converting the facility to other criminal justice use. Consistent with existing law and the future needs of the Department of Public Safety, the State may provide for the transfer or the lease of any of these facilities to counties, municipalities, State agencies, federal agencies, or private firms wishing to convert them to other use. G.S. 146-29.1(f) through (g) shall not apply to a transfer made pursuant to this section. The Department of Public Safety may also consider converting some of the facilities recommended for closing from one security custody level to another, where that conversion would be cost-effective. A prison unit under lease to a county pursuant to the provisions of this section for use as a jail is exempt for the period of the lease from any of the minimum standards adopted by the Secretary of Health and Human Services pursuant to G.S. 153A-221 for the housing of adult prisoners that would subject the unit to greater standards than those required of a unit of the State prison system.

“(b) The Department may convert closed facilities for the following purposes:

“(1) Training needs.

“(2) Behavior modification facilities.

“(3) Transitional housing.

“Sixty days prior to converting facilities to these purposes, the Department shall report to the Joint Legislative Oversight Committee on Justice and Public Safety. The report shall include the justification for the conversion, operational requirements for the facility, and available resources for staffing and operating the facility. If the proposed facility will require additional funding in the future, the report shall provide a five-year projection of those funding needs.”

For prior similar provisions, see Session Laws 2003-284, s. 16.5, Session Laws 2005-276, s. 17.5, Session Laws 2007-323, s. 17.7, Session Laws 2009-451, s. 19.4(a) and (b), Session Laws 2011-145, s. 18.3, Session Laws 2013-360, s. 16A.3, as amended by Session Laws 2014-100, s. 16C.10, and Session Laws 2015-241, s. 16C.3.

Session Laws 2013-360, s. 16A.3, as amended by Session Laws 2014-100, s. 16C.10, provides: “In conjunction with the closing of prison facilities, youth detention centers, and youth development centers, the Department of Public Safety shall consult with the county or municipality in which the facility is located, with the elected State and local officials, and with State and federal agencies about the possibility of converting that facility to other use. The Department may also consult with any private for-profit or nonprofit firm about the possibility of converting the facility to other use. In developing a proposal for future use of each facility, the Department shall give priority to converting the facility to other criminal justice use. Consistent with existing law and the future needs of the Department of Public Safety, the State may provide for the transfer or the lease of any of these facilities to counties, municipalities, State agencies, federal agencies, or private firms wishing to convert them to other use. The Department of Public Safety may also consider converting some of the facilities recommended for closing from one security custody level to another, where that conversion would be cost-effective. A prison unit under lease to a county pursuant to the provisions of this section for use as a jail is exempt for the period of the lease from any of the minimum standards adopted by the Secretary of Health and Human Services pursuant to G.S. 153A-221 for the housing of adult prisoners that would subject the unit to greater standards than those required of a unit of the State prison system.

“In addition, the Department of Public Safety may use available funds to reopen and convert closed facilities for use as treatment and behavior modification facilities for offenders serving a period of confinement in response to violation pursuant to G.S. 15A-1344(d2).”

Editor’s Note.

Session Laws 1999-237, s. 18.11 provides that the Department of Corrections shall consult with State and local government officials and may consult with private for-profit or nonprofit firms regarding the transfer, lease, or conversion to other use of prison facilities closed or consolidated under the Government Performance Audit Committee.

Session Laws 2008-194, s. 10(a), (b), effective August 8, 2008, has been codified as subsection (d) of this section 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 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 2019-76, s. 33, provides: “Parts I and II of this act do not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability.”

Session Laws 2019-76, s. 34, made the amendments by Session Laws 2019-76, s. 30, effective October 1, 2019, and applicable to proceedings commenced or services rendered on or after that date.

Session Laws 2021-143, s. 1, provides: “This act shall be known as the Dignity for Women who are Incarcerated Act.”

Session Laws 2021-143, s. 4, made subsection (e) of this section, as added by Session Laws 2021-143, s. 3(b), effective December 1, 2021, and applicable to individuals in custody on or after that date.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(p), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2011-324, s. 1, effective June 27, 2011, in subsection (d), substituted “64 inmates” for “56 inmates” in the introductory paragraph, and substituted “300,000” for “600,000” in the last paragraph.

Session Laws 2014-22, s. 1, effective June 24, 2014, deleted the former ending undesignated paragraph of subsection (d), which read: “This subsection applies only to those counties that have a population in excess of 300,000, according to the most recent decennial federal census.”

Session Laws 2017-186, s. 2(eeeeeeeee), effective December 1, 2017, inserted “and Juvenile Justice” in the last sentence of subsection (b).

Session Laws 2019-76, s. 30, effective October 1, 2019, inserted “all of the following” at the end of subsection (a); substituted “behavioral health, intellectual and other developmental disability” for “mental retardation” in subdivision (a)(7); and made stylistic changes. For effective date and applicability, see editor’s note.

Session Laws 2021-143, s. 3(b), added subsection (e). For effective date and applicability, see editor’s note.

Session Laws 2021-180, s. 19C.9(p), substituted “Division of Prisons of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” in the second sentence of subsection (b). For effective date and applicability, see editor's note.

Legal Periodicals.

For note, “North Carolina County Jail Inmates’ Right of Access to Courts,” see 66 N.C.L. Rev. 583 (1988).

CASE NOTES

Negligence Claim Against State Jail Inspection Agency Not Barred By Public Duty Doctrine. —

Prison Health Clinician Was Agent of Sheriff. —

Because a sheriff had a nondelegable duty to provide medical care to inmates, defendant, who was employed by prison health services as a mental health clinician, was an agent of the sheriff as a matter of law; in a prosecution for sexual activity by a custodian, the trial court did not err in barring in limine the introduction of a contract, which according to defendant showed that he was an independent contractor and not an agent or employee of the sheriff’s office, because as a matter of law defendant was acting as an agent of the sheriff when the crimes were allegedly committed. State v. Wilson, 183 N.C. App. 100, 643 S.E.2d 620, 2007 N.C. App. LEXIS 844 (2007), modified, aff'd, 362 N.C. 162 , 655 S.E.2d 359, 2008 N.C. LEXIS 32 (2008).

§ 153A-221. Minimum standards. [Effective January 1, 2023]

The Secretary shall develop and publish minimum standards for the operation of local confinement facilities and may from time to time develop and publish amendments to the standards. The standards shall be developed with a view to providing secure custody of prisoners and to protecting their health and welfare and providing for their humane treatment. The standards shall provide for all of the following:
1. Secure and safe physical facilities.
2. Jail design.
3. Adequacy of space per prisoner.
4. Heat, light, and ventilation.
5. Supervision of prisoners.
6. Personal hygiene and comfort of prisoners.
7. Medical care for prisoners, including mental health, behavioral health, intellectual and other developmental disability, and substance abuse services.
8. Sanitation.
9. Food allowances, food preparation, and food handling.
10. Any other provisions that may be necessary for the safekeeping, privacy, care, protection, and welfare of prisoners.
In developing the standards and any amendments thereto, the Secretary shall consult with organizations representing local government and local law enforcement, including the North Carolina Association of County Commissioners, the North Carolina League of Municipalities, the North Carolina Sheriffs’ Association, and the North Carolina Police Executives’ Association. The Secretary shall also consult with interested State departments and agencies, including the Division of Prisons of the Department of Adult Correction, the Department of Health and Human Services, the Department of Insurance, and the North Carolina Criminal Justice Education and Training Standards Commission, and the North Carolina Sheriffs’ Education and Training Standards Commission.
Before the standards or any amendments thereto may become effective, they must be approved by the Commission and the Governor. Upon becoming effective, they have the force and effect of law.
Notwithstanding any law or rule to the contrary, each dormitory in a county detention facility may house up to 64 inmates as long as the dormitory provides all of the following:
1. A minimum floor space of 70 square feet per inmate, including both the sleeping and dayroom areas.
2. One shower per eight inmates, one toilet per eight inmates, one sink with a security mirror per eight inmates, and one water fountain.
3. A telephone jack or other telephone arrangement provided within the dormitory.
4. Space designed to allow a variety of activities.
5. Sufficient seating and tables for all inmates.
6. A way for officers to observe the entire area from the entrance.
A local confinement facility shall be subject to the requirements of Part 2B of Article 10 of Chapter 153A of the General Statutes.

Section Set Out Twice.

The section above is effective until January 1, 2023. For the section effective until amended January 1, 2023, see the preceding section, also numbered G.S. 153A-221 .

Cross References.

As to detention of juveniles in holdover facilities meeting the minimum standards of this section where no juvenile detention home is available, see G.S. 7B-505 , 7B-1905.

As to exception for contracts for the purchase of food and supplies for county detention facilities by the sheriffs of certain counties, see G.S. 143-131.1 .

Use of Closed Facilites.

“(b) The Department may convert closed facilities for the following purposes:

“(1) Training needs.

“(2) Behavior modification facilities.

“(3) Transitional housing.

Editor’s Note.

Session Laws 2008-194, s. 10(a), (b), effective August 8, 2008, has been codified as subsection (d) of this section 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. 38.5 is a severability clause.

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. 39.6, is a severability clause.

Session Laws 2019-76, s. 34, made the amendments by Session Laws 2019-76, s. 30, effective October 1, 2019, and applicable to proceedings commenced or services rendered on or after that date.

Session Laws 2021-143, s. 1, provides: “This act shall be known as the Dignity for Women who are Incarcerated Act.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2017-186, s. 2(eeeeeeeee), effective December 1, 2017, inserted “and Juvenile Justice” in the last sentence of subsection (b).

Session Laws 2021-143, s. 3(b), added subsection (e). For effective date and applicability, see editor’s note.

Legal Periodicals.

For note, “North Carolina County Jail Inmates’ Right of Access to Courts,” see 66 N.C.L. Rev. 583 (1988).

CASE NOTES

Negligence Claim Against State Jail Inspection Agency Not Barred By Public Duty Doctrine. —

Prison Health Clinician Was Agent of Sheriff. —

§ 153A-221.1. Standards and inspections. [Effective until January 1, 2023]

The legal responsibility of the Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety for State services to county juvenile detention homes under this Article is hereby confirmed and shall include the following: development of State standards under the prescribed procedures; inspection; consultation; technical assistance; and training.

The Secretary of Health and Human Services, in consultation with the Secretary of Public Safety, shall also develop standards under which a local jail may be approved as a holdover facility for not more than five calendar days pending placement in a juvenile detention home which meets State standards, providing the local jail is so arranged that any child placed in the holdover facility cannot converse with, see, or be seen by the adult population of the jail while in the holdover facility. The personnel responsible for the administration of a jail with an approved holdover facility shall provide close supervision of any child placed in the holdover facility for the protection of the child.

History. 1973, c. 1230, s. 2; c. 1262, s. 10; 1975, c. 426, s. 2; 1983, c. 768, s. 21; 1997-443, s. 11A.118(a); 1998-202, s. 13(nn); 1999-423, s. 12; 2000-137, s. 4(hh); 2012-172, s. 2; 2013-360, s. 16D.7(c); 2017-186, s. 2(fffffffff).

Section Set Out Twice.

The section above is effective until January 1, 2023. For the section as amended January 1, 2023, see the following section, also numbered G.S. 153A-221.1 .

Cross References.

As to exception for contracts for the purchase of food and supplies for county detention facilities by the sheriffs of certain counties, see G.S. 143-131.1 .

Editor's Note.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(z), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2017-186, s. 2(fffffffff), effective December 1, 2017, substituted “Juvenile Justice Section of the Division of Adult Correction” for “Division of” in the first sentence of the section.

Session Laws 2021-180, s. 19C.9(z), substituted “Division of Juvenile Justice” for “Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice” in the first sentence of the first paragraph. For effective date and applicability, see editor's note.

§ 153A-221.1. Standards and inspections. [Effective January 1, 2023]

The legal responsibility of the Division of Juvenile Justice of the Department of Public Safety for State services to county juvenile detention homes under this Article is hereby confirmed and shall include the following: development of State standards under the prescribed procedures; inspection; consultation; technical assistance; and training.

Section Set Out Twice.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the preceding section, also numbered G.S. 153A-221.1 .

Cross References.

As to exception for contracts for the purchase of food and supplies for county detention facilities by the sheriffs of certain counties, see G.S. 143-131.1 .

Editor's Note.

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

§ 153A-222. Inspections of local confinement facilities.

Department personnel shall visit and inspect each local confinement facility at least semiannually. The purpose of the inspections is to investigate the conditions of confinement, the treatment of prisoners, the maintenance of entry level employment standards for jailers and supervisory and administrative personnel of local confinement facilities as provided for in G.S. 153A-216(4) , and to determine whether the facilities meet the minimum standards published pursuant to G.S. 153A-221 . The inspector shall make a written report of each inspection and submit it within 30 days after the day the inspection is completed to the governing body and other local officials responsible for the facility. The report shall specify each way in which the facility does not meet the minimum standards. The governing body shall consider the report at its first regular meeting after receipt of the report and shall promptly initiate any action necessary to bring the facility into conformity with the standards. Notwithstanding the provisions of G.S. 8-53 or any other provision of law relating to the confidentiality of communications between physician and patient, the representatives of the Department of Health and Human Services who make these inspections may review any writing or other record in any recording medium which pertains to the admission, discharge, medication, treatment, medical condition, or history of persons who are or have been inmates of the facility being inspected. Physicians, psychologists, psychiatrists, nurses, and anyone else involved in giving treatment at or through a facility who may be interviewed by representatives of the Department may disclose to these representatives information related to an inquiry, notwithstanding the existence of the physician-patient privilege in G.S. 8-53 or any other rule of law; provided the patient, resident or client has not made written objection to such disclosure. The facility, its employees, and any person interviewed during these inspections shall be immune from liability for damages resulting from the disclosure of any information to the Department. Any confidential or privileged information received from review of records or interviews shall be kept confidential by the Department and not disclosed without written authorization of the inmate or legal representative, or unless disclosure is ordered by a court of competent jurisdiction. The Department shall institute appropriate policies and procedures to ensure that this information shall not be disclosed without authorization or court order. The Department shall not disclose the name of anyone who has furnished information concerning a facility without the consent of that person. Neither the names of persons furnishing information nor any confidential or privileged information obtained from records or interviews shall be considered “public records” within the meaning of G.S. 132-1 . Prior to releasing any information or allowing any inspections referred to in this section the patient, resident or client must be advised in writing that he has the right to object in writing to such release of information or review of his records and that by an objection in writing he may prohibit the inspection or release of his records.

History. 1947, c. 915; 1967, c. 581, s. 2; 1973, c. 822, s. 1; 1981, c. 586, s. 6; 1983, c. 745, s. 7; 1997-443, s. 11A.118(a).

Cross References.

As to detention of juveniles in holdover facilities inspected pursuant to G.S. 131D-11 through 131D-13 and this section where no juvenile detention home is available, see now G.S. 7B-505 , 7B-1905.

CASE NOTES

Negligence Claim Against State Jail Inspection Agency Not Barred By Public Duty Doctrine. —

OPINIONS OF ATTORNEY GENERAL

See opinion of Attorney General to Mr. I.O. Wilkerson, Jr., Director, Division of Facility Services, 51 N.C. Op. Att'y Gen. 17 (1981).

§ 153A-223. Enforcement of minimum standards.

If an inspection conducted pursuant to G.S. 153A-222 discloses that the jailers and supervisory and administrative personnel of a local confinement facility do not meet the entry level employment standards established pursuant to Article 1 of Chapter 17C or Chapter 17E or that a local confinement facility does not meet the minimum standards published pursuant to G.S. 153A-221 and, in addition, if the Secretary determines that conditions in the facility jeopardize the safe custody, safety, health, or welfare of persons confined in the facility, the Secretary may order corrective action or close the facility, as provided in this section:

The Secretary shall give notice of his determination to the governing body and each other local official responsible for the facility. The Secretary shall also send a copy of this notice, along with a copy of the inspector’s report, to the senior resident superior court judge of the superior court district or set of districts as defined in G.S. 7A-41.1 in which the facility is located. Upon receipt of the Secretary’s notice, the governing body shall call a public hearing to consider the report. The hearing shall be held within 20 days after the day the Secretary’s notice is received. The inspector shall appear at this hearing to advise and consult with the governing body concerning any corrective action necessary to bring the facility into conformity with the standards.
The governing body shall, within 30 days after the day the Secretary’s notice is received, request a contested case hearing, initiate appropriate corrective action or close the facility. The corrective action must be completed within a reasonable time.
A contested case hearing, if requested, shall be conducted pursuant to G.S. 150B, Article 3. The issues shall be: (i) whether the facility meets the minimum standards; (ii) whether the conditions in the facility jeopardize the safe custody, safety, health, or welfare of persons confined therein; and (iii) the appropriate corrective action to be taken and a reasonable time to complete that action.
If the governing body does not, within 30 days after the day the Secretary’s notice is received, or within 30 days after service of the final decision if a contested case hearing is held, either initiate corrective action or close the facility, or does not complete the action within a reasonable time, the Secretary may order that the facility be closed.
The governing body may appeal an order of the Secretary or a final decision to the senior resident superior court judge. The governing body shall initiate the appeal by giving by registered mail to the judge and to the Secretary notice of its intention to appeal. The notice must be given within 15 days after the day the Secretary’s order or the final decision is received. If notice is not given within the 15-day period, the right to appeal is terminated.
The senior resident superior court judge shall hear the appeal. He shall cause notice of the date, time, and place of the hearing to be given to each interested party, including the Secretary, the governing body, and each other local official involved. The Office of Administrative Hearings, if a contested case hearing has been held, shall file the official record, as defined in G.S. 150B-37 , with the senior resident superior court judge and shall serve a copy on each person who has been given notice of the hearing. The judge shall conduct the hearing without a jury. He shall consider the official record, if any, and may accept evidence from the Secretary, the governing body, and each other local official which he finds appropriate. The issue before the court shall be whether the facility continues to jeopardize the safe custody, safety, health, or welfare of persons confined therein. The court may affirm, modify, or reverse the Secretary’s order.

History. 1947, c. 915; 1967, c. 581, s. 2; 1973, c. 476, s. 138; c. 822, s. 1; 1981, c. 614, ss. 20, 21; 1983, c. 745, s. 8; 1987, c. 827, s. 1; 1987 (Reg. Sess., 1988), c. 1037, s. 123; 2011-398, s. 55.

Editor’s Note.

“Article 1 of Chapter 17C” has been substituted for “Chapter 17C” in this section at the direction of the Revisor of Statutes.

Effect of Amendments.

Session Laws 2011-398, s. 55, effective January 1, 2012, and applicable to contested cases commenced on or after that date, in subdivision (4), deleted “agency” preceding “decision”; in subdivision (5), inserted “or a final decision” in the first sentence and “or the final decision” in the third sentence; and in subdivision (6), substituted “Office of Administrative Hearings” for “Secretary” in the third sentence.

CASE NOTES

The use of the word “may” in this section is not accidental. It is consistent with the clearly defined statutory role of the Department and its Secretary. Reid v. Johnston County, 688 F. Supp. 200, 1988 U.S. Dist. LEXIS 7400 (E.D.N.C. 1988), aff'd, 885 F.2d 129, 1989 U.S. App. LEXIS 9675 (4th Cir. 1989).

Secretary’s affirmative duties are limited by the discretionary language in this section. Reid v. Johnston County, 688 F. Supp. 200, 1988 U.S. Dist. LEXIS 7400 (E.D.N.C. 1988), aff'd, 885 F.2d 129, 1989 U.S. App. LEXIS 9675 (4th Cir. 1989).

Negligence Claim Against State Jail Inspection Agency Not Barred By Public Duty Doctrine. —

Discretion of Secretary. —

Use of the word “may” in this section is purposeful. Department of Human Resources officials are not vested with the mandatory duty to remedy substandard jail conditions, since there is no evidence that the General Assembly intends the Secretary to have anything more than the discretionary power to act when and if he chooses to use that discretion. Reid v. Kayye, 885 F.2d 129, 1989 U.S. App. LEXIS 9675 (4th Cir. 1989).

County and its Board of Commissioners were liable under 42 U.S.C. § 1983 for past and continuing deprivations of constitutional rights of county prisoners and were subject to equitable remedies against them. Parnell v. Waldrep, 538 F. Supp. 1203, 1982 U.S. Dist. LEXIS 12427 (W.D.N.C. 1982).

State Officials Held Not Liable for Conditions at a County Jail. —

§ 153A-224. Supervision of local confinement facilities.

No person may be confined in a local confinement facility unless custodial personnel are present and available to provide continuous supervision in order that custody will be secure and that, in event of emergency, such as fire, illness, assaults by other prisoners, or otherwise, the prisoners can be protected. These personnel shall supervise prisoners closely enough to maintain safe custody and control and to be at all times informed of the prisoners’ general health and emergency medical needs.
In a medical emergency, the custodial personnel shall secure emergency medical care from a licensed physician according to the unit’s plan for medical care. If a physician designated in the plan is not available, the personnel shall secure medical services from any licensed physician who is available. The unit operating the facility shall pay the cost of emergency medical services unless the inmate has third-party insurance, in which case the third-party insurer shall be the initial payor and the medical provider shall bill the third-party insurer. The county shall only be liable for costs not reimbursed by the third-party insurer, in which event the county may recover from the inmate the cost of the non-reimbursed medical services.
If a person violates any provision of this section, he is guilty of a Class 1 misdemeanor.

History. 1967, c. 581, s. 2; 1973, c. 822, s. 1; 1993, c. 510, s. 1; c. 539, s. 1061; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to liability of county for emergency medical services for prisoners working pursuant to G.S. 162-58 , see G.S. 162-61 .

Legal Periodicals.

For note as to sheriff’s liability for prisoner suicide, in light of Helmly v. Bebber, 77 N.C. App. 275, 335 S.E.2d 182 (1985), see 64 N.C.L. Rev. 1520 (1986).

CASE NOTES

Subdivision (b) of this section and G.S. 153A-225 require that a county provide emergency medical services to prisoners incarcerated in the county’s jail and pay for such services. University of N.C. v. Hill, 96 N.C. App. 673, 386 S.E.2d 755, 1990 N.C. App. LEXIS 8 , aff'd, 327 N.C. 465 , 396 S.E.2d 323, 1990 N.C. LEXIS 832 (1990).

City Not Liable for Cost of Treatment Where Persons Arrested Were Confined in County Jail. —

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 subsection (b) of this section, 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, 1985 N.C. App. LEXIS 3700 (1985).

Payment of Expenses Under Insurance Policy. —

Since medical payments made by county were mandated by statute, paying jail inmate’s medical expenses was not voluntary, and therefore, payment under insurance policy was not barred for this reason. County of Guilford v. National Union Fire Ins. Co., 108 N.C. App. 1, 422 S.E.2d 360, 1992 N.C. App. LEXIS 829 (1992), aff'd, 333 N.C. 568 , 429 S.E.2d 347, 1993 N.C. LEXIS 179 (1993).

County’s Claim Not Barred by Policy Exclusion. —

Although insurance company argued that since county had a contract with hospital to provide medical care for prison inmates, policy exclusion barred coverage of payments made under that contract, since the county’s liability for inmate’s medical expenses was due not to its contract with the hospital, but rather to the statutory requirement that county prisons implement a plan for providing medical care to inmates, the county’s claim was not barred by this policy exclusion. County of Guilford v. National Union Fire Ins. Co., 108 N.C. App. 1, 422 S.E.2d 360, 1992 N.C. App. LEXIS 829 (1992), aff'd, 333 N.C. 568 , 429 S.E.2d 347, 1993 N.C. LEXIS 179 (1993).

Claims Not Barred by Policy Exclusion. —

In a wrongful death action arising from an incident at a county jail, although the sheriff claimed that sovereign immunity entitled him to summary judgment as a matter of law to the extent plaintiffs — the decedent’s mother and the administrator of his estate, sought to recover damages in excess of the sheriff’s official bond under G.S. 162-8 and G.S. 58-76-5 , plaintiffs’ claims were not barred by exclusions in the county’s liability insurance under G.S. 153A-435 ; although the policy excluded coverage for claims arising from criminal behavior and plaintiffs claimed the sheriff was negligent by violating G.S. 153A-224 — a Class 1 misdemeanor, other grounds were alleged for the sheriff’s negligence. Myers v. Bryant, 188 N.C. App. 585, 655 S.E.2d 882, 2008 N.C. App. LEXIS 215 (2008).

Breach of Duty to Provide Safety and Medical Care to Inmate. —

Summary judgment was denied to defendant sheriff and officers, where plaintiff suffered a severe brain injury while in their custody, and there was sufficient evidence of deliberate and reckless indifference to his medical needs under State and federal law. Layman v. Alexander, 343 F. Supp. 2d 483, 2004 U.S. Dist. LEXIS 23464 (W.D.N.C. 2004).

§ 153A-225. Medical care of prisoners.

Each unit that operates a local confinement facility shall develop a plan for providing medical care for prisoners in the facility. The plan:
1. Shall be designed to protect the health and welfare of the prisoners and to avoid the spread of contagious disease;
2. Shall provide for medical supervision of prisoners and emergency medical care for prisoners to the extent necessary for their health and welfare;
3. Shall provide for the detection, examination and treatment of prisoners who are infected with tuberculosis or venereal diseases; and
4. May utilize Medicaid coverage for inpatient hospitalization or for any other Medicaid services allowable for eligible prisoners, provided that the plan includes a reimbursement process which pays to the State the State portion of the costs, including the costs of the services provided and any administrative costs directly related to the services to be reimbursed, to the State’s Medicaid program.
  The unit shall develop the plan in consultation with appropriate local officials and organizations, including the sheriff, the county physician, the local or district health director, and the local medical society. The plan must be approved by the local or district health director after consultation with the area mental health, developmental disabilities, and substance abuse authority, if it is adequate to protect the health and welfare of the prisoners. Upon a determination that the plan is adequate to protect the health and welfare of the prisoners, the plan must be adopted by the governing body.As a part of its plan, each unit may establish fees of not more than twenty dollars ($20.00) per incident for the provision of nonemergency medical care to prisoners and a fee of not more than ten dollars ($10.00) for a 30-day supply or less of a prescription drug. In establishing fees pursuant to this section, each unit shall establish a procedure for waiving fees for indigent prisoners.
If a prisoner in the custody of a local confinement facility dies, the medical examiner and the coroner shall be notified immediately, regardless of the physical location of the prisoner at the time of death. Within five days after the day of the death, the administrator of the facility shall make a written report to the local or district health director and to the Secretary of Health and Human Services. The report shall be made on forms developed and distributed by the Department of Health and Human Services.
(b1) Whenever a local confinement facility transfers a prisoner from that facility to another local confinement facility, the transferring facility shall provide the receiving facility with any health information or medical records the transferring facility has in its possession pertaining to the transferred prisoner.
If a person violates any provision of this section (including the requirements regarding G.S. 130-97 and 130-121), he is guilty of a Class 1 misdemeanor.

History. 1967, c. 581, s. 2; 1973, c. 476, ss. 128, 138; c. 822, s. 1; 1973, c. 1140, s. 3; 1989, c. 727, s. 204; 1991, c. 237, s. 2; 1993, c. 539, s. 1062; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 385, s. 1; 1997-443, s. 11A.112; 2003-392, s. 1; 2004-199, s. 46(a); 2011-145, s. 31.26(f); 2011-192, s. 7(n); 2013-387, s. 2; 2013-389, s. 1; 2018-76, s. 1.

Editor’s Note.

Sections 130-97 and 130-121, referred to in subsection (c) of this section, were repealed by Session Laws 1983, c. 891, s. 1.

Session Laws 2011-145, s. 31.26(g), as added by Session Laws 2011-192, s. 7(n), provides: “This section becomes effective August 1, 2011.” Session Laws 2011-192, s. 7(n), was contingent on House Bill 200, 2011 Regular Session, becoming law. House Bill 200 was enacted as Session Laws 2011-145.

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 2013-387, s. 3, provides: “In preparation for the effective date of Section 2 of this act [July 1, 2014], the Department of Health and Human Services, Division of Medical Assistance, shall work with the North Carolina Association of County Commissioners to prepare for G.S. 153A-225(a)(4), as enacted by Section 2 of this act. The Department of Health and Human Services, Division of Medical Assistance, shall use a uniform method, developed by the North Carolina Association of County Commissioners, which will allow all counties to interface with the Division of Medical Assistance to implement this act. The Department of Public Safety shall provide technical assistance as needed.”

Effect of Amendments.

Session Laws 2011-145, s. 31.26(f), effective August 1, 2011, substituted “twenty dollars ($20.00)” for “ten dollars ($10.00)” in the last paragraph of subsection (a).

Session Laws 2013-387, s. 2, effective July 1, 2014, added subdivision (a)(4); and made related minor punctuation and stylistic changes.

Session Laws 2018-76, s. 1, effective June 25, 2018, rewrote the first sentence of subsection (b), which formerly read: “If a prisoner in a local confinement facility dies, the medical examiner and the coroner shall be notified immediately.”

CASE NOTES

This section and G.S. 153A-224(b) require that a county provide emergency medical services to prisoners incarcerated in the county’s jail and pay for such services. University of N.C. v. Hill, 96 N.C. App. 673, 386 S.E.2d 755, 1990 N.C. App. LEXIS 8 , aff'd, 327 N.C. 465 , 396 S.E.2d 323, 1990 N.C. LEXIS 832 (1990).

Liability of County for Emergency Medical Services. —

Where a sheriff in an emergency requested a physician to render services to a prisoner in his custody who had been badly wounded resisting arrest, and there was evidence tending to show that under the circumstances he could not have obtained in time an order from the board of county commissioners assuming responsibility on behalf of the county to pay for such services, the objection of the commissioners that under such circumstances the county would not pay for the services and that liability would only attach as to those prisoners delivered at the county jail was untenable. Spicer v. Williamson, 191 N.C. 487 , 132 S.E. 291, 1926 N.C. LEXIS 106 (1926) (decided under former law).

Payment of Expenses Under Insurance Policy. —

County’s Claim Not Barred by Policy Exclusion. —

§ 153A-225.1. Duty of custodial personnel when prisoners are unconscious or semiconscious.

Whenever a custodial officer of a local confinement facility takes custody of a prisoner who is unconscious, semiconscious, or otherwise apparently suffering from some disabling condition and unable to provide information on the causes of the condition, the officer should make a reasonable effort to determine if the prisoner is wearing a bracelet or necklace containing the Medic Alert Foundation’s emergency alert symbol to indicate that the prisoner suffers from diabetes, epilepsy, a cardiac condition or any other form of illness which would cause a loss of consciousness. If such a symbol is found indicating that the prisoner suffers from one of those conditions, the officer must make a reasonable effort to have appropriate medical care provided.
Failure of a custodial officer of a local confinement facility to make a reasonable effort to discover an emergency alert symbol as required by this section does not by itself establish negligence of the officer but may be considered along with other evidence to determine if the officer took reasonable precautions to ascertain the emergency medical needs of the prisoner in his custody.
A prisoner who is provided medical care under the provisions of this section is liable for the reasonable costs of that care unless he is indigent.
Repealed by Session Laws 1975, c. 818, s. 2.

History. 1975, c. 306, s. 2; c. 818, s. 2.

§ 153A-225.2. Payment of medical care of prisoners.

Counties shall reimburse those providers and facilities providing requested or emergency medical care outside of the local confinement facility the lesser amount of either a rate of seventy percent (70%) of the provider’s then-current prevailing charge or two times the then-current Medicaid rate for any given service. Each county shall have the right to audit any provider from whom the county has received a bill for services under this section but only to the extent necessary to determine the actual prevailing charge to ensure compliance with this section.
Nothing in this section shall preclude a county from contracting with a provider for services at rates that provide greater documentable cost avoidance for the county than do the rates contained in subsection (a) of this subsection or at rates that are less favorable to the county but that will ensure the continued access to care.
The county shall make reasonable efforts to equitably distribute prisoners among all hospitals or other appropriate health care facilities located within the same county and shall do so based upon the licensed acute care bed capacity at each of the hospitals located within the same county. Counties with more than one hospital or other appropriate health care facility shall provide semiannual reports conspicuously posted on the county’s Web site that detail compliance with this section, including information on the distribution of prisoner health care services among different hospitals and health care facilities.
For the purposes of this section, “requested or emergency medical care” shall include all medically necessary and appropriate care provided to an individual from the time that individual presents to the provider or facility in the custody of county law enforcement officers until the time that the individual is safely transferred back to the care of county law enforcement officers or medically discharged to another community setting, as appropriate.

History. 2013-387, s. 1.

§ 153A-226. Sanitation and food.

The Commission for Public Health shall adopt rules governing the sanitation of local confinement facilities, including the kitchens and other places where food is prepared for prisoners. The rules shall address, but not be limited to, the cleanliness of floors, walls, ceilings, storage spaces, utensils, ventilation equipment, and other facilities; adequacy of lighting, water, lavatory facilities, bedding, food protection facilities, treatment of eating and drinking utensils, and waste disposal; methods of food preparation, handling, storage, and serving; and any other item necessary to the health of the prisoners or the public.
The Commission for Public Health shall prepare a score sheet to be used by local health departments in inspecting local confinement facilities. The local health departments shall inspect local confinement facilities as often as may be required by the Commission for Public Health. If an inspector of the Department finds conditions that reflect hazards or deficiencies in the sanitation or food service of a local confinement facility, he shall immediately notify the local health department. The health department shall promptly inspect the facility. After making its inspection, the local health department shall forward a copy of its report to the Department of Health and Human Services and to the unit operating the facility, on forms prepared by the Department of Environmental Quality. The report shall indicate whether the facility and its kitchen or other place for preparing food is approved or disapproved for public health purposes. If the facility is disapproved, the situation shall be rectified according to the procedures of G.S. 153A-223 .

History. 1967, c. 581, s. 2; 1973, c. 476, s. 128; c. 822, s. 1; 1989, c. 727, s. 205; 1993, c. 262, s. 5; 1997-443, ss. 11A.113, 11A.118(a); 2007-182, s. 2; 2015-241, s. 14.30(u).

Effect of Amendments.

Session Laws 2007-182, s. 2, effective July 5, 2007, substituted “Commission for Public Health” for “Commission for Health Services” in subsection (a) and twice in subsection (b).

Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted “Department of Environmental Quality” for “Department of Environment and Natural Resources” in subsection (b).

§ 153A-227. [Repealed]

Repealed by Session Laws 1983, c. 745, s. 9.

§ 153A-228. Separation of sexes.

Male and female prisoners shall be confined in separate facilities or in separate quarters in local confinement facilities.

History. 1967, c. 581, s. 2; 1973, c. 822, s. 1.

§ 153A-229. Jailers’ report of jailed defendants.

The person having administrative control of a local confinement facility must furnish to the clerk of superior court a report listing such information reasonably at his disposal as is necessary to enable said clerk of superior court to comply with the provisions of G.S. 7A-109.1 .

History. 1973, c. 1286, s. 23; 1981, c. 522.

Part 2B. Dignity for Women Incarcerated in Local Confinement Facilities.

§ 153A-229.1. Definitions.

As used in this Article, the following definitions apply:

Body cavity searches. — The probing of body orifices in search of contraband.
Escape risk. — An incarcerated person who is determined to be at high risk for escape based on an individualized risk assessment.
Facility employee. — Any person who is employed by the local government and who works at or in a local confinement facility.
Important circumstance. — There has been an individualized determination that there are reasonable grounds to believe that the female incarcerated person presents a threat of harming herself, the fetus, or any other person, or an escape risk that cannot be reasonably contained by other means, including the use of additional personnel.
Incarcerated person. — Any person incarcerated or detained in a local confinement facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for violations of criminal law or the terms and conditions of parole, probation, pretrial release, or a diversionary program.
Local confinement facility. — “Local confinement facility” includes a county or city jail, a local lockup, a regional or district jail, a juvenile detention facility, a detention facility for adults operated by a local government, and any other facility operated by a local government for confinement of persons awaiting trial or serving sentences except that it shall not include a county satellite jail/work release unit governed by Part 3 of Article 10 of Chapter 153A of the General Statutes.
Menstrual products. — Products that women use during their menstrual cycle. These include tampons and sanitary napkins.
Postpartum recovery. — The six-week period following delivery, or longer, as determined by the health care professional responsible for the health and safety of the female incarcerated person.
Restraints. — Any physical or mechanical device used to restrict or control the movement of an incarcerated person’s body, limbs, or both.
Restrictive housing. — Any type of detention that involves removal from general population and an inability to leave a room or cell for the vast majority of the day. This term shall not include any of the following:
1. Single-cell accommodations in facilities that provide those accommodations to all incarcerated persons.
2. Single-cell accommodations in facilities that provide those accommodations to all persons of a certain sex or gender.
3. Single-cell accommodations provided for medical reasons, except when pregnancy, alone, is the medical reason for the single-cell accommodations.
4. Single-cell accommodations provided when an individualized determination has been made that there are reasonable grounds to believe that there exists a threat of harm to the female incarcerated person or the fetus.
5. Single-cell accommodations provided at the request of the incarcerated person.
State of undress. — A situation when an incarcerated person is partially or fully naked, either in the shower, toilet areas, a medical examination room, or while having a body cavity search conducted.

History. 2021-143, s. 3(a).

Editor’s Note.

Session Laws 2021-143, s. 1, provides: “This act shall be known as the Dignity for Women who are Incarcerated Act.”

Session Laws 2021-143, s. 4, made this Part, as added by Session Laws 2021-143, s. 3(a), effective December 1, 2021, and applicable to individuals in custody on or after that date.

§ 153A-229.2. Care for female incarcerated persons related to pregnancy, childbirth, and postpartum recovery.

Limitation on Use of Restraints. — Except as otherwise provided in this subsection, facility employees shall not apply restraints on a pregnant female incarcerated person during the second and third trimester of pregnancy, during labor and delivery, and during the postpartum recovery period.A female incarcerated person who is in the postpartum recovery period may only be restrained if a facility employee makes an individualized determination that an important circumstance exists. In this case, only wrist handcuffs held in front of the female incarcerated person’s body may be used and only when she is ambulatory. The facility employee ordering use of restraints on any female incarcerated person while in the postpartum recovery period shall submit a written report to the sheriff or administrator of the local confinement facility within five days following the use of restraints. The report shall contain the justification for restraining the female incarcerated person during postpartum recovery.Nothing in this subsection shall prohibit the use of handcuffs or wrist restraints held in front of the female incarcerated person’s body when in transport outside of the local confinement facility, except that these restraints shall not be used in transport when the female incarcerated person is in labor or is suspected to be in labor.Nothing in this subsection shall prohibit the use of medical restraints by a licensed health care professional to ensure the medical safety of a pregnant female incarcerated person.
Body Cavity Searches. — No facility employee, other than a certified health care professional, shall conduct body cavity searches of a female incarcerated person who is pregnant or in the postpartum recovery period unless the facility employee has probable cause to believe that the female incarcerated person is concealing contraband that presents an immediate threat of harm to the female incarcerated person, the fetus, or another person. In this case, the facility employee shall submit a written report to the sheriff or administrator of the local confinement facility within five days following the body cavity search, containing the justification for the body cavity search and the presence or absence of any contraband.
Nutrition. — The sheriff or the administrator of the local confinement facility shall ensure that pregnant female incarcerated persons are provided sufficient food and dietary supplements and are provided access to food at appropriate times of day, as ordered by a physician, a physician staff member, or a local confinement facility nutritionist to meet generally accepted prenatal nutritional guidelines for pregnant female incarcerated persons. While in the hospital, pregnant female incarcerated persons and female incarcerated persons in the postpartum recovery period shall have access to the full range of meal options provided by the hospital to ensure that each meal meets the female incarcerated person’s nutritional needs.
Restrictive Housing. — The sheriff or the administrator of the local confinement facility shall not place any pregnant female incarcerated person, or any female incarcerated person who is in the postpartum recovery period, in restrictive housing unless a local confinement facility employee makes an individualized determination that an important circumstance exists. In this case, the facility employee authorizing the placement of the female incarcerated person in restrictive housing shall submit a written report to the sheriff or administrator of the local confinement facility within five days following the transfer. The report shall contain the justification for confining the female incarcerated person in restrictive housing.
Bed Assignments. — The sheriff or the administrator of the local confinement facility shall not assign any female incarcerated person who is pregnant or in postpartum recovery to any bed that is elevated more than 3 feet from the floor of the local confinement facility.
Cost of Care. — While a pregnant female incarcerated person is incarcerated, the pregnant female incarcerated person shall be provided necessary prenatal, labor, and delivery care as needed at no cost to the pregnant female incarcerated person.
Bonding Period. — Following the delivery of a newborn by a female incarcerated person, the administrator of the local confinement facility shall permit the newborn to remain with the female incarcerated person while the female incarcerated person is in the hospital, unless the medical provider has a reasonable belief that remaining with the female incarcerated person poses a health or safety risk to the newborn.
Nutritional and Hygiene Products During the Postpartum Period. — During the period of postpartum recovery, the sheriff or administrator of the local confinement facility shall make available the necessary nutritional and hygiene products, including sanitary napkins, underwear, and hygiene products for the postpartum female incarcerated person. The products shall be provided at no cost to the female incarcerated person.
Reporting. — The sheriff or administrator of the local confinement facility shall compile a monthly summary of all written reports received pursuant to this section and G.S. 148-25.3 .

History. 2021-143, s. 3(a).

§ 153A-229.3. Inspection by facility employees.

Inspections When a Female Incarcerated Person is in the State of Undress. — To the greatest extent practicable and consistent with safety and order in a local confinement facility, there shall be a limitation on inspections by male facility employees when a female incarcerated person is in a state of undress. Nothing in this section shall limit the ability of a male facility employee from conducting inspections when a female incarcerated person may be in a state of undress if no female facility employees are available within a reasonable period of time.
Documentation Requirement. — If a male facility employee deems it is appropriate to conduct an inspection or search while a female incarcerated person is in a clear state of undress in an area such as the shower, the medical examination room, toilet areas, or while a female incarcerated person is having a body cavity search, the male local confinement facility employee shall submit a written report to the sheriff or administrator of the local confinement facility within five days following the inspection or search, containing the justification for a male facility employee to inspect the female incarcerated person while in a state of undress.

History. 2021-143, s. 3(a).

§ 153A-229.4. Access to menstrual products.

Access to Menstrual Products. — The sheriff or the administrator of the local confinement facility shall ensure that sufficient menstrual products are available at the local confinement facility for all female incarcerated persons who have an active menstrual cycle. Female incarcerated persons who menstruate shall be provided menstrual products as needed at no cost to the female incarcerated person.

History. 2021-143, s. 3(a).

Part 3. Satellite Jail/Work Release Units.

§ 153A-230. Legislative policy.

The policy of the General Assembly with respect to satellite jail/work release units is:

To encourage counties to accept responsibility for incarcerated misdemeanants thereby relieving the State prison system of its misdemeanant population;
To assist counties in providing suitable facilities for certain misdemeanants who receive active sentences;
To allow more misdemeanants who are employed at the time of sentencing to retain their jobs by eliminating the time involved in processing persons through the State system;
To enable misdemeanants to pay for their upkeep while serving time, to pay restitution, to continue to support their dependents, and to remain near the communities and families to which they will return after serving their time;
To provide more appropriate, cost effective housing for certain minimum custody misdemeanants and to utilize vacant buildings where possible and suitable for renovation;
To provide a rehabilitative atmosphere for non-violent misdemeanants who otherwise would face a substantial threat of imprisonment; and
To encourage the use of alternative to incarceration programs.

History. 1987, c. 207, s. 1.

Editor’s Note.

Session Laws 1987, c. 207, s. 4 made this Part effective July 1, 1987, but provided that the act should not be construed to obligate the General Assembly to make any appropriation to implement its provisions, nor should it be construed to obligate the State to make any grant for which no funds have been appropriated by the General Assembly.

Legal Periodicals.

For note, “North Carolina County Jail Inmates’ Right of Access to Courts,” see 66 N.C.L. Rev. 583 (1988).

§ 153A-230.1. Definitions. [Effective until January 1, 2023]

Unless otherwise clearly required by the context, the words and phrases defined in this section have the meanings indicated when used in this Part:

“Office” means the Office of State Budget and Management.
“Satellite Jail/Work Release Unit” means a building or designated portion of a building primarily designed, staffed, and used for the housing of misdemeanants participating in a work release program. These units shall house misdemeanants only, except that, if he so chooses, the Sheriff may accept responsibility from the Division of Adult Correction and Juvenile Justice of the Department of Public Safety for the housing of felons who do not present security risks, who have achieved work release status, and who will be employed on work release, or for felons committed directly to his custody pursuant to G.S. 15A-1352(b). These units shall be operated on a full time basis, i.e., seven days/nights a week.

History. 1987, c. 207, s. 1; 1987, (Reg. Sess., 1988), c. 1106, s. 1; 2000-140, s. 93.1(a); 2001-424, s. 12.2(b); 2011-145, s. 19.1(h); 2017-186, s. 2(ggggggggg).

Section Set Out Twice.

The section above is effective until January 1, 2023. For the section as amended January 1, 2023, see the following section, also numbered G.S. 153A-230.1 .

Editor's Note.

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2017-186, s. 2(ggggggggg), effective December 1, 2017, inserted “and Juvenile Justice” in the second sentence of subdivision (2).

Session Laws 2021-180, s. 19C.9(p), substituted “Division of Prisons of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” in the second sentence of subdivision (2). For effective date and applicability, see editor's note.

§ 153A-230.1. Definitions. [Effective January 1, 2023]

Unless otherwise clearly required by the context, the words and phrases defined in this section have the meanings indicated when used in this Part:

“Office” means the Office of State Budget and Management.
“Satellite Jail/Work Release Unit” means a building or designated portion of a building primarily designed, staffed, and used for the housing of misdemeanants participating in a work release program. These units shall house misdemeanants only, except that, if he so chooses, the Sheriff may accept responsibility from the Division of Prisons of the Department of Adult Correction for the housing of felons who do not present security risks, who have achieved work release status, and who will be employed on work release, or for felons committed directly to his custody pursuant to G.S. 15A-1352(b). These units shall be operated on a full time basis, i.e., seven days/nights a week.

History. 1987, c. 207, s. 1; 1987, (Reg. Sess., 1988), c. 1106, s. 1; 2000-140, s. 93.1(a); 2001-424, s. 12.2(b); 2011-145, s. 19.1(h); 2017-186, s. 2(ggggggggg); 2021-180, s. 19C.9(p).

Section Set Out Twice.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the preceding section, also numbered G.S. 153A-230.1 .

Editor's Note.

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2017-186, s. 2(ggggggggg), effective December 1, 2017, inserted “and Juvenile Justice” in the second sentence of subdivision (2).

Session Laws 2021-180, s. 19C.9(p), substituted “Division of Prisons of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” in the second sentence of subdivision (2). For effective date and applicability, see editor's note.

§ 153A-230.2. Creation of Satellite Jail/Work Release Unit Fund. [Effective until January 1, 2023]

There is created in the Office of State Budget and Management the County Satellite Jail/Work Release Unit Fund to provide State grant funds for counties or groups of counties for construction of satellite jail/work release units for certain misdemeanants who receive active sentences. A county or group of counties may apply to the Office for a grant under this section. The application shall be in a form established by the Office. The Office shall:
1. Develop application and grant criteria based on the basic requirements listed in this Part,
2. Provide all Boards of County Commissioners and Sheriffs with the criteria and appropriate application forms, technical assistance, if requested, and a proposed written agreement,
3. Review all applications,
4. Select grantees and award grants,
5. Award no more than seven hundred fifty thousand dollars ($750,000) for any one county or group of counties except that if a group of counties agrees to jointly operate one unit for males and one unit for females, the maximum amount may be awarded for each unit,
6. Take into consideration the potential number of misdemeanants and the percentage of the county’s or counties’ misdemeanant population to be diverted from the State prison system,
7. Take into consideration the utilization of existing buildings suitable for renovation where appropriate,
8. Take into consideration the timeliness with which a county proposes to complete and occupy the unit,
9. Take into consideration the appropriateness and cost effectiveness of the proposal,
10. Take into consideration the plan with which the county intends to coordinate the unit with other community service programs such as intensive supervision, community penalties, and community service.
  When considering the items listed in subdivisions (6) through (10), the Office shall determine the appropriate weight to be given each item.
A county or group of counties is eligible for a grant under this section if it agrees to abide by the basic requirements for satellite jail/work release units established in G.S. 153A-230.3 . In order to receive a grant under this section, there must be a written agreement to abide by the basic requirements for satellite jail/work release units set forth in G.S. 153A-230.3 . The written agreement shall be signed by the Chairman of the Board of County Commissioners, with approval of the Board of County Commissioners and after consultation with the Sheriff, and a representative of the Office of State Budget and Management. If a group of counties applies for the grant, then the agreement must be signed by the Chairman of the Board of County Commissioners of each county. Any variation from, including termination of, the original signed agreement must be approved by both the Office of State Budget and Management and by a vote of the Board of County Commissioners of the county or counties.When the county or group of counties receives a grant under this section, the county or group of counties accepts ownership of the satellite jail/work release unit and full financial responsibility for maintaining and operating the unit, and for the upkeep of its occupants who comply with the eligibility criteria in G.S. 153A-230.3(a)(1). The county shall receive from the Division of Adult Correction and Juvenile Justice of the Department of Public Safety the amount paid to local confinement facilities under G.S. 148-32.1 for prisoners which are in the unit, but do not meet the eligibility of requirements under G.S. 153A-230.3(a)(1).

History. 1987, c. 207, s. 1; 1987 (Reg. Sess., 1988), c. 1106, ss. 2, 3; 1989, c. 761, s. 2; 2000-140, s. 93.1(a); 2001-424, s. 12.2(b); 2009-372, s. 7; 2011-145, s. 19.1(h); 2017-186, s. 2(hhhhhhhhh).

Section Set Out Twice.

The section above is effective until January 1, 2023. For the section as amended January 1, 2023, see the following section, also numbered G.S. 153A-230.2 .

Editor's Note.

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2009-372, s. 7, effective December 1, 2009, and applicable to offenses committed on or after that date, substituted “supervision” for “probation” in subdivision (a)(10).

Session Laws 2017-186, s. 2(hhhhhhhhh), effective December 1, 2017, inserted “and Juvenile Justice” in the last sentence of the second paragraph in subsection (b).

Session Laws 2021-180, s. 19C.9(p), substituted “Division of Prisons of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” in the last sentence of the last paragraph of subsection (b). For effective date and applicability, see editor's note.

§ 153A-230.2. Creation of Satellite Jail/Work Release Unit Fund. [Effective January 1, 2023]

There is created in the Office of State Budget and Management the County Satellite Jail/Work Release Unit Fund to provide State grant funds for counties or groups of counties for construction of satellite jail/work release units for certain misdemeanants who receive active sentences. A county or group of counties may apply to the Office for a grant under this section. The application shall be in a form established by the Office. The Office shall:
1. Develop application and grant criteria based on the basic requirements listed in this Part,
2. Provide all Boards of County Commissioners and Sheriffs with the criteria and appropriate application forms, technical assistance, if requested, and a proposed written agreement,
3. Review all applications,
4. Select grantees and award grants,
5. Award no more than seven hundred fifty thousand dollars ($750,000) for any one county or group of counties except that if a group of counties agrees to jointly operate one unit for males and one unit for females, the maximum amount may be awarded for each unit,
6. Take into consideration the potential number of misdemeanants and the percentage of the county’s or counties’ misdemeanant population to be diverted from the State prison system,
7. Take into consideration the utilization of existing buildings suitable for renovation where appropriate,
8. Take into consideration the timeliness with which a county proposes to complete and occupy the unit,
9. Take into consideration the appropriateness and cost effectiveness of the proposal,
10. Take into consideration the plan with which the county intends to coordinate the unit with other community service programs such as intensive supervision, community penalties, and community service.
  When considering the items listed in subdivisions (6) through (10), the Office shall determine the appropriate weight to be given each item.
A county or group of counties is eligible for a grant under this section if it agrees to abide by the basic requirements for satellite jail/work release units established in G.S. 153A-230.3 . In order to receive a grant under this section, there must be a written agreement to abide by the basic requirements for satellite jail/work release units set forth in G.S. 153A-230.3 . The written agreement shall be signed by the Chairman of the Board of County Commissioners, with approval of the Board of County Commissioners and after consultation with the Sheriff, and a representative of the Office of State Budget and Management. If a group of counties applies for the grant, then the agreement must be signed by the Chairman of the Board of County Commissioners of each county. Any variation from, including termination of, the original signed agreement must be approved by both the Office of State Budget and Management and by a vote of the Board of County Commissioners of the county or counties.When the county or group of counties receives a grant under this section, the county or group of counties accepts ownership of the satellite jail/work release unit and full financial responsibility for maintaining and operating the unit, and for the upkeep of its occupants who comply with the eligibility criteria in G.S. 153A-230.3(a)(1). The county shall receive from the Division of Prisons of the Department of Adult Correction the amount paid to local confinement facilities under G.S. 148-32.1 for prisoners which are in the unit, but do not meet the eligibility of requirements under G.S. 153A-230.3(a)(1).

Section Set Out Twice.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the preceding section, also numbered G.S. 153A-230.2 .

Editor's Note.

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2009-372, s. 7, effective December 1, 2009, and applicable to offenses committed on or after that date, substituted “supervision” for “probation” in subdivision (a)(10).

Session Laws 2017-186, s. 2(hhhhhhhhh), effective December 1, 2017, inserted “and Juvenile Justice” in the last sentence of the second paragraph in subsection (b).

Session Laws 2021-180, s. 19C.9(p), substituted “Division of Prisons of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” in the last sentence of the last paragraph of subsection (b). For effective date and applicability, see editor's note.

§ 153A-230.3. Basic requirements for satellite jail/work release units. [Effective until January 1, 2023]

Eligibility for Unit. — The following rules shall govern which misdemeanants are housed in a satellite jail/work release unit:
1. Any convicted misdemeanant who:
  1. Receives an active sentence in the county or group of counties operating the unit,
  2. Is employed in the area or can otherwise earn his keep by working at the unit on maintenance and other jobs related to upkeep and operation of the unit or by assignment to community service work, and
  3. Consents to placement in the unit under these conditions, shall not be sent to the State prison system except by written findings of the sentencing judge that the misdemeanant is violent or otherwise a threat to the public and therefore unsuitable for confinement in the unit.
2. The County shall offer work release programs to both male and female misdemeanants, through local facilities for both, or through a contractual agreement with another entity for either, provided that such arrangement is in reasonable proximity to the misdemeanant’s workplace.
3. The sentencing judge shall make a finding of fact as to whether the misdemeanant is qualified for occupancy in the unit pursuant to G.S. 15A-1352(a). If the sentencing judge determines that the misdemeanant is qualified for occupancy in the unit and the misdemeanant meets the requirements of subdivision (1), then the custodian of the local confinement facility may transfer the misdemeanant to the unit. If at any time either prior to or after placement of an inmate into the unit the Sheriff determines that there is an indication of violence, unsuitable behavior, or other threat to the public that could make the prisoner unsuitable for the unit, the Sheriff may place the prisoner in the county jail.
4. The Sheriff may accept work release misdemeanants from other counties provided that those inmates agree to pay for their upkeep, that space is available, and that the Sheriff is willing to accept responsibility for the prisoner after screening.
5. The Sheriff may accept work release misdemeanants or felons from the Division of Adult Correction and Juvenile Justice of the Department of Public Safety provided that those inmates agree to pay for their upkeep, that space is available, and that the Sheriff is willing to accept responsibility for the prisoner after screening.
  (a1) Non-eligible for unit. — If the sentencing judge finds that the misdemeanant does not meet the eligibility criteria set forth in G.S. 135A-230.3(a)(1)b, but is otherwise eligible for placement in the unit, then the Sheriff may transfer the misdemeanant from the local confinement facility to the unit if the misdemeanant meets the eligibility criteria at a later date. The Sheriff may also transfer prisoners who were placed in the unit pursuant to G.S. 148-32.1(b) to the local confinement facility when space becomes available.
Operation of Satellite Jail/Work Release Unit. — A county or group of counties operating a satellite jail/work release unit shall comply with the following requirements concerning operation of the unit:
1. The county shall make every effort to ensure that at least eighty percent (80%) of the unit occupants shall be employed and on work release, and that the remainder shall earn their keep by working at the unit on maintenance and other jobs related to the upkeep and operation of the unit or by assignment to community service work, and that alcohol and drug rehabilitation be available through community resources.
2. The county shall require the occupants to give their earnings, less standard payroll deduction required by law and premiums for group health insurance coverage, to the Sheriff. The county may charge a per day charge from those occupants who are employed or otherwise able to pay from other resources available to the occupants. The per day charge shall be calculated based on the following formula: The charge shall be either the amount that the Division of Adult Correction and Juvenile Justice of the Department of Public Safety deducts from a prisoner’s work-release earnings to pay for the cost of the prisoner’s keep or fifty percent (50%) of the occupant’s net weekly income, whichever is greater, but in no event may the per day charge exceed an amount that is twice the amount that the Division of Adult Correction and Juvenile Justice of the Department of Public Safety pays each local confinement facility for the cost of providing food, clothing, personal items, supervision, and necessary ordinary medical expenses. The per day charge may be adjusted on an individual basis where restitution and/or child support has been ordered, or where the occupant’s salary or resources are insufficient to pay the charge.The county also shall accumulate a reasonable sum from the earnings of the occupant to be returned to him when he is released from the unit. The county also shall follow the guidelines established for the Division of Adult Correction and Juvenile Justice of the Department of Public Safety in G.S. 148-33.1(f) for determining the amount and order of disbursements from the occupant’s earnings.
3. Any and all proceeds from daily fees shall belong to the county’s General Fund to aid in offsetting the operation and maintenance of the satellite unit.
4. The unit shall be operated on a full-time basis, i.e., seven days/nights a week, but weekend leave may be granted by the Sheriff. In granting weekend leave, the Sheriff shall follow the policies and procedures of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety for granting weekend leave for Level 3 minimum custody inmates.
5. Earned time shall be applied to these county prisoners in the same manner as prescribed in G.S. 15A-1340.20 and G.S. 148-13 for State prisoners.
6. The Sheriff shall maintain complete and accurate records on each inmate. These records shall contain the same information as required for State prisoners that are housed in county local confinement facilities.

History. 1987, c. 207, s. 1; 1987 (Reg. Sess., 1988), c. 1106, ss. 4, 5; 1989, c. 761, ss. 4, 7; 1993 (Reg. Sess., 1994), c. 767, s. 3; 2011-145, s. 19.1(h); 2017-186, s. 2(iiiiiiiii).

Section Set Out Twice.

The section above is effective until January 1, 2023. For the section as amended January 1, 2023, see the following section, also numbered G.S. 153A-230.3 .

Editor’s Note.

The reference in subsection (a1) of this section to G.S. 135A-230.3 was probably intended to refer to this section.

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2017-186, s. 2(iiiiiiiii), effective December 1, 2017, inserted “and Juvenile Justice” throughout the section.

Session Laws 2021-180, s. 19C.9(p), substituted “Division of Prisons of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” throughout this section. For effective date and applicability, see editor's note.

§ 153A-230.3. Basic requirements for satellite jail/work release units. [Effective January 1, 2023]

Eligibility for Unit. — The following rules shall govern which misdemeanants are housed in a satellite jail/work release unit:
1. Any convicted misdemeanant who:
  1. Receives an active sentence in the county or group of counties operating the unit,
  2. Is employed in the area or can otherwise earn his keep by working at the unit on maintenance and other jobs related to upkeep and operation of the unit or by assignment to community service work, and
  3. Consents to placement in the unit under these conditions, shall not be sent to the State prison system except by written findings of the sentencing judge that the misdemeanant is violent or otherwise a threat to the public and therefore unsuitable for confinement in the unit.
2. The County shall offer work release programs to both male and female misdemeanants, through local facilities for both, or through a contractual agreement with another entity for either, provided that such arrangement is in reasonable proximity to the misdemeanant’s workplace.
3. The sentencing judge shall make a finding of fact as to whether the misdemeanant is qualified for occupancy in the unit pursuant to G.S. 15A-1352(a). If the sentencing judge determines that the misdemeanant is qualified for occupancy in the unit and the misdemeanant meets the requirements of subdivision (1), then the custodian of the local confinement facility may transfer the misdemeanant to the unit. If at any time either prior to or after placement of an inmate into the unit the Sheriff determines that there is an indication of violence, unsuitable behavior, or other threat to the public that could make the prisoner unsuitable for the unit, the Sheriff may place the prisoner in the county jail.
4. The Sheriff may accept work release misdemeanants from other counties provided that those inmates agree to pay for their upkeep, that space is available, and that the Sheriff is willing to accept responsibility for the prisoner after screening.
5. The Sheriff may accept work release misdemeanants or felons from the Division of Prisons of the Department of Adult Correction provided that those inmates agree to pay for their upkeep, that space is available, and that the Sheriff is willing to accept responsibility for the prisoner after screening.
  (a1) Non-eligible for unit. — If the sentencing judge finds that the misdemeanant does not meet the eligibility criteria set forth in G.S. 135A-230.3(a)(1)b, but is otherwise eligible for placement in the unit, then the Sheriff may transfer the misdemeanant from the local confinement facility to the unit if the misdemeanant meets the eligibility criteria at a later date. The Sheriff may also transfer prisoners who were placed in the unit pursuant to G.S. 148-32.1(b) to the local confinement facility when space becomes available.
Operation of Satellite Jail/Work Release Unit. — A county or group of counties operating a satellite jail/work release unit shall comply with the following requirements concerning operation of the unit:
1. The county shall make every effort to ensure that at least eighty percent (80%) of the unit occupants shall be employed and on work release, and that the remainder shall earn their keep by working at the unit on maintenance and other jobs related to the upkeep and operation of the unit or by assignment to community service work, and that alcohol and drug rehabilitation be available through community resources.
2. The county shall require the occupants to give their earnings, less standard payroll deduction required by law and premiums for group health insurance coverage, to the Sheriff. The county may charge a per day charge from those occupants who are employed or otherwise able to pay from other resources available to the occupants. The per day charge shall be calculated based on the following formula: The charge shall be either the amount that the Division of Prisons of the Department of Adult Correction deducts from a prisoner’s work-release earnings to pay for the cost of the prisoner’s keep or fifty percent (50%) of the occupant’s net weekly income, whichever is greater, but in no event may the per day charge exceed an amount that is twice the amount that the Division of Prisons of the Department of Adult Correction pays each local confinement facility for the cost of providing food, clothing, personal items, supervision, and necessary ordinary medical expenses. The per day charge may be adjusted on an individual basis where restitution and/or child support has been ordered, or where the occupant’s salary or resources are insufficient to pay the charge.The county also shall accumulate a reasonable sum from the earnings of the occupant to be returned to him when he is released from the unit. The county also shall follow the guidelines established for the Division of Prisons of the Department of Adult Correction in G.S. 148-33.1(f) for determining the amount and order of disbursements from the occupant’s earnings.
3. Any and all proceeds from daily fees shall belong to the county’s General Fund to aid in offsetting the operation and maintenance of the satellite unit.
4. The unit shall be operated on a full-time basis, i.e., seven days/nights a week, but weekend leave may be granted by the Sheriff. In granting weekend leave, the Sheriff shall follow the policies and procedures of the Division of Prisons of the Department of Adult Correction for granting weekend leave for Level 3 minimum custody inmates.
5. Earned time shall be applied to these county prisoners in the same manner as prescribed in G.S. 15A-1340.20 and G.S. 148-13 for State prisoners.
6. The Sheriff shall maintain complete and accurate records on each inmate. These records shall contain the same information as required for State prisoners that are housed in county local confinement facilities.

History. 1987, c. 207, s. 1; 1987 (Reg. Sess., 1988), c. 1106, ss. 4, 5; 1989, c. 761, ss. 4, 7; 1993 (Reg. Sess., 1994), c. 767, s. 3; 2011-145, s. 19.1(h); 2017-186, s. 2(iiiiiiiii); 2021-180, s. 19C.9(p).

Section Set Out Twice.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the preceding section, also numbered G.S. 153A-230.3 .

Editor’s Note.

The reference in subsection (a1) of this section to G.S. 135A-230.3 was probably intended to refer to this section.

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2017-186, s. 2(iiiiiiiii), effective December 1, 2017, inserted “and Juvenile Justice” throughout the section.

Session Laws 2021-180, s. 19C.9(p), substituted “Division of Prisons of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” throughout this section. For effective date and applicability, see editor's note.

§ 153A-230.4. Standards.

The county satellite jail/work release units for misdemeanants shall not be subject to the standards promulgated for local confinement facilities pursuant to G.S. 153A-221 . The Secretary of Health and Human Services shall develop and enforce standards for satellite/work release units. The Secretary shall take into consideration that they are to house only screened misdemeanants most of whom are on work release and therefore occupy the premises only in their off-work hours. After consultation with the North Carolina Sheriff’s Association, the North Carolina Association of County Commissioners, and the Joint Legislative Commission on Governmental Operations, the Secretary of Health and Human Services shall promulgate standards suitable for these units by January 1, 1988, and shall include these units in the Division’s monitoring and inspection responsibilities. Further, the North Carolina Sheriffs’ Education and Training Standards Commission shall include appropriate training for Sheriffs and other county law enforcement personnel in regard to the operation, management and guidelines for county work release centers pursuant to its authority under G.S. 17E-4 .

History. 1987, c. 207, s. 1; 1987 (Reg. Sess., 1988), c. 1106, s. 6; 1997-443, s. 11A.118(a); 2011-145, s. 19.1(h).

§ 153A-230.5. Satellite jails/work release units built with non-State funds. [Effective until January 1, 2023]

If a county is operating a satellite jail/work release unit prior to the enactment of this act, the county may apply to the Office of State Budget and Management for grant funds to recover any verifiable construction or renovation costs for those units and for improvement funds except that the total for reimbursement and improvement shall not exceed seven hundred fifty thousand dollars ($750,000). Any county accepting such a grant or any other State monies for county satellite jails must agree to all of the basic requirements listed in G.S. 153A-230.2 and G.S. 153A-230.3 .
If a county operates a non-State funded satellite jail/work release unit that does not comply with the basic requirements listed in G.S. 153A-230.2 and G.S. 153A-230.3 , then the satellite jail shall be subject to the standards, rules, and regulations to be promulgated by the Secretary of Health and Human Services pursuant to Part 2 of Article 10 of Chapter 153A. If a county is reimbursed for the cost of a prisoner’s keep from an inmate’s work release earnings in an amount equal to or greater than that paid by the Division of Adult Correction and Juvenile Justice of the Department of Public Safety to local confinement facilities under G.S. 148-32.1 , the county may not receive additional payments from the Division for the cost of a prisoner’s keep. However, if reimbursement to the county for the cost of a prisoner’s keep is less than the amount allowed under G.S. 148-32.1 , the county may receive from the Division of Adult Correction and Juvenile Justice of the Department of Public Safety the difference in the amount received from work release earnings and the amount paid by the Division to local confinement facilities. The Division may promulgate rules regarding such payment arrangements.

History. 1987, c. 207, s. 1; 1987 (Reg. Sess., 1988), c. 1106, s. 7; 1989, c. 761, s. 5; 1997-443, s. 11A.118(a); 2000-140, s. 93.1(a); 2001-424, s. 12.2(b); 2011-145, s. 19.1(h); 2017-186, s. 2(jjjjjjjjj).

Section Set Out Twice.

The section above is effective until January 1, 2023. For the section as amended January 1, 2023, see the following section, also numbered G.S. 153A-230.5 .

Editor’s Note.

The phrase “this act” in subsection (a) refers to Session Laws 1987, c. 207, which became effective July 1, 1987.

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2017-186, s. 2(jjjjjjjjj), effective December 1, 2017, inserted “and Juvenile Justice” throughout subsection (b).

Session Laws 2021-180, s. 19C.9(p), substituted “Division of Prisons of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” twice in subsection (b). For effective date and applicability, see editor's note.

§ 153A-230.5. Satellite jails/work release units built with non-State funds. [Effective January 1, 2023]

If a county is operating a satellite jail/work release unit prior to the enactment of this act, the county may apply to the Office of State Budget and Management for grant funds to recover any verifiable construction or renovation costs for those units and for improvement funds except that the total for reimbursement and improvement shall not exceed seven hundred fifty thousand dollars ($750,000). Any county accepting such a grant or any other State monies for county satellite jails must agree to all of the basic requirements listed in G.S. 153A-230.2 and G.S. 153A-230.3 .
If a county operates a non-State funded satellite jail/work release unit that does not comply with the basic requirements listed in G.S. 153A-230.2 and G.S. 153A-230.3 , then the satellite jail shall be subject to the standards, rules, and regulations to be promulgated by the Secretary of Health and Human Services pursuant to Part 2 of Article 10 of Chapter 153A. If a county is reimbursed for the cost of a prisoner’s keep from an inmate’s work release earnings in an amount equal to or greater than that paid by the Division of Prisons of the Department of Adult Correction to local confinement facilities under G.S. 148-32.1 , the county may not receive additional payments from the Division for the cost of a prisoner’s keep. However, if reimbursement to the county for the cost of a prisoner’s keep is less than the amount allowed under G.S. 148-32.1 , the county may receive from the Division of Prisons of the Department of Adult Correction the difference in the amount received from work release earnings and the amount paid by the Division to local confinement facilities. The Division may promulgate rules regarding such payment arrangements.

Section Set Out Twice.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the preceding section, also numbered G.S. 153A-230.5 .

Editor’s Note.

The phrase “this act” in subsection (a) refers to Session Laws 1987, c. 207, which became effective July 1, 1987.

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2017-186, s. 2(jjjjjjjjj), effective December 1, 2017, inserted “and Juvenile Justice” throughout subsection (b).

Session Laws 2021-180, s. 19C.9(p), substituted “Division of Prisons of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” twice in subsection (b). For effective date and applicability, see editor's note.

§§ 153A-231, 153A-232.

Reserved for future codification purposes.

Article 11. Fire Protection.

§ 153A-233. Fire-fighting and prevention services.

A county may establish, organize, equip, support, and maintain a fire department; may prescribe the duties of the fire department; may provide financial assistance to incorporated volunteer fire departments; may contract for fire-fighting or prevention services with one or more counties, cities, or other units of local government or with an agency of the State government, or with one or more incorporated volunteer fire departments; and may for these purposes appropriate funds not otherwise limited as to use by law. The county may also designate fire districts or parts of existing districts and prescribe the boundaries thereof for insurance grading purposes.

History. 1945, c. 244; 1973, c. 822, s. 1; 1977, c. 158.

Local Modification.

Graham: 1985, c. 272; (As to Article 11) Halifax: 1993, c. 316, s. 1; Macon: 1985, c. 272; (As to Article 11) Richmond: 1995 (Reg. Sess., 1996), c. 657, s. 1.

§ 153A-234. Fire marshal.

A county may appoint a fire marshal and employ persons as his assistants. A county may also impose any duty that might be imposed on a fire marshal on any other officer or employee of the county. The board of commissioners shall set the duties of the fire marshal, which may include but are not limited to:

Advising the board on improvements in the fire-fighting or fire prevention activities under the county’s supervision or control.
Coordinating fire-fighting and training activities under the county’s supervision or control.
Coordinating fire prevention activities under the county’s supervision or control.
Assisting incorporated volunteer fire departments in developing and improving their fire-fighting or fire prevention capabilities.
Making fire prevention inspections, including the periodic inspections and reports of school buildings required by Chapter 115 and the inspections of child care facilities required by Chapter 110. A fire marshal shall not make electrical inspections unless he is qualified to do so under G.S. 153A-351.

History. 1959, c. 290; 1969, c. 1064, s. 2; 1973, c. 822, s. 1; 1997-506, s. 62.

Editor’s Note.

Chapter 115, referred to in subdivision (5), was repealed by Session Laws 1981, c. 423, s. 1, and replaced by Chapter 115C.

§ 153A-235. [Repealed]

Repealed by Session Laws 1989, c. 681, s. 14, effective July 1, 1991.

Editor’s Note.

Session Laws 1989, c. 681, s. 14 repealed this section upon adoption of fire protection code provisions by the North Carolina Building Code Council. Such provisions were adopted July 1, 1991.

§ 153A-236. Honoring deceased or retiring firefighters.

A fire department established by a county pursuant to this Article may, in the discretion of the board of commissioners, 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 board. The price may be less than the fair market value of the helmet.

History. 2003-145, s. 1.

Cross References.

Municipality honoring deceased or retiring firefighters, see G.S. 160A-294.1 .

§ 153A-237.

Reserved for future codification purposes.

Article 12. Roads and Bridges.

§ 153A-238. Public road defined for counties.

In this Article “public road” or “road” means any road, street, highway, thoroughfare, or other way of passage that has been irrevocably dedicated to the public or in which the public has acquired rights by prescription, without regard to whether it is open for travel, except that in G.S. 153A-239.1 , the word “road” means both private roads and public roads.
Repealed by Session Laws 1993, c. 62, s. 1.

History. 1979, 2nd Sess., c. 1319, s. 1; 1981, c. 568; 1983, cc. 98, 299; 1987 (Reg. Sess., 1988), cc. 900, 906; 1989, c. 335, s. 1; 1989 (Reg. Sess., 1990), cc. 836, 854, 911; 1991, c. 9, s. 1; 1991 (Reg. Sess., 1992), c. 778, s. 1; c. 849, ss. 1, 2.1; c. 936, s. 1; 1993, c. 62, s. 1.

Editor’s Note.

Session Laws 1979, 2nd Sess., c. 1319, s. 1, as amended by Session Laws 1981, c. 568; 1983, cc. 98 and 299; 1987 (Reg. Sess., 1988), cc. 900 and 906; 1989, c. 335, s. 1; and 1989 (Reg. Sess., 1990), c. 836, was codified as this section at the direction of the Revisor of Statutes.

§ 153A-239. [Repealed]

Repealed by Session Laws 1993, c. 62, s. 2, effective May 24, 1993.

Editor’s Note.

Section 153A-238 formerly excepted certain counties from the application of this section. Session Laws 1993, c. 62, repealed this section and made G.S. 153A-238 statewide in application.

§ 153A-239.1. Naming roads and assigning street numbers in unincorporated areas for counties.

A county may by ordinance name or rename any road within the county and not within a city, and may pursuant to a procedure established by ordinance assign or reassign street numbers for use on such a road. In naming or renaming a road, a county may not:
1. Change the name, if any, given to the road by the Board of Transportation, unless the Board of Transportation agrees;
2. Change the number assigned to the road by the Board of Transportation, but may give the road a name in addition to its number; or
3. Give the road a name that is deceptively similar to the name of any other public road in the vicinity.A county shall not name or rename a road or adopt an ordinance to establish a procedure to assign or reassign street numbers on a road until it has held a public hearing on the matter. At least 10 days before the day of the hearing to name or rename a road, the board of commissioners shall cause notice of the time, place and subject matter of the hearing to be prominently posted at the county courthouse, in at least two public places in the township or townships where the road is located, and shall publish a notice of such hearing in a newspaper of general circulation published in the county. At least 10 days before the day of the hearing to adopt an ordinance to establish a procedure to assign or reassign street numbers on a road, the board of commissioners shall publish a notice of such hearing in a newspaper of general circulation in the county. After naming or renaming a road, or assigning or reassigning street numbers on a road, a county shall cause notice of its action to be given to the local postmaster with jurisdiction over the road, to the Board of Transportation, and to any city within five miles of the road. Names may be initially assigned to new roads by recordation of an approved subdivision plat without following the procedure established by this section.
Repealed by Session Laws 1993, c. 62, s. 3.

History. 1979, 2nd Sess., c. 1319, s. 2; 1981, c. 568; 1983, cc. 98, 299; 1987 (Reg. Sess., 1988), cc. 900, 906; 1989, c. 335, s. 1; 1989 (Reg. Sess., 1990), cc. 836, 854, 911; 1991, c. 9, s. 2; 1991 (Reg. Sess., 1992), c. 778, s. 2; c. 849, ss. 2, 2.2; c. 936, s. 2; 1993, c. 62, s. 3; 2001-145, s. 1.

Local Modification.

Cleveland: 1989, c. 156.

Editor’s Note.

Session Laws 1979, 2nd Sess., c. 1319, s. 2, as amended by Session Laws 1981, c. 568; 1983, cc. 98 and 299; 1987 (Reg. Sess., 1988), cc. 900 and 906; 1989, c. 335, s. 1; and 1989 (Reg. Sess., 1990), cc. 836, 854 and 911 has been codified as this section at the direction of the Revisor of Statutes.

§ 153A-240. [Repealed]

Repealed by Session Laws 1993, c. 62, s. 4, effective May 24, 1993.

Editor’s Note.

Section 153A-239.1 formerly excepted certain counties from the application of this section. Session Laws 1993, c. 62, repealed this section and made G.S. 153A-239.1 statewide in application.

§ 153A-241. Closing public roads or easements.

A county may permanently close any public road or any easement within the county and not within a city, except public roads or easements for public roads under the control and supervision of the Department of Transportation. The board of commissioners shall first adopt a resolution declaring its intent to close the public road or easement and calling a public hearing on the question. The board shall cause a notice of the public hearing reasonably calculated to give full and fair disclosure of the proposed closing to be published once a week for three successive weeks before the hearing, a copy of the resolution to be sent by registered or certified mail to each owner as shown on the county tax records of property adjoining the public road or easement who did not join in the request to have the road or easement closed, and a notice of the closing and public hearing to be prominently posted in at least two places along the road or easement. At the hearing the board shall hear all interested persons who appear with respect to whether the closing would be detrimental to the public interest or to any individual property rights. If, after the hearing, the board of commissioners is satisfied that closing the public road or easement is not contrary to the public interest and (in the case of a road) that no individual owning property in the vicinity of the road or in the subdivision in which it is located would thereby be deprived of reasonable means of ingress and egress to his property, the board may adopt an order closing the road or easement. 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.

Any person aggrieved by the closing of a public road or an easement may appeal the board of commissioners’ order to the appropriate division of the General Court of Justice within 30 days after the day the order is adopted. The court shall hear the matter de novo and has jurisdiction to try the issues arising and to order the road or easement closed upon proper findings of fact by the trier of fact.

No cause of action founded upon the invalidity of a proceeding taken in closing a public road or an easement may be asserted except in an action or proceeding begun within 30 days after the day the order is adopted.

Upon the closing of a public road or an easement pursuant to this section, all right, title, and interest in the right-of-way is vested in those persons owning lots or parcels of land adjacent to the road or easement, and the title of each adjoining landowner, for the width of his abutting land, extends to the center line of the public road or easement. However, the right, title or interest vested in an adjoining landowner by this paragraph remains subject to any public utility use or facility located on, over, or under the road or easement immediately before its closing, until the landowner or any successor thereto pays to the utility involved the reasonable cost of removing and relocating the facility.

History. 1949, c. 1208, ss. 1-3; 1957, c. 65, s. 11; 1965, cc. 665, 801; 1971, c. 595; 1973, c. 507, s. 5; c. 822, s. 1; 1977, c. 464, s. 34; 1995, c. 374, s. 1.

Local Modification.

Durham: 1993, c. 76, s. 1; Guilford: 1979, c. 282; 1981, c. 59.

Legal Periodicals.

For note discussing the disposition of property within the boundaries of a dedicated street when use of the street is discontinued, see 45 N.C.L. Rev. 564 (1967).

CASE NOTES

Editor’s Note. —

Some of the cases cited below were decided under corresponding sections of former law.

Owners of property on a street which is to be partially closed have an interest in the hearing on the request to close the street. In re City of Washington, 15 N.C. App. 505, 190 S.E.2d 309, 1972 N.C. App. LEXIS 1950 , cert. denied, 282 N.C. 152 , 191 S.E.2d 601, 1972 N.C. LEXIS 904 (1972).

Legislative Intent as to Giving Notice. —

The true legislative intent is that if a municipality wishes to close a street, or a part thereof, the notices required must be given. Such an intent if fair and just, because it affords all interested parties an opportunity to be heard. In re City of Washington, 15 N.C. App. 505, 190 S.E.2d 309, 1972 N.C. App. LEXIS 1950 , cert. denied, 282 N.C. 152 , 191 S.E.2d 601, 1972 N.C. LEXIS 904 (1972).

Notice to Adjoining Property Owners Not to Be Limited to Those with Special Interest. —

The statute requires notice by registered mail to the owners of property adjoining the street to be closed who did not join in the request for closing the street. The words of the statute are clear and unequivocal. There is nothing to indicate that only those with a “special interest” must be notified by registered mail. In re City of Washington, 15 N.C. App. 505, 190 S.E.2d 309, 1972 N.C. App. LEXIS 1950 , cert. denied, 282 N.C. 152 , 191 S.E.2d 601, 1972 N.C. LEXIS 904 (1972).

Restrictions on County’s Power to Close a Way of Passage. —

From this section and former G.S. 153A-239 , it was clear that a county did not have the power to close a way of passage which had not been dedicated to the public or in which the public had not acquired rights by prescription. In re Easement of Right of Way, 90 N.C. App. 303, 368 S.E.2d 639, 1988 N.C. App. LEXIS 535 (1988).

The 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, 1965 N.C. LEXIS 1349 (1965), cert. denied, 382 U.S. 822, 86 S. Ct. 50, 15 L. Ed. 2d 67, 1965 U.S. LEXIS 638 (1965), limited, State Highway Com. v. Yarborough, 6 N.C. App. 294, 170 S.E.2d 159, 1969 N.C. App. LEXIS 1177 (1969).

An individual may restrain the wrongful obstruction of a 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, 1965 N.C. LEXIS 1349 (1965), cert. denied, 382 U.S. 822, 86 S. Ct. 50, 15 L. Ed. 2d 67, 1965 U.S. LEXIS 638 (1965), limited, State Highway Com. v. Yarborough, 6 N.C. App. 294, 170 S.E.2d 159, 1969 N.C. App. LEXIS 1177 (1969).

Burden of Proof. —

Pursuant to a hearing statutorily mandated by G.S. 153A-241 , the burden of proof remained on a property owners association to show that a county board correctly found that closing roads in a subdivision was not contrary to the public interest, because the association shouldered the initial burden when the board first convened to determine the issue. Ocean Hill Joint Venture v. Currituck County Bd. of Comm'rs, 178 N.C. App. 182, 630 S.E.2d 714, 2006 N.C. App. LEXIS 1309 (2006).

OPINIONS OF ATTORNEY GENERAL

This section does not apply to closing a portion of a street in a subdivision that has been offered for dedication but never accepted by a public authority nor opened for public use. Subdivision streets are not open to the public as a matter of right until they have been accepted on behalf of the public in a manner recognized by law. County authorities can only proceed under this section to close a road after an offer of dedication has been accepted and public rights have attached. See opinion of Attorney General to William P. Mayo, County Attorney, Beaufort County, 49 N.C. Op. Att'y Gen. 188 (1980).

§ 153A-242. Regulation or prohibition of fishing from bridges.

A county may by ordinance regulate or prohibit fishing from any bridge within the county and not within a city. In addition, the governing board of a city may by resolution permit a county to regulate or prohibit fishing from any bridge within the city. The city may by resolution withdraw its permission to the county ordinance. If it does so, the city shall give written notice to the county of its withdrawal of permission; 30 days after the date the county receives this notice the county ordinance ceases to be applicable within the city. An ordinance adopted pursuant to this section shall provide for signs to be posted on each bridge affected, summarizing the regulation or prohibition pertaining to that bridge.

No person may fish from the drawspan of a regularly attended bridge, and no county may permit any person to do so.

The authority granted by this section is subject to the authority of the Department of Transportation to prohibit fishing from any bridge on the State highway system.

History. 1971, c. 690, ss. 1, 6; 1973, c. 507, s. 5; c. 822, s. 1; 1977, c. 464, s. 34.

§ 153A-243. Authorizing bridges over navigable waters.

A county may grant to persons who between them own or occupy real property on both sides of a body of navigable water lying wholly within the county the right to construct and maintain across the body of water a bridge connecting the property. The board of commissioners shall first adopt a resolution declaring its intent to grant the right and calling a public hearing on the question. The board shall cause the resolution to be published once a week for four successive weeks before the hearing. At the hearing the board shall hear all interested persons who appear with respect to whether the grant would be in the public interest. If, after the hearing, the board finds that the grant is not contrary to the public interest, it may adopt an order granting the right to construct the bridge. The board may place reasonable terms and conditions, including time limitations, on the grant.

A person aggrieved by a grant may appeal the board of commissioners’ order to the appropriate division of the General Court of Justice within 30 days after the day it is adopted. The court shall hear the matter de novo and has jurisdiction to try the issues arising and to grant the right to construct the bridge.

Before construction may be commenced on any bridge authorized pursuant to this section, the bridge’s location and plans must be submitted to and approved by the Chief of Engineers of the United States Army and the Secretary of the Army.

History. Pub. Loc. 1191, c. 227; C.S., s. 1297; 1973, c. 822, s. 1.

§ 153A-244. Railroad revitalization programs.

Any county is authorized to participate in State and federal railroad revitalization programs necessary to insure continued or improved rail service to the county, as are authorized in Article 2D of Chapter 136 of the General Statutes. County participation includes the authority to enter into contracts with the North Carolina Department of Transportation to provide for the nonfederal matching funds for railroad revitalization programs. Such funds may be comprised of State funds distributed to the counties under the provisions of G.S. 136-44.38 and of county funds. County governments are also authorized to levy local property tax for railroad revitalization programs subject to G.S. 153A-149(d). County funds for any project may not exceed ten percent (10%) of total project costs.

History. 1979, c. 658, s. 4.

Legal Periodicals.

For note as to sheriff’s liability for prisoner suicide, in light of Helmly v. Bebber, 77 N.C. App. 275, 335 S.E.2d 182 (1985), see 64 N.C.L. Rev. 1520 (1986).

§ 153A-245. Regulation of golf carts on streets, roads, and highways.

Notwithstanding the provisions of G.S. 20-50 and G.S. 20-54 , a county 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 the county that is located in any unincorporated areas of the county or on any property owned or leased by the county.
By ordinance, a county 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. 1.

Editor’s Note.

Session Laws 2009-459, s. 11, provides in part: “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.”

§ 153A-246. Use of photographs or videos recorded by automated school bus safety cameras.

Definitions. — The following definitions apply in this section:
1. Automated school bus safety camera. — As defined in G.S. 115C-242.1 .
2. Officials or agents. — This term includes a local board of education located within the county or a private vendor contracted with under G.S. 115C-242.1 .
3. School bus. — As used in G.S. 20-217 .
Civil Enforcement. — A county may adopt an ordinance for the civil enforcement of G.S. 20-217 by means of an automated school bus safety camera installed and operated on any school bus located within that county. An ordinance adopted pursuant to this section shall not apply to any violation of G.S. 20-217 that results in injury or death. Notwithstanding the provisions of G.S. 14-4 , in the event that a county adopts an ordinance pursuant to this section, a violation of the ordinance shall not be an infraction. An ordinance authorized by this subsection shall provide all of the following:
1. The notice of the violation shall be given in the form of a citation and shall be received by the registered owner of the vehicle no more than 60 days after the date of the violation.
2. The registered owner of a vehicle shall be responsible for a violation unless the vehicle was, at the time of the violation, in the care, custody, or control of another person or unless the citation was not received by the registered owner within 60 days after the date of the violation.
3. A person wishing to contest a citation shall, within 30 days after receiving the citation, deliver to the officials or agents of the county that issued the citation a written request for a hearing accompanied by an affidavit stating the basis for contesting the citation, including, as applicable:
  1. The name and address of the person other than the registered owner who had the care, custody, or control of the vehicle.
  2. A statement that the vehicle involved was stolen at the time of the violation, with a copy of any insurance report or police report supporting this statement.
  3. A statement that the citation was not received within 60 days after the date of the violation, and a statement of the date on which the citation was received.
  4. A copy of a criminal pleading charging the person with a violation of G.S. 20-217 arising out of the same facts as those for which the citation was issued.
4. The citation shall include all of the following:
  1. The date and time of the violation, the location of the violation, the amount of the civil monetary penalty imposed, and the date by which the civil monetary penalty shall be paid or contested.
  2. An image taken from the recorded image showing the vehicle involved in the violation.
  3. A copy of a statement or electronically generated affirmation of a law enforcement officer employed by a law enforcement agency with whom an agreement has been reached pursuant to G.S. 115C-242.1(c) stating that, based upon inspection of the recorded images, the owner’s motor vehicle was operated in violation of the ordinance adopted pursuant to this subsection.
  4. Instructions explaining the manner in which, and the time within which, liability under the citation may be contested pursuant to subdivision (3) of this subsection.
  5. A warning that failure to pay the civil monetary penalty or to contest liability in a timely manner shall waive any right to contest liability and shall result in a late penalty of one hundred dollars ($100.00), in addition to the civil monetary penalty.
  6. In citations issued to the registered owner of the vehicle, a warning that failure to pay the civil monetary penalty or to contest liability in a timely manner shall result in refusal by the Division of Motor Vehicles to register the motor vehicle, in addition to imposition of the civil monetary penalty and late penalty.
5. Violations of the ordinance shall be deemed a noncriminal violation for which a civil penalty shall be assessed and for which no points authorized by G.S. 20-16(c) and no insurance points authorized by G.S. 58-36-65 shall be assigned to the registered owner or driver of the vehicle. The amount of such penalty shall be four hundred dollars ($400.00) for the first offense, seven hundred fifty dollars ($750.00) for the second violation, and one thousand dollars ($1,000) for each subsequent violation of the ordinance.
6. If a registered owner provides an affidavit that the vehicle was, at the time of the violation, in the care, custody, or control of another person or company, the identified person or company may be issued a citation complying with the requirements of subdivision (4) of this subsection.
7. The citation shall be processed by officials or agents of the county and shall be served by any method permitted for service of process pursuant to G.S. 1A-1 , Rule 4 of the North Carolina Rules of Civil Procedure, or by first-class mail to the address of the registered owner of the vehicle provided on the motor vehicle registration or, as applicable, to the address of the person identified in an affidavit submitted by the registered owner of the vehicle.
8. If the person to whom a citation is issued makes a timely request for a hearing pursuant to subdivision (3) of this subsection, a summons shall be issued by any method permitted for service of process pursuant to G.S. 1A-1 , Rule 4 of the North Carolina Rules of Civil Procedure, directing the person to appear at the place and time specified in the summons in order to contest the citation at an administrative hearing.
9. A citation recipient who, within 30 days after receiving the citation, fails either to pay the civil penalty or to request a hearing to contest the citation shall have waived the right to contest responsibility for the violation and shall be subject to a late penalty of one hundred dollars ($100.00) in addition to the civil penalty assessed under this subsection.
10. The county shall institute a nonjudicial administrative hearing to hear contested citations or penalties issued or assessed under this section. The decision on a contested citation shall be rendered in writing within five days after the hearing and shall be served upon the person contesting the citation by any method permitted for service of process pursuant to G.S. 1A-1, Rule 4 of the North Carolina Rules of Civil Procedure. If the decision is adverse to the person contesting the citation, the decision shall contain instructions explaining the manner and the time within which the decision may be appealed pursuant to subdivision (11) of this subsection.
11. A person may appeal to the district court division of the General Court of Justice from any adverse decision on a contested citation by filing notice of appeal in the office of the clerk of superior court. Enforcement of an adverse decision shall be stayed pending the outcome of a timely appeal. Except as otherwise provided in this subdivision, appeal shall be in accordance with the procedure set forth in Article 19 of Chapter 7A of the General Statutes applicable to appeals from the magistrate to the district court. For purposes of calculating the time within which any action must be taken to meet procedural requirements of the appeal, the date upon which the person contesting the citation is served with the adverse decision shall be deemed to be the date of entry of judgment.
12. In the event a person is charged in a criminal pleading with a violation of G.S. 20-217, all of the following shall apply:
  1. The charging law enforcement agency shall provide written notice to the county office responsible for processing civil citations pursuant to subdivision (7) of subsection (b) of this section containing the name and address of the person charged with violation of G.S. 20-217 and the date of the violation.
  2. After receiving notice pursuant to this subdivision that a person has been charged in a criminal pleading with a violation of G.S. 20-217, the county shall not impose a civil penalty against that person arising out of the same facts as those for which the person was charged in the criminal pleading.
  3. The county shall issue a full refund of any civil penalty payment received from a person who was charged in a criminal pleading with a violation of G.S. 20-217 if the civil penalty arose out of the same facts as those for which that person was charged in the criminal pleading, together with interest at the legal rate as provided by G.S. 24-1 from the date the penalty was paid until the date of refund.
13. If a citation is not contested pursuant to subdivision (3) of this subsection, payment of the civil penalty is due within 30 days after receipt of the citation. If the citation is contested, and the result of the administrative hearing held pursuant to subdivision (10) of this subsection is a decision adverse to the citation recipient, then payment is due within 30 days after receipt of the adverse decision, unless the citation recipient appeals the adverse decision pursuant to subdivision (11) of this subsection. If the adverse decision is appealed, and if the final decision on appeal is adverse to the citation recipient, then payment of the civil penalty is due within 30 days after the citation recipient receives notice of the final adverse decision on appeal.
14. If the registered owner of a motor vehicle who receives a citation fails to pay the civil penalty when due, the Division of Motor Vehicles shall refuse to register the motor vehicle for the owner in accordance with G.S. 20-54(11). The county may establish procedures for providing notice to the Division of Motor Vehicles and for the collection of these penalties and may enforce the penalties by civil action in the nature of debt.
15. The county shall provide each law enforcement agency within its jurisdiction with the name and address of the county official to whom written notice of persons charged with violation of G.S. 20-217 should be given pursuant to subdivision (12) of this subsection.
Notice. — An automated school bus safety camera installed on a school bus must be identified by appropriate warning signs conspicuously posted on the school bus. All warning signs shall be consistent with a statewide standard adopted by the State Board of Education in conjunction with local boards of education that install and operate automated school bus safety cameras on their school buses.
Application. — Nothing in this section shall be construed to do any of the following:
1. Require the installation and operation of automated school bus safety cameras on a school bus.
2. Prohibit the use and admissibility of any photograph or video recorded by an automated school bus safety camera in any criminal proceeding alleging a violation of G.S. 20-217 .
3. Prohibit the imposition of penalties, including the assignment of points authorized by G.S. 20-16(c) and insurance points authorized by G.S. 58-36-65 , on any registered owner or driver of the vehicle convicted of a misdemeanor or felony violation of G.S. 20-217 .
Criminal Prosecution Encouraged. — The General Assembly of North Carolina encourages criminal prosecution for violation of G.S. 20-217 whenever photographs or videos recorded by an automated school bus safety camera provide evidence sufficient to support such prosecution.
A county that adopts an ordinance as provided in this section, shall maintain records of all violations of that ordinance for which a civil penalty is assessed. Upon request, the county shall provide at least five years of those records to the North Carolina Child Fatality Task Force and the North Carolina General Assembly.

History. 2017-188, ss. 1, 5.

Editor’s Note.

Session Laws 2017-188, s. 5, effective July 25, 2017, was codified as subsection (f) of this section and set out in the form above at the direction of the Revisor of Statutes.

Article 13. Health and Social Services.

Part 1. Health Services.

§ 153A-247. Provision for public health and mental health.

A county may provide for and regulate the public health pursuant to Chapter 130A of the General Statutes and any other law authorizing local public health activities and may provide mental health, developmental disabilities, and substance abuse programs pursuant to Chapter 122C of the General Statutes.

History. 1973, c. 822, s. 1; 1985, c. 589, s. 58; 2018-47, s. 6(d).

County Medicaid Cost Share.

Session Laws 2003-284, ss. 10.22(a) and (b), provide: “Effective July 1, 2000, the county share of the cost of Medicaid services currently and previously provided by area mental health authorities shall be increased incrementally each fiscal year until the county share reaches fifteen percent (15%) of the nonfederal share by State fiscal year 2009-2010.

“Effective July 1, 2000, the county share of the cost of Medicaid Personal Care Services paid to adult care homes shall be decreased incrementally each fiscal year until the county share reaches fifteen percent (15%) of the nonfederal share by State fiscal year 2009-2010.”

Session Laws 2005-276, ss. 10.13(a) and (b), provide: “Effective July 1, 2000, the county share of the cost of Medicaid services currently and previously provided by area mental health authorities shall be increased incrementally each fiscal year until the county share reaches fifteen percent (15%) of the nonfederal share by State fiscal year 2009-2010.

Editor’s Note.

Session Laws 2005-276, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2005.’ ”

Session Laws 2005-276, s. 46.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2005-2007 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2005-2007 fiscal biennium.”

Session Laws 2005-276, s. 46.5, is a severability clause.

Session Laws 2018-47, s. 15, provides: “This act does not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability.”

Effect of Amendments.

Session Laws 2018-47, s. 6(d), effective June 22, 2018, substituted “mental health, developmental disabilities” for “mental health[,] mental retardation” in the middle.

CASE NOTES

Boards of county commissioners can establish public hospitals for their several counties in cases of necessity and make rules, regulations and bylaws for preventing the spread of contagious and infectious diseases and for taking care of those afflicted thereby, the same not being inconsistent with the laws of the State. Prichard v. Board of Comm'rs, 126 N.C. 908 , 36 S.E. 353, 1900 N.C. LEXIS 336 (1900) (decided under former law).

A board of county commissioners cannot burn a residence to prevent the spread of contagious and infectious diseases. A proper disinfection would be the extent of their powers in respect to property thus tainted or infected. Prichard v. Board of Comm'rs, 126 N.C. 908 , 36 S.E. 353, 1900 N.C. LEXIS 336 (1900) (decided under former law).

§ 153A-248. Health-related appropriations.

A county may appropriate revenues not otherwise limited as to use by law to any of the following:
1. A licensed facility for individuals with intellectual or other developmental disabilities, whether publicly or privately owned, to assist in maintaining and developing facilities and treatment, if the board of commissioners determines that the care offered by the facility is available to residents of the county. The facility need not be located within the county.
2. A sheltered workshop or other private, nonprofit, charitable organization offering work or training activities to individuals with physical disabilities or intellectual or other developmental disabilities, and may otherwise assist the organization.
3. An orthopedic hospital, whether publicly or privately owned, to assist in maintaining and developing facilities and treatment, if the board of commissioners determines that the care offered by the hospital is available to residents of the county. The hospital need not be located within the county.
4. A training center or other private, nonprofit, charitable organization offering education, treatment, rehabilitation, or developmental programs to individuals with physical disabilities or intellectual or other developmental disabilities, and may otherwise assist the organizations. Such action, however, shall be with the concurrence of the county board of education. Within 30 days after receipt of the request for concurrence, the county board of education shall notify the board of county commissioners whether it concurs, and should it fail to so notify the board of county commissioners within this period, it shall be deemed to have concurred.
The ordinance making the appropriation shall state specifically what the appropriation is to be used for, and the board of commissioners shall require that the recipient account for the appropriation at the close of the fiscal year.

History. 1967, cc. 464, 1074; 1969, c. 802; 1973, c. 822, s. 1; 1977, c. 474; 1979, c. 1074, s. 2; 2019-76, s. 31.

Editor’s Note.

Session Laws 2019-76, s. 34, made the amendments by Session Laws 2019-76, s. 31, effective October 1, 2019, and applicable to proceedings commenced or services rendered on or after that date.

Effect of Amendments.

Session Laws 2019-76, s. 31, effective October 1, 2019, in subdivision (a)(1), substituted “individuals with intellectual or other developmental disabilities” for “the mentally retarded”; in subdivisions (a)(2) and (4), substituted “individuals with physical disabilities or intellectual or other developmental disabilities” for “the physically or mentally handicapped”; and made stylistic changes. 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).

CASE NOTES

Subdivision (a)(2) Is Inapplicable to Learning-Disabled Children. —

While the general terms of subdivision (a)(2) of this section could conceivably be construed to address the problem of inadequate educational opportunities for learning-disabled children in the school system, it is evident that the specific remedies prescribed in former G.S. 115-315.7, et seq., 115-377, and 115-384 were controlling. Hughey v. Cloninger, 297 N.C. 86 , 253 S.E.2d 898, 1979 N.C. LEXIS 1141 (1979).

Subdivision (a)(2) cannot be reasonably interpreted to encompass schools for dyslexic children. Hughey v. Cloninger, 297 N.C. 86 , 253 S.E.2d 898, 1979 N.C. LEXIS 1141 (1979).

Appropriation by Gaston County to the Dyslexia School of North Carolina was not authorized by subdivision (a)(2) of this section. Hughey v. Cloninger, 297 N.C. 86 , 253 S.E.2d 898, 1979 N.C. LEXIS 1141 (1979).

§ 153A-249. Hospital services.

A county may provide and support hospital services pursuant to Chapters 122C, 131 and 131E of the General Statutes.

History. 1868, c. 20, s. 8; Code, s. 707; Rev., s. 1318; C.S., s. 1297; 1923, c. 81; 1973, c. 822, s. 1; 1985, c. 589, s. 59.

Editor’s Note.

Chapter 131, referred to in this section, was repealed by Session Laws 1983, c. 775, s. 1. As to health care facilities and services, see now Chapter 131E.

CASE NOTES

County commissioners are not liable for failure to establish hospitals. Bell v. Commissioners of Johnston County, 127 N.C. 85 , 37 S.E. 136, 1900 N.C. LEXIS 27 (1900) (decided under former law).

Funds paid to memorial hospital by city and county under contract did not make the hospital a State agency subject to federal interdiction. Eaton v. Board of Managers, 261 F.2d 521, 1958 U.S. App. LEXIS 3292 (4th Cir. 1958), cert. denied, 359 U.S. 984, 79 S. Ct. 941, 3 L. Ed. 2d 934, 1959 U.S. LEXIS 1102 (1959) (decided under former law).

OPINIONS OF ATTORNEY GENERAL

As to duty of county to pay for hospitalization of prisoner in county jail, see opinion of Attorney General to Mr. Charles W. Ogletree, Tyrrell County Attorney, 40 N.C. Op. Att'y Gen. 352 (1970).

§ 153A-250. Ambulance services.

A county may by ordinance franchise ambulance services provided in the county to the public at large, whether the service is based inside or outside the county. The ordinance may:
1. Grant franchises to ambulance operators on terms set by the board of commissioners;
2. Make it unlawful to provide ambulance services or to operate an ambulance in the county without such a franchise;
3. Limit the number of ambulances that may be operated within the county;
4. Limit the number of ambulances that may be operated by each franchised operator;
5. Determine the areas of the county that may be served by each franchised operator;
6. Establish and from time to time revise a schedule of rates, fees, and charges that may be charged by franchised operators;
7. Set minimum limits of liability insurance for each franchised operator;
8. Establish other necessary regulations consistent with and supplementary to any statute or any Department of Health and Human Services regulation relating to ambulance services.Before it may adopt an ordinance pursuant to this subsection, the board of commissioners must first hold a public hearing on the need for ambulance services. The board shall cause notice of the hearing to be published once a week for two successive weeks before the hearing. After the hearing the board may adopt an ordinance if it finds that to do so is necessary to assure the provision of adequate and continuing ambulance service and to preserve, protect, and promote the public health, safety, and welfare.If a person, firm, or corporation is providing ambulance services in a county or any portion thereof on the effective date of an ordinance adopted pursuant to this subsection, the person, firm, or corporation is entitled to a franchise to continue to serve that part of the county in which the service is being provided. The board of commissioners shall determine whether the person, firm, or corporation so entitled to a franchise is in compliance with Chapter 131E, Article 7; and if that is the case, the board shall grant the franchise.
In lieu of or in addition to adopting an ordinance pursuant to subsection (a) of this section, a county may operate or contract for ambulance services in all or a portion of the county. A county may appropriate for ambulance services any revenues not otherwise limited as to use by law, and may establish and from time to time revise schedules of rates, fees, charges, and penalties for the ambulance services. A county may operate its ambulance services as a line department or may create an ambulance commission and vest in it authority to operate the ambulance services.
A city may adopt an ordinance pursuant to and under the procedures of subsection (a) of this section and may operate or contract for ambulance services pursuant to subsection (b) of this section if (i) the county in which the city is located has adopted a resolution authorizing the city to do so or (ii) the county has not, within 180 days after being requested by the city to do so, provided for ambulance services within the city pursuant to this section. Any action taken by a city pursuant to this subsection shall apply only within the corporate limits of the city.If a city is exercising a power granted by this subsection, the county in which the city is located may thereafter take action to provide for ambulance service within the city, either under subsection (a) or subsection (b) of this section, only after having given to the city 180 days’ notice of the county’s intention to take action. At the end of the 180 days, the city’s authority under this subsection is preempted by the county.
A county or a city may contract with a franchised ambulance operator or with another county or city for ambulance service to be provided upon the call of a department or agency of the county or city. A county may contract with a franchised ambulance operator for transportation of indigents or persons certified by the county department of social services to be public assistance recipients.
Each county or city operating ambulance services is subject to the provisions of Chapter 131E, Article 7 (“Regulation of Emergency Medical Services”).

History. 1967, c. 343, s. 5; 1969, c. 147; 1973, c. 476, s. 128; c. 822, s. 1; 1997-443, s. 11A.118(a); 2002-159, s. 51.

Cross References.

As to the providing of emergency medical, rescue and ambulance service by rural fire protection districts, see G.S. 69-25.4 .

CASE NOTES

Editor’s Note. —

Many of the cases cited below were decided under corresponding sections of former law.

Constitutionality of Liability Insurance Provision. —

Subdivision (a6) of former G.S. 153-9(58), which was identical to subdivision (a)(7) of this section, was not void as being in contravention of constitutional prohibitions against monopolies and exclusive emoluments, since it did not provide that liability insurance should be the exclusive method of indemnifying persons or property against loss due to negligent operation of the ambulance service. Whaley v. Lenoir County, 5 N.C. App. 319, 168 S.E.2d 411, 1969 N.C. App. LEXIS 1340 (1969).

Regulation of ambulance service is a valid and legitimate exercise of the police power. Whaley v. Lenoir County, 5 N.C. App. 319, 168 S.E.2d 411, 1969 N.C. App. LEXIS 1340 (1969).

Authority of County Cannot Exceed That Given by Enabling Act. —

The authority of the county to regulate ambulance service, whether it be by franchise, permit, certificate of public convenience or necessity, license or whatever name is given, can only come from and cannot exceed that given by the enabling act. Whaley v. Lenoir County, 5 N.C. App. 319, 168 S.E.2d 411, 1969 N.C. App. LEXIS 1340 (1969).

For case holding county ordinance regulating ambulance service unconstitutional, see Whaley v. Lenoir County, 5 N.C. App. 319, 168 S.E.2d 411, 1969 N.C. App. LEXIS 1340 (1969).

County-operated ambulance service was entitled to governmental immunity, even though it charged a fee to help defray operating costs. McIver v. Smith, 134 N.C. App. 583, 518 S.E.2d 522, 1999 N.C. App. LEXIS 864 (1999).

Contract with Funeral Home for Ambulance Services. —

In the absence of a vote or of authority expressly granted by the legislature, a county may not legally contract with a funeral home for ambulance services, and its attempt to do so prior to the enactment of an enabling statute was ultra vires. Moody v. Transylvania County, 271 N.C. 384 , 156 S.E.2d 716, 1967 N.C. LEXIS 1201 (1967).

The grandfather clause in this section is not self-executing. Nursing Registry, Inc. v. Eastern N.C. Regional Emergency Medical Servs. Consortium, Inc., 959 F. Supp. 298, 1997 U.S. Dist. LEXIS 3019 (E.D.N.C. 1997).

Application Required. —

In order to notify the board of commissioners that one is currently providing ambulance services, and in order to give the board an opportunity to affirmatively grant a franchise to continue doing business, it is necessary that an ambulance company actually submit an application that can be granted. Nursing Registry, Inc. v. Eastern N.C. Regional Emergency Medical Servs. Consortium, Inc., 959 F. Supp. 298, 1997 U.S. Dist. LEXIS 3019 (E.D.N.C. 1997).

OPINIONS OF ATTORNEY GENERAL

Former G.S. 153-9(58) did not authorize the holding of a “straw vote” election, or any type of referendum to determine whether ambulance services should be provided or continued. Whether ambulance service should be provided or continued is a matter within the discretion of the board of county commissioners. See opinion of Attorney General to Mr. E. Ray Etheridge, Camden County Attorney, 40 N.C. Op. Att'y Gen. 74 (1969).

See opinion of Attorney General to Mr. Joe O. Brewer, 43 N.C. Op. Att'y Gen. 157 (1973).

§§ 153A-251 through 153A-254.

Reserved for future codification purposes.

Part 2. Social Service Provisions.

§ 153A-255. Authority to provide social service programs.

Each county shall provide social service programs pursuant to Chapter 108A and Chapter 111 and may otherwise undertake, sponsor, organize, engage in, and support other social service programs intended to further the health, welfare, education, employment, safety, comfort, and convenience of its citizens.

History. 1868, c. 20, s. 8; Code, s. 707; Rev., s. 1318; C.S., s. 1297; 1973, c. 822, s. 1; 1981, c. 562, s. 12; 1997-443, s. 12.13.

Legal Periodicals.

For survey of 1980 constitutional law, see 59 N.C.L. Rev. 1116 (1981).

CASE NOTES

Editor’s Note. —

Some of the cases cited below were decided under corresponding sections of former law.

Appropriation for Dyslexia School Not Authorized. —

An appropriation by the Gaston County Board of Commissioners to the Dyslexia School of North Carolina was not authorized by either G.S. 153A-149(c)(30) or this section. Hughey v. Cloninger, 297 N.C. 86 , 253 S.E.2d 898, 1979 N.C. LEXIS 1141 (1979).

Tax Levy to Fund Medically Unnecessary Abortions Ultra Vires and Void. —

This section does not give counties the underlying authority to levy taxes pursuant to G.S. 153A-149(c)(30) to fund medically unnecessary abortions, since the authority conferred upon counties to provide social services pursuant to this section is limited to providing the poor with the basic necessities of life, and a medically unnecessary abortion is not a basic necessity of life; therefore, a county exceeds its statutorily conferred power in levying a tax to fund medically unnecessary abortions, and the tax levy is ultra vires and void. Stam v. State, 302 N.C. 357 , 275 S.E.2d 439, 1981 N.C. LEXIS 1055 (1981).

Ascertainment of Indigents Entitled to Support. —

It is the exclusive right of the legislature to determine and declare by whom and how the indigent of the State entitled to support shall be ascertained, and from what fund and by whom allowances for their support shall be made. Board of Educ. v. Commissioners of Bladen, 113 N.C. 379 , 18 S.E. 661, 1893 N.C. LEXIS 87 (1893).

The legislature may delegate authority to county officials to provide and care for one class of the indigent or unfortunate inhabitants of the State, and to disburse a part of the fund devoted to the support of the poor, by appropriating it more directly to another class, whose wants, in the opinion of the lawmakers, can be best supplied through public agencies of a different kind. Board of Educ. v. Commissioners of Bladen, 113 N.C. 379 , 18 S.E. 661, 1893 N.C. LEXIS 87 (1893).

No Recovery from County for Officiously Providing for Pauper. —

Although a person may be a proper subject of county charge, anyone who officiously provides for such person cannot recover the amount of his outlay from the county. Copple v. Commissioners of Davie County, 138 N.C. 127 , 50 S.E. 574 (1905).

Express Contract or Express Request for Service Necessary to Bind County. —

In order to make a binding pecuniary obligation on the county, there must be an express contract to that effect, or the service must be done at the express request of the proper county officer or agent. Copple v. Commissioners of Davie County, 138 N.C. 127 , 50 S.E. 574 (1905).

Thirty-Year Contract Upheld. —

Where the General Assembly authorized a county to enter into a contract with a public hospital for the care of its indigent sick for a period of 30 years, and the board of commissioners of the county, in the exercise of the discretion vested in the board by the statute, agreed to contract for that period, the contract would not be held invalid because of its duration. Martin v. Board of Comm'rs, 208 N.C. 354 , 180 S.E. 777, 1935 N.C. LEXIS 417 (1935).

For case holding contracts for the loan of money made by the late county courts for the support of paupers ultra vires, and therefore void, see Daniel v. Board of Comm'rs, 74 N.C. 494 , 1876 N.C. LEXIS 130 (1876).

OPINIONS OF ATTORNEY GENERAL

County-owned pharmacy which is operated with the approval of the county commissioners for the purpose of dispensing drugs to needy persons may be a participant in the State Board of Social Services’ (now Department of Human Resources’) drug program under which the board (department) makes payments to pharmacies for drugs dispensed to welfare recipients. See opinion of Attorney General to Mr. Emmett L. Sellers, Director, Division of Medical Services, State Department of Social Services, 40 N.C. Op. Att'y Gen. 704 (1969).

§ 153A-256. County home.

A county may establish, erect, acquire, lease as lessor or lessee, equip, support, operate, and maintain a county home for aged and infirm persons and may appropriate funds for these purposes.

The superintendent of each county home shall make an annual report on its operation to the board of commissioners of the county operating the home and to the Department of Health and Human Services. The report shall contain any information that the board of commissioners and the Department of Health and Human Services, respectively, require, and the Department may provide forms for this report.

History. 1876-7, c. 277, s. 3; Code, ss. 3541, 3543; 1891, c. 138; Rev., ss. 1328, 1329; 1919, c. 72; C.S., ss. 1336, 1337, 1338; 1961, c. 139, s. 1; 1973, c. 476, s. 138; c. 822, s. 1; 1997-443, s. 11A.118(a).

CASE NOTES

Three-year statute of limitations applies to an action brought by a county against an inmate of a county home to secure reimbursement or indemnity for sums expended for her upkeep in the home. Guilford County v. Hampton, 224 N.C. 817 , 32 S.E.2d 606, 1945 N.C. LEXIS 229 (1945) (decided under former law).

§ 153A-257. Legal residence for social service purposes.

Legal residence in a county determines which county is responsible (i) for financial support of a needy person who meets the eligibility requirements for a public assistance or medical care program offered by the county or (ii) for other social services required by the person.Legal residence in a county is determined as follows:
1. Except as modified below, a person has legal residence in the county in which he resides.
2. If a person is in a hospital, mental institution, nursing home, boarding home, confinement facility, or similar institution or facility, he does not, solely because of that fact, have legal residence in the county in which the institution or facility is located.
3. A minor has the legal residence of the parent or other relative with whom he resides. If the minor does not reside with a parent or relative and is not in a foster home, hospital, mental institution, nursing home, boarding home, educational institution, confinement facility, or similar institution or facility, he has the legal residence of the person with whom he resides. Any other minor has the legal residence of his mother, or if her residence is not known then the legal residence of his father; if his mother’s or father’s residence is not known, the minor is a legal resident of the county in which he is found.
A legal residence continues until a new one is acquired, either within or outside this State. When a new legal residence is acquired, all former legal residences terminate.
This section is intended to replace the law defining “legal settlement.” Therefore any general law or local act that refers to “legal settlement” is deemed to refer to this section and the rules contained herein.
If two or more county departments of social services disagree regarding the legal residence of a minor in a child abuse, neglect, or dependency case, any one of the county departments of social services may refer the issue to the Department of Health and Human Services, Division of Social Services, for resolution. The Director of the Division of Social Services or the Director’s designee shall review the pertinent background facts of the case and shall determine which county department of social services shall be responsible for providing protective services and financial support for the minor in question.

History. 1777, c. 117, s. 16, P.R; R.C., c. 86, s. 12; Code, s. 3544; Rev., s. 1333; C.S., s. 1342; 1931, c. 120; 1943, c. 753, s. 2; 1959, c. 272; 1973, c. 822, s. 1; 2003-304, s. 7.

CASE NOTES

Editor’s Note. —

Most of the cases cited below were decided under corresponding sections of former law.

Each County Charged with Support of Its Poor. —

It is the manifest purpose of the law in regard to pauper settlements to charge each county with the support of its own poor. Commissioners of County of Burke v. Commissioners of County of Buncombe, 101 N.C. 520 , 8 S.E. 176, 1888 N.C. LEXIS 88 (1888).

Jurisdiction. —

N.C. Gen. Stat. § 153A-257(a) does not purport to limit the trial court’s subject matter jurisdiction in juvenile abuse, neglect, and dependency cases. In re M.R.J., 2021-NCSC-112, 378 N.C. 648 , 862 S.E.2d 639, 2021- NCSC-112, 2021 N.C. LEXIS 927 (2021).

Liability of County Dependent on Residence or Settlement. —

Although in most cases the county of domicile and the county of settlement are the same, yet they are sometimes different, and in such case the county of settlement is chargeable with the maintenance of an illegitimate child. State v. Elam, 61 N.C. 460 , 1868 N.C. LEXIS 39 (1868).

The liability of a county for the support of a pauper does not depend upon the law of domicile or citizenship, but upon that of residence or settlement. Commissioners of County of Burke v. Commissioners of County of Buncombe, 101 N.C. 520 , 8 S.E. 176, 1888 N.C. LEXIS 88 (1888).

The legal settlement of the pauper determines the liability. Board of Comm'rs of McDowell County v. Board of Comm'rs of Forsyth County, 121 N.C. 295 , 28 S.E. 412, 1897 N.C. LEXIS 228 (1897).

Liability for Illegitimate Child Fixed by Mother’s Settlement. —

The liability of the county for the maintenance of an illegitimate child is fixed not by its birth but by the settlement of its mother at the time of its birth. State v. Elam, 61 N.C. 460 , 1868 N.C. LEXIS 39 (1868).

An illegitimate child, who has not gained a new settlement by a year’s residence in some other county, is, for the purpose of being apprenticed, subject to the jurisdiction of the court of that county in which its mother was settled at the time of its birth. Ferrell v. Boykin, 61 N.C. 9 , 1866 N.C. LEXIS 29 (1866).

Settlement Not Ipso Facto Obtained by Birth. —

Neither legitimate nor illegitimate children shall gain a settlement by birth in the county in which they may be born, if neither of their parents had any settlement therein. State v. Elam, 61 N.C. 460 , 1868 N.C. LEXIS 39 (1868).

What County Liable When Mother of Illegitimate Child Is Without Settlement. —

An illegitimate child, born in this State of a mother who had not resided in it for 12 months, as required by the statute then in effect, was chargeable for maintenance upon the county in which it was born. Since the statute did not contemplate the case of foreign paupers, the question of settlement was left as at common law. State ex rel. Merritt v. McQuaig, 63 N.C. 550 , 1869 N.C. LEXIS 135 (1869).

A legal settlement continues until a new one is acquired. Board of Comm'rs of McDowell County v. Board of Comm'rs of Forsyth County, 121 N.C. 295 , 28 S.E. 412, 1897 N.C. LEXIS 228 (1897).

Recovery for Medical Services Furnished Pauper Injured in Another County. —

Where a pauper, temporarily absent from the county where he had a “legal settlement,” was so disabled as to require immediate medical services and was furnished by the authorities of another county with such attention and board, the latter was entitled to recover the expenses thereof from the county where the pauper had his settlement. Board of Comm'rs of McDowell County v. Board of Comm'rs of Forsyth County, 121 N.C. 295 , 28 S.E. 412, 1897 N.C. LEXIS 228 (1897).

OPINIONS OF ATTORNEY GENERAL

As to legal settlement of mental incompetent for welfare payment purposes, see opinion of Attorney General to Mr. Joseph P.B. McCauley, Director, Gaston County Department of Social Services, 40 N.C.A.G. 678 (1970), issued under former law.

See opinion of Attorney General to Mr. Joe Freeman Britt, Robeson County Attorney, 41 N.C.A.G. 197 (1971), issued under former law.

Daughter reaching majority and confined in institution retained settlement in county from which she came although her parent moved to another county while she was confined. See opinion of Attorney General to Mrs. Bing Lau, Social Worker, Murdoch Center, 41 N.C.A.G. 472 (1971), issued under former law.

§ 153A-258.

Reserved for future codification purposes.

Part 3. Health and Social Services Contracts.

§ 153A-259. Counties authorized to contract with other entities for health and social services.

A county is authorized to contract with any governmental agency, person, association, or corporation for the provision of health or social services provided that the expenditure of funds pursuant to such contracts shall be for the purpose for which the funds were appropriated and is not otherwise prohibited by law.

History. 1979, 2nd Sess., c. 1094, s. 2.

Editor’s Note.

The preamble to Session Laws 1979, 2nd Sess., c. 1094, cited as the reason for the enactment of the act the case of Hughey v. Cloninger, 297 N.C. 86 , 253 S.E.2d 898 (1979), requiring statutory authority for third-party contracts.

§ 153A-260.

Reserved for future codification purposes.

Article 14. Libraries.

§ 153A-261. Declaration of State policy.

The General Assembly recognizes that the availability of adequate, modern library services and facilities is in the general interest of the people of North Carolina and a proper concern of the State and of local governments. Therefore it is the policy of the State of North Carolina to promote the establishment and development of public library services throughout the State.

History. 1973, c. 822, s. 1.

CASE NOTES

Operation of a public library meets the test of “governmental function.” Seibold v. Kinston-Lenoir County Pub. Library, 264 N.C. 360 , 141 S.E.2d 519, 1965 N.C. LEXIS 1185 (1965) (decided under former law).

§ 153A-262. Library materials defined.

For purposes of this Article, the phrase “library materials” includes, without limitation, books, plates, pictures, engravings, maps, magazines, pamphlets, newspapers, manuscripts, films, transparencies, microforms, recordings, or other specimens, works of literature, or objects of art, historical significance, or curiosity.

History. 1953, c. 721; 1963, c. 945; 1971, c. 698, s. 3; 1973, c. 822, s. 1.

§ 153A-263. Public library systems authorized.

A county or city may:

Establish, operate, and support public library systems;
Set apart lands and buildings for a public library system;
Acquire real property for a public library system by gift, grant, purchase, lease, exercise of the power of eminent domain, or any other lawful method. If a library board of trustees is appointed, a county or city shall, before acquiring real property by purchase, lease, or exercise of the power of eminent domain, seek the recommendations of the board of trustees regarding the proposed acquisition;
Provide, acquire, construct, equip, operate, and maintain buildings and other structures for a public library system;
Acquire library materials by purchase, exchange, devise, gift, or any other lawful method;
Appropriate funds to carry out the provisions of this Article;
Accept any gift, grant, lease, loan, exchange, or devise of real or personal property for a public library system. Devises, grants, and gifts may be accepted and held subject to any term or condition that may be imposed by the grantor or trustor, except that no county or city may accept or administer any term or condition that requires it to discriminate among its citizens on the basis of race, sex, or religion.

History. 1953, c. 721; 1963, c. 945; 1971, c. 698, s. 3; 1973, c. 822, s. 1; 2011-284, s. 107.

Effect of Amendments.

Session Laws 2011-284, s. 107, effective June 24, 2011, in subdivision (5), substituted “devise” for “bequest”; and in subdivision (7), deleted “bequest” following “exchange” in the first sentence, and deleted “bequests” following “Devises” in the last sentence.

§ 153A-264. Free library services.

If a county or city, pursuant to this Article, operates or makes contributions to the support of a library, any resident of the county or city, as the case may be, is entitled to the free use of the library.

History. 1953, c. 721; 1963, c. 945; 1971, c. 698, s. 3; 1973, c. 822, s. 1.

§ 153A-265. Library board of trustees.

The governing body of a county or city may appoint a library board of trustees. The governing body shall determine the number of members of the board of trustees (which may not be more than 12), the length of their terms, the manner of filling vacancies, and the amount, if any, of their compensation and allowances. The governing body may remove a trustee at any time for incapacity, unfitness, misconduct, or neglect of duty.

History. 1953, c. 721; 1963, c. 945; 1971, c. 698, s. 1; 1973, c. 822, s. 1.

Local Modification.

Burke: 1977, 2nd Sess., c. 1168; 1981 (Reg. Sess., 1982), c. 1141.

§ 153A-266. Powers and duties of trustees.

If a board of trustees is appointed, it shall elect a chairman and may elect other officers. The governing body may delegate to the board of trustees any of the following powers:

To formulate and adopt programs, policies, and regulations for the government of the library;
To make recommendations to the governing body concerning the construction and improvement of buildings and other structures for the library system;
To supervise and care for the facilities of the library system;
To appoint a chief librarian or director of library services and, with his advice, to appoint other employees of the library system. If some other body or official is to appoint the chief librarian or director of library services, to advise that body or official concerning that appointment;
To establish, a schedule of fines and charges for late return of, failure to return, damage to, and loss of library materials, and to take other measures to protect and regulate the use of such materials;
To participate in preparing the annual budget of the library system;
To extend the privileges and use of the library system to nonresidents of the county or city establishing or supporting the system, on any terms or conditions the board may prescribe.
To otherwise advise the board of commissioners on library matters. The board of trustees shall make an annual report on the operations of the library to the governing body of the county or city and shall make an annual report to the Department of Natural and Cultural Resources as required by G.S. 125-5 . If no board of trustees is established, the governing body shall make the annual report to the Department.

History. 1953, c. 721; 1963, c. 945; 1969, c. 488; 1971, c. 698, s. 3; 1973, c. 476, s. 84; c. 822, s. 1; 2015-241, s. 14.30(s).

Effect of Amendments.

Session Laws 2015-241, s. 14.30(s), effective July 1, 2015, substituted “Department of Natural and Cultural Resources” for “Department of Cultural Resources” in the last paragraph.

§ 153A-267. Qualifications of chief librarian; library employees.

To be eligible for appointment and service as chief administrative officer of a library system (whether designated chief librarian, director of library services, or some other title), a person must have a professional librarian certificate issued by the Secretary of Natural and Cultural Resources, pursuant to G.S. 125-9 , under regulations for certification of public librarian as established by the North Carolina Public Librarian Certification Commission pursuant to the provisions of G.S. 143B-67.
The employees of a county or city library system are, for all purposes, employees of the county or city, as the case may be.

History. 1953, c. 721; 1963, c. 945; 1969, c. 488; 1971, c. 698, s. 3; 1973, c. 476, s. 53; c. 822, s. 1; 1975, c. 516; 2015-241, s. 14.30(t).

Effect of Amendments.

Session Laws 2015-241, s. 14.30(t), effective July 1, 2015, substituted “Secretary of Natural and Cultural Resources” for “Secretary of Cultural Resources” in subsection (a).

§ 153A-268. Financing library systems.

A county or city may appropriate for library purposes any funds not otherwise limited as to use by law.

History. 1973, c. 822, s. 1.

§ 153A-269. Title to library property.

The title to all property acquired by a county or city for library purposes shall be in the name of the county or city. If property is given, granted, devised, or otherwise conveyed to the board of trustees of a county or city library system, it shall be deemed to have been conveyed to the county or city and shall be held in the name of the county or city.

History. 1953, c. 721; 1963, c. 945; 1971, c. 698, s. 3; 1973, c. 822, s. 1; 2011-284, s. 108.

Effect of Amendments.

Session Laws 2011-284, s. 108, effective June 24, 2011, deleted “bequeathed” following “devised” in the last sentence.

§ 153A-270. Joint libraries; contracts for library services.

Two or more counties or cities or counties and cities may establish a joint library system or contract for library services, according to the procedures and provisions of Chapter 160A, Article 20, Part 1.

History. 1953, c. 721; 1963, c. 945; 1971, c. 698, s. 3; 1973, c. 822, s. 1.

§ 153A-271. Library systems operated under local acts brought under this Article.

If a county or city operates a library system pursuant to a local act, the governing body of the county or city may by ordinance provide that the library system is to be operated pursuant to this Article.

History. 1973, c. 822, s. 1.

§ 153A-272. Designation of library employees to register voters.

The governing body of each public library with four or more employees shall designate at least one employee of the library to be appointed by the county board of elections to register voters pursuant to G.S. 163-80(a)(6). With the approval of the board of elections, additional employees may also be designated for this purpose by the governing body.

History. 1983, c. 588, s. 1.

Editor’s Note.

G.S. 163-80, referred to above, has been repealed.

§ 153A-273.

Reserved for future codification purposes.

Article 15. Public Enterprises.

Part 1. General Provisions.

§ 153A-274. Public enterprise defined.

As used in this Article, “public enterprise” includes:

Water supply and distribution systems.
Wastewater collection, treatment, and disposal systems of all types, including septic tank systems or other on-site collection or disposal facilities or systems.
Solid waste collection and disposal systems and facilities.
Airports.
Off-street parking facilities.
Public transportation systems.
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. 1965, c. 370; 1957, c. 266, s. 3; 1961, c. 514, s. 1; c. 1001, s. 1; 1971, c. 568; 1973, c. 822, s. 1; c. 1214; 1977, c. 514, s. 1; 1979, c. 619, s. 1; 1989, c. 643, s. 2; 1991 (Reg. Sess., 1992), c. 944, s. 13; 2000-70, s. 1.

Local Modification.

Bladen: 1985, c. 433, s. 1; 1989 (Reg. Sess., 1990), c. 839; Columbus: 1991 (Reg. Sess., 1992), c. 844; Duplin: 1991 (Reg. Sess., 1992), c. 844; Franklin: 1991 (Reg. Sess., 1992), c. 864; Hertford: 1991 (Reg. Sess., 1992), c. 844; Martin: 1991 (Reg. Sess., 1992), c. 844; Northampton: 1991 (Reg. Sess., 1992), c. 864; Sampson: 1985, c. 433, s. 1; 1991, c. 13; Stanly: 1985, c. 433, s. 1.

Funds for Local Government Water and Sewer Improvement Grants.

Information on funds for local government water and sewer improvement grants and the allocation of those funds can be found in the Editor’s note at G.S. 160A-311 describing Session Laws 2007-323, s. 13.13(a) through (p).

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 .

CASE NOTES

A public enterprise includes sewage collection and disposal systems of all types. McNeill v. Harnett County, 327 N.C. 552 , 398 S.E.2d 475, 1990 N.C. LEXIS 994 (1990).

Greater in Scope Than a Building. —

A public enterprise denotes a complex systematic activity or undertaking — something greater in scope than a building. Davidson County v. City of High Point, 85 N.C. App. 26, 354 S.E.2d 280, 1987 N.C. App. LEXIS 2577 , modified, 321 N.C. 252 , 362 S.E.2d 553, 1987 N.C. LEXIS 2555 (1987).

The word “building,” as used in G.S. 153A-347, does not encompass a “public enterprise,” as used in this section and G.S. 160A-311 . Davidson County v. City of High Point, 85 N.C. App. 26, 354 S.E.2d 280, 1987 N.C. App. LEXIS 2577 , modified, 321 N.C. 252 , 362 S.E.2d 553, 1987 N.C. LEXIS 2555 (1987).

Operation of a Water and/or Sewer System for and on Behalf of Another Unit of Local Government. —

Pursuant to an interlocal cooperative agreement and pursuant to authority granted in this Article, a county may, among other things, operate a water and/or sewer system for and on behalf of another unit of local government, such as a water and sewer district, and in conjunction therewith may exercise those rights, powers, and functions granted to water and sewer districts as found in G.S. 162A-88 and those rights, powers, and functions granted to counties in this Article. McNeill v. Harnett County, 327 N.C. 552 , 398 S.E.2d 475, 1990 N.C. LEXIS 994 (1990).

Sewer district and Harnett County entered into a contract on July 23, 1984, wherein it was agreed that the sewer district’s sewer system, which had been completed that year, would be operated by Harnett County through its Department of Public Utilities. Such units of local government may contract with each other to execute undertakings such as public enterprises, which would include a sewer system. McNeill v. Harnett County, 327 N.C. 552 , 398 S.E.2d 475, 1990 N.C. LEXIS 994 (1990).

Use of City-Owned Sewage Treatment Plant Without Prior Approval of County. —

§ 153A-274.1. Flood control activities under stormwater management programs.

Findings. — The General Assembly finds that it is in the best interest of the residents of North Carolina to promote and fund the implementation of stormwater management programs to control and manage water quantity and flow in order to reduce the chances of loss of life and damage to property due to flooding. The General Assembly also finds that a county has an integral role in furthering this public purpose by promoting and funding implementation of stormwater management programs within the county’s territorial jurisdiction to reduce reliance on emergency response services, to reduce negative financial impacts on the community and the public from flooding, including the cost of public infrastructure repairs, to decrease the number of flood-prone homes and businesses, to increase infiltration of stormwater into the ground, and to reduce pollutants from entering the streams.
Scope. — For purposes of operating a public enterprise under this Article, a county is authorized to do any of the following activities within its stormwater management program:
1. Purchase property for the purpose of demolishing flood-prone buildings.
2. Implement flood damage reduction techniques that result in improvements to private property in accordance with subsection (c) of this section, to include:
  1. Elevating structures or their associated components.
  2. Demolishing flood-prone structures.
  3. Retrofitting flood-prone structures.
Policy Document. — The county may engage in the activities listed in subdivision (2) of subsection (b) of this section only under the circumstances contained in a policy document approved by the board of county commissioners. The policy document shall, at a minimum, establish, and may elaborate on, the following:
1. Private property owner’s written consent must be obtained prior to implementation of flood reduction improvements on the owner’s property.
2. The county has determined that improving the stormwater system is not practically feasible or cost-effective, and the activities in subdivision (2) of subsection (b) provide savings to the stormwater fund.
3. The improvements to private property are the minimum necessary to accomplish the stormwater benefit.
4. Funding provided by the county, above a certain amount, to the property owner or expended upon improvements to the property shall be reimbursed to the county if the property is sold within five years of the completion of the flood reduction improvement project. The amount of reimbursement due to the county may be calculated as the difference between the established premitigation fair market value and the sale price of the property, not to exceed the total funding provided by the county.
5. The minimum financial contribution the private property owner must make to the project.
Advisory Committee. — An existing stormwater advisory committee established by the board of commissioners and having specific charges, duties, and representation as set forth by the board of county commissioners must review and approve projects that implement flood damage reduction techniques under subdivision (2) of subsection (b) of this section. The committee shall submit an annual report to the board of county commissioners for its review.
Application. — This section applies only to counties with a population of 910,000 or greater according to the most recent annual population estimates certified by the State Budget Officer.

History. 2014-14, s. 1.

§ 153A-275. Authority to operate public enterprises.

A county may acquire, lease as lessor or lessee, construct, establish, enlarge, improve, extend, maintain, own, operate, and contract for the operation of public enterprises in order to furnish services to the county and its citizens. A county may acquire, construct, establish, enlarge, improve, maintain, own, and operate outside its borders any public enterprise.
A county may adopt adequate and reasonable rules to protect and regulate a public enterprise belonging to or operated by it. The rules shall be adopted by ordinance, shall apply to the public enterprise system both within and outside the county, and may be enforced with the remedies available under any provision of law.

History. 1955, c. 370; 1957, c. 266, s. 3; 1961, c. 514, s. 1; c. 1001, s. 1; 1967, c. 462; 1971, c. 568; 1973, c. 822, s. 1; 1991 (Reg. Sess., 1992), c. 836, s. 2.

CASE NOTES

Constitutionality of Former Statute. —

Former G.S. 153-9(46), was constitutional, violating neither G.S. 5 nor G.S. 17 of Art. I of the Constitution of 1868. Ramsey v. Rollins, 246 N.C. 647 , 100 S.E.2d 55, 1957 N.C. LEXIS 521 (1957).

The limitation upon the counties contained in Art. VII, § 7 of the Constitution of 1868, requiring that bonds for the construction of water and sewer systems be approved by the voters in such county, did not impair the constitutionality of the grant of the power to construct such systems in any respect. Ramsey v. Rollins, 246 N.C. 647 , 100 S.E.2d 55, 1957 N.C. LEXIS 521 (1957).

Public Enterprises Outside County’s Boundaries. —

By the broad language which the legislature has used in G.S. 160A-312 and this section, it has evidenced its intent to give cities and counties comprehensive authority to own and operate public enterprises outside their boundaries with respect to the service of themselves and their citizens. Davidson County v. City of High Point, 85 N.C. App. 26, 354 S.E.2d 280, 1987 N.C. App. LEXIS 2577 , modified, 321 N.C. 252 , 362 S.E.2d 553, 1987 N.C. LEXIS 2555 (1987).

No Blanket Subjection to Host Jurisdiction’s Zoning Regulations. —

The Legislature has not seen fit to curtail the broad grant of authority it has given cities and counties in G.S. 160A-312 and this section, respectively, by blanketly subjecting public enterprises to a host jurisdiction’s zoning regulations. Rather, when in its judgment it has deemed it necessary to restrict one political subdivision’s ability to establish a particular type of public enterprise in another political subdivision the legislature has enacted a statute to accomplish that specific goal. Davidson County v. City of High Point, 85 N.C. App. 26, 354 S.E.2d 280, 1987 N.C. App. LEXIS 2577 , modified, 321 N.C. 252 , 362 S.E.2d 553, 1987 N.C. LEXIS 2555 (1987).

A county is authorized to operate a public enterprise in order to furnish services to its citizens. McNeill v. Harnett County, 327 N.C. 552 , 398 S.E.2d 475, 1990 N.C. LEXIS 994 (1990).

Water and sewer districts may contract with counties to carry out their purposes. McNeill v. Harnett County, 327 N.C. 552 , 398 S.E.2d 475, 1990 N.C. LEXIS 994 (1990).

OPINIONS OF ATTORNEY GENERAL

As to authority for county to appropriate nontax funds for water and sewer system, see opinion of Attorney General to Mr. M. Alexander Biggs, Special Counsel, Nash County Board of Commissioners, 40 N.C. Op. Att'y Gen. 92 (1970).

§ 153A-276. Financing public enterprises.

Subject to the restrictions, limitations, procedures, and regulations otherwise provided by law, a county may finance the cost of a public enterprise by levying taxes, borrowing money, and appropriating any other revenues, and by accepting and administering gifts and grants from any source.

History. 1973, c. 822, 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).

CASE NOTES

The operation of the sewer system is a public enterprise, and, as such, the method of financing the system is subject to this section. However, the mandate of this section applies only where such “restrictions, limitations, procedures, and regulations otherwise provided by law” are themselves mandatory. McNeill v. Harnett County, 327 N.C. 552 , 398 S.E.2d 475, 1990 N.C. LEXIS 994 (1990).

Procedures and Regulations Provided by Law Applicable to Public Enterprises. —

When an ordinance regulating a public enterprise is adopted by a local government to finance the public enterprise, the procedures supplied in the General Statutes for adopting such an ordinance must likewise be followed; when a general obligation bond is issued by a local government, the provisions of Chapter 159 must be followed; and when a local government purchases equipment, the applicable statutes regarding competitive bidding, where applicable, must likewise be followed. There is no statute or law that mandates notice and hearing requirements for ordinances requiring mandatory connections and fixing related connection charges and user fees. McNeill v. Harnett County, 327 N.C. 552 , 398 S.E.2d 475, 1990 N.C. LEXIS 994 (1990).

§ 153A-277. Authority to fix and enforce rates.

A county 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 a public enterprise. Schedules of rents, rates, fees, charges, and penalties may vary for the same class of service in different areas of the county and may vary according to classes of service, and different schedules may be adopted for services provided outside of the county. A county may include a fee relating to subsurface discharge wastewater management systems and services on the property tax bill for the real property where the system for which the fee is imposed is located.
(a1) (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 board of commissioners 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.

(2) The fees established under this subsection must be made applicable throughout the area of the county outside municipalities. 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 county’s cost of providing a stormwater management program and a structural and natural stormwater and drainage system. The county’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 county shall not impose a stormwater utility fee on a runway or taxiway located on military property.

(5) For all airports other than those covered by the exemption in subdivision (4) of this subsection, a county 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 county 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 county 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 county 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 county to the airport.

(a2) A county may require system development fees only in accordance with Article 8 of Chapter 162A of the General Statutes.
A county may 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 county may also discontinue service to a customer whose account remains delinquent for more than 10 days. 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. If water or sewer services are discontinued for delinquency, it is unlawful for a person other than a duly authorized agent or employee of the county to reconnect the premises to the water or sewer system.
(b1) A county 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.
    (b2) 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 county shall have the power to collect a delinquent account using any remedy provided by subsection (b) of this section from that customer.
Rents, rates, fees, charges, and penalties for enterprisory services are in no case a lien upon the property or premises served and, except as provided in subsection (d) of this section, are legal obligations of the person contracting for them, provided that no contract shall be necessary in the case of structural and natural stormwater and drainage systems.
Rents, rates, fees, charges, and penalties for enterprisory services are legal obligations of the owner of the property or 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; or
2. Charges made for use of a sewerage system are billed separately from charges made for the use of a water distribution system.

History. 1961, c. 1001, s. 1; 1973, c. 822, s. 1; 1991, c. 591, s. 2; 1991 (Reg. Sess., 1992), c. 932, s. 3; c. 1007, s. 45; 2000-70, s. 2; 2009-302, s. 2; 2017-132, s. 1; 2017-138, s. 3.

Local Modification.

Camden: 2012-55, s. 1, as amended by 2013-253, s. 1; Cumberland: 1995, c. 469, G.S. 1; Durham: 1998-60; Granville: 2012-55, s. 1; Mecklenburg: 1999-50, s. 1; Person: 2012-55, s. 1.

Editor’s Note.

Session Laws 2017-132, s. 3, made subdivisions (a1)(4) and (5), as added by Session Laws 2017-132, s. 1, effective January 1, 2018, and applicable to fees levied on or after that date.

Session Laws 2017-138, s. 11, made the amendment of subsection (a) and the addition of subsection (a2) by Session Laws 2017-138, s. 3, effective October 1, 2017, and applicable to system development fees imposed on or after that date.

Effect of Amendments.

Session Laws 2009-302, s. 2, effective July 17, 2009, added subsections (b1) and (b2).

Session Laws 2017-132, s. 1, added subdivisions (a1)(4) and (a1)(5). For effective date and applicability, see editor’s note.

Session Laws 2017-138, s. 3, added “or to be furnished” following “services furnished” in the first sentence of subsection (a); and added subsection (a2). For effective date and applicability, see editor’s note.

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

Rate Classification Must Be Reasonable and Based on Substantial Differences. —

Rates may be fixed in view of dissimilarities in conditions of service, but there must be some reasonable proportion between the variance in the conditions and the variances in the charges. Classification must be based on substantial difference. Barnhill San. Serv., Inc. v. Gaston County, 87 N.C. App. 532, 362 S.E.2d 161, 1987 N.C. App. LEXIS 3285 (1987).

Charge Imposed Only on Commercial, Industrial and Municipal Haulers Upheld. —

It was not a levy of an unreasonable discriminatory rate for a county to charge only commercial, industrial and municipal haulers of garbage for the use of the landfills. Barnhill San. Serv., Inc. v. Gaston County, 87 N.C. App. 532, 362 S.E.2d 161, 1987 N.C. App. LEXIS 3285 (1987).

§ 153A-278. Joint provision of enterprisory services.

Two or more counties, cities, or other units of local government may cooperate in the exercise of any power granted by this Article according to the procedures and provisions of Chapter 160A, Article 20, Part 1.

History. 1961, c. 1001, s. 1; 1973, c. 822, s. 1.

CASE NOTES

Interlocal Cooperative Agreements Sanctioned. —

The use of interlocal cooperative agreements is sanctioned with respect to public enterprises in this section, which provides that “two or more counties, cities, or other units of local government may cooperate in the exercise of any powers granted by this Article [Article 15 of Chapter 153A].” McNeill v. Harnett County, 327 N.C. 552 , 398 S.E.2d 475, 1990 N.C. LEXIS 994 (1990).

§ 153A-279. Limitations on rail transportation liability.

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 County, 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 County, 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 County.
3. “Passenger rail services” means the transportation of rail passengers by or on behalf of the County and all services performed by a railroad pursuant to a contract with the County 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 County or a railroad, or otherwise occupied by the County 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 County concerning passenger rail services.
Contracts Allocating Financial Responsibility Authorized. — The County 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.
Insurance Required. —
1. If the County enters into any contract authorized by subsection (b) of this section, the contract shall require the County to secure and maintain, upon and after the commencement of the operation of trains by or on behalf of the county, 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 County 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 County, the County 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.
Liability Limit. — The aggregate liability of the County, 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.
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.
Applicability. — This section shall apply only to counties 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. 2; 2012-79, s. 1.14(e).

Editor’s Note.

Some of the definitions above were renumbered in alphabetical order at the direction of the Revisor of Statutes.

§ 153A-280. Public enterprise improvements.

Authorization. — A county 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 county to reimburse the private party for costs associated with the design and construction of improvements that are in addition to those required by the county’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 county 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 county may enact ordinances and policies setting forth the procedures, requirements, and terms for agreements authorized by this section.
Property Acquisition. — The improvements may be constructed on property owned or acquired by the private party or on property owned or acquired by the county. The private party may assist the county in obtaining easements in favor of the county from private property owners on those properties that will be involved in or affected by the project. The contract between the county and the private party may be entered into before the acquisition of any real property necessary to the project.

History. 2005-426, s. 8(e).

§§ 153A-281, 153A-282.

Reserved for future codification purposes.

Part 2. Special Provisions for Water and Sewer Services.

§ 153A-283. Nonliability for failure to furnish water or sewer services.

In no case may a county be held liable for damages for failure to furnish water or sewer services.

History. 1961, c. 1001, s. 1; 1973, c. 822, s. 1.

CASE NOTES

Water Service Is Not “Property”. —

Water service furnished by the County does not rise to the level of “property” protected by due process requirements. McNeill v. Harnett County, 327 N.C. 552 , 398 S.E.2d 475, 1990 N.C. LEXIS 994 (1990).

No Claim of Entitlement to Water Services. —

While other statutes specifically authorize disconnections in certain situations, this section states specifically that “in no case may a county be held liable for damages for failure to furnish water or sewer services.” In light of this statutory provision, a citizen of a county in North Carolina may not assert a claim of entitlement to water services. McNeill v. Harnett County, 327 N.C. 552 , 398 S.E.2d 475, 1990 N.C. LEXIS 994 (1990).

Applicability. —

This section did not apply to action against county for denying plaintiffs access to county sewer line, where plaintiffs did not seek sewer services from the the county, which were to be provided by town, but all plaintiffs sought from defendant was access to a county-owned sewer line. Browning-Ferris Indus. of S. Atl., Inc. v. Wake County, 905 F. Supp. 312, 1995 U.S. Dist. LEXIS 15422 (E.D.N.C. 1995).

§ 153A-284. Power to require connections.

A county may require the owner of developed property on which there are situated one or more residential dwelling units or commercial establishments located so as to be served by a water line or sewer collection line owned, leased as lessee, or operated by the county or on behalf of the county to connect the owner’s premises with the water or sewer line and may fix charges for these connections.
In the case of improved property that would qualify for the issuance of a building permit for the construction of one or more residential dwelling units or commercial establishments and where the county has installed water or sewer lines or a combination thereof directly available to the property, the county may require payment of a periodic availability charge, not to exceed the minimum periodic service charge for properties that are connected.
In accordance with G.S. 87-97.1 , when developed property is located so as to be served by a county 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 county water line and the county shall not require the owner of any such water well to abandon, cap, or otherwise compromise the integrity of the water well.

History. 1963, c. 985, s. 1; 1965, c. 969, s. 2; 1973, c. 822, s. 1; 1979, c. 619, s. 13; 1995, c. 511, s. 3; 2015-246, s. 3.5(e).

Editor’s Note.

Session Laws 2015-246, s. 3.5(j), made the amendments to this section by Session Laws 2015-246, s. 3.5(e), effective August 1, 2016.

Session Laws 2015-246, s. 20 contains a severability clause.

Effect of Amendments.

Session Laws 2015-246, s. 3.5(e), effective August 1, 2016, added the (a) and (b) designations; and added subsection (c). For applicability, see editor’s note.

CASE NOTES

Constitutionality. —

This section and the ordinances in question, which were passed without notice and an opportunity to be heard and which mandated connections to the sewer lines as well as the payment of related connection charges and user fees, were consistent with federal procedural due process protections and were a valid exercise of the police power. McNeill v. Harnett County, 327 N.C. 552 , 398 S.E.2d 475, 1990 N.C. LEXIS 994 (1990).

This section and county mandating ordinances met the requirements of both the federal and State Constitutions in authorizing the imposition of connection charges and user/availability fees related to mandated connections. McNeill v. Harnett County, 327 N.C. 552 , 398 S.E.2d 475, 1990 N.C. LEXIS 994 (1990).

Exercise of Police Power. —

The establishment and maintenance of a sewer system by a city is ordinarily regarded as an exercise of its police power. McNeill v. Harnett County, 327 N.C. 552 , 398 S.E.2d 475, 1990 N.C. LEXIS 994 (1990).

The establishment and operation of a sewer system by the sewer district and the county is a valid exercise of the police power under the law of the land clause of the North Carolina Constitution. McNeill v. Harnett County, 327 N.C. 552 , 398 S.E.2d 475, 1990 N.C. LEXIS 994 (1990).

Notice and Hearing for Individual Property Owners Not Required. —

The law of the land clause does not require notice and opportunity for hearing prior to the passage of an ordinance mandating connection to a sewer system adopted under the authority of this section. McNeill v. Harnett County, 327 N.C. 552 , 398 S.E.2d 475, 1990 N.C. LEXIS 994 (1990).

To require notice and opportunity for hearing to all individual property owners prior to the adoption of an ordinance mandating connection of improved properties pursuant to the enabling act would be burdensome, costly to local governments, and not consistent with procedures employed in the exercise of other police powers. McNeill v. Harnett County, 327 N.C. 552 , 398 S.E.2d 475, 1990 N.C. LEXIS 994 (1990).

Power of County to Mandate Connections and Fix Charges. —

In addition to those powers granted to the Sewer District in G.S. 162A-88 , a county, as operator of a public enterprise, is clothed with those powers set forth in Chapter 153A, Article 15, including the power to mandate connections and to fix charges for those connections under this section. The plain wording of this section clearly supports this conclusion. McNeill v. Harnett County, 327 N.C. 552 , 398 S.E.2d 475, 1990 N.C. LEXIS 994 (1990).

There is no meaningful legal distinction between a mandated connection and mandated charges and fees for that connection. The latter naturally follow the former. McNeill v. Harnett County, 327 N.C. 552 , 398 S.E.2d 475, 1990 N.C. LEXIS 994 (1990).

County Must Own “or” Operate Sewage Collection Line. —

This section provides that a county may mandate connections to a sewage collection line “owned or operated” by the county. The use of the word “or,” indicating the alternative, is dispositive of this issue. Had the legislature intended that a county could mandate connections only when it both owned and operated a sewage collection line, the language of the statute would have so provided. McNeill v. Harnett County, 327 N.C. 552 , 398 S.E.2d 475, 1990 N.C. LEXIS 994 (1990).

Methods of Financing Sewer Project. —

The General Assembly intended that the local government may choose between financing the sewer project using a procedure which would result in an assessment and doing so by other methods not involving a lien-producing assessment. McNeill v. Harnett County, 327 N.C. 552 , 398 S.E.2d 475, 1990 N.C. LEXIS 994 (1990).

§ 153A-284.1. Notes or deeds of trust to reserve wastewater treatment capacity unenforceable if capacity unused.

No note or deed of trust granted to a county for the purpose of securing or reserving wastewater treatment capacity is valid or enforceable if that capacity is not utilized by the maker or grantor.

History. 2013, c. 386, s. 6.

Editor’s Note.

Session Laws 2013-386, s. 6, effective August 23, 2013, was codified as this section at the direction of the Revisor of Statutes.

§ 153A-285. [Repealed]

Repealed by Session Laws 1993, c. 348, s. 4.

Cross References.

This section, concerning prerequisites to acquisition of water and water rights in certain counties, was repealed by Session Laws 1993, c. 348, s. 4, effective January 1, 1994. For present similar provisions, see G.S. 143-215.22 L.

§ 153A-286. Law with respect to riparian rights not changed.

Nothing in this Article changes or modifies existing common or statute law with respect to the relative rights of riparian owners or others concerning the use of or disposal of water in the streams of North Carolina.

History. 1961, c. 1001, s. 1; 1973, c. 822, s. 1.

§ 153A-287. [Repealed]

Repealed by Session Laws 1993, c. 348, s. 5.

Cross References.

§ 153A-288. Venue for actions by riparian owners.

Any riparian owner alleging injury as a result of an act taken pursuant to this Article by a county or city acting jointly or by a joint agency may maintain an action for relief against the act (i) in the county where the land of the riparian owner lies, (ii) in the county taking the action, or (iii) in any county in which the city or joint agency is located or operates.

History. 1961, c. 1001, s. 1; 1973, c. 822, s. 1.

§§ 153A-289, 153A-290.

Reserved for future codification purposes.

Part 3. Special Provisions for Solid Waste Collection and Disposal.

§ 153A-291. Cooperation between the Department of Transportation and any county in establishing or operating solid waste disposal facilities.

A county and the Department of Transportation may enter into an agreement under which the Department of Transportation will make available to the county the use of equipment and prison and other labor in order to establish or operate solid waste disposal facilities within the county. The county shall reimburse the Department of Transportation for the cost of providing the equipment and labor. The agreement shall specify the work to be done thereunder and shall set forth the basis for reimbursement.

History. 1967, c. 707; 1973, c. 507, s. 5; c. 822, s. 1; 1977, c. 464, s. 34.

§ 153A-292. County collection and disposal facilities.

The board of county commissioners of any county may establish and operate solid waste collection and disposal facilities in areas outside the corporate limits of a city. The board may by ordinance regulate the use of a disposal facility provided by the county subject to the limitations of G.S. 130A-291 , the nature of the solid wastes disposed of in a facility, and the method of disposal. The board may contract with any city, individual, or privately owned corporation to collect and dispose of solid waste in the area. Counties and cities may establish and operate joint collection and disposal facilities. A joint agreement shall be in writing and executed by the governing bodies of the participating units of local government.
The board of county commissioners may impose a fee for the collection of solid waste. The fee may not exceed the costs of collection.The board of county commissioners may impose a fee for the use of a disposal facility provided by the county. 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 county enters into a contract with another local government located within the State to accept the other local government’s solid waste and the county 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 county 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. A county may not impose a fee for the use of a disposal facility on a city located in the county or a contractor or resident of the city unless the fee is based on a schedule that applies uniformly throughout the county.The board of county commissioners may impose a fee for the availability of a disposal facility provided by the county. A fee for availability may not exceed the cost of providing the facility and may be imposed on all improved property in the county that benefits from the availability of the facility. A county 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 county. 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 county disposal facility is not considered to benefit from a disposal facility provided by the county and is not subject to a fee imposed by the county for the availability of a disposal facility provided by the county. To the extent that the services provided by the county disposal facility differ from the services provided by the disposal facility provided by a private contractor in the same county, the county may charge an availability fee to cover the costs of the additional services provided by the county disposal facility.In determining the costs of providing and operating a disposal facility, a county may consider solid waste management costs incidental to a county’s handling and disposal of solid waste at its disposal facility, including the costs of the methods of solid waste management specified in G.S. 130A-309.04(a) of the Solid Waste Management Act of 1989. 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 county.
(b1) The collection, disposal, and availability fees authorized by this section may be used to cover the cost of waste management programs in the jurisdiction, including the collection of waste and the collection of litter along public roadways.
The board of county commissioners may use any suitable vacant land owned by the county for the site of a disposal facility, subject to the permit requirements of Article 9 of Chapter 130A of the General Statutes. If the county does not own suitable vacant land for a disposal facility, it may acquire suitable land by purchase or condemnation. The board may erect a gate across a highway that leads directly to a disposal facility operated by the county. The gate may be erected at or in close proximity to the boundary of the disposal facility. The county shall pay the cost of erecting and maintaining the gate.
, (e) Repealed by Session Laws 1991, c. 652, s. 1.
(f) This section does not prohibit a county from providing aid to low-income persons to pay all or part of the cost of solid waste management services for those persons.

History. 1961, c. 514, s. 1; 1971, c. 568; 1973, c. 535; c. 822, s. 2; 1981, c. 919, s. 22; 1989 (Reg. Sess., 1990), c. 1009, s. 3; 1991, c. 652, s. 1; 1995 (Reg. Sess., 1996), c. 594, s. 27; 2007-550, s. 10(a); 2013-413, s. 59.4(a); 2014-115, s. 60; 2017-209, s. 17(c).

Editor’s Note.

The above section was enacted by Session Laws 1973, c. 535, and codified as G.S. 153-273. As directed by Session Laws 1973, c. 822, s. 2, it has also been codified as G.S. 153A-292 .

Session Laws 2017-209, s. 17(e), effective October 4, 2017, provides: “Nothing in this section shall be construed to impact the terms of a contract, franchise agreement, or other agreement between a unit of local government and another entity concerning the management of solid waste, or the financing of such services or related facilities or equipment, in effect on the date this section becomes law.”

Effect of Amendments.

Session Laws 2007-550, s. 10(a), effective August 1, 2007, in the third paragraph of subsection (b), inserted “that provides the same services as those provided by the county disposal facility” in the fourth sentence, and added the last sentence.

Session Laws 2014-115, s. 60, effective August 11, 2014, added subsection (b1).

Session Laws 2017-292, s. 17(c), effective October 4, 2017, inserted “subject to the limitations of G.S. 130A-291 ” in the second sentence of subsection (a).

CASE NOTES

Property Under Consideration for Annexation into Municipality. —

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 N.C. App. LEXIS 2628 (1987).

Landfill fees, like sewer service charges, are neither taxes nor assessments, but are tolls or rents for benefits received by the use of the landfill. Barnhill San. Serv., Inc. v. Gaston County, 87 N.C. App. 532, 362 S.E.2d 161, 1987 N.C. App. LEXIS 3285 (1987).

Municipality Status Not Available to Privately Owned Corporation to Challenge Validity of an Ordinance. —

Where the record revealed that plaintiff was a privately owned corporation, it could not assert the status of a municipality in order to challenge the validity of an ordinance, as an agent of the municipality. Barnhill San. Serv., Inc. v. Gaston County, 87 N.C. App. 532, 362 S.E.2d 161, 1987 N.C. App. LEXIS 3285 (1987).

OPINIONS OF ATTORNEY GENERAL

See opinion of Attorney General to Mr. Edward H. McCormick, Harnett County Attorney, 41 N.C.A.G. 756 (1972), issued under former law.

See opinion of Attorney General to Mr. Bill Summerlin, 43 N.C.A.G. 41 (1973), issued under former law.

See opinion of Attorney General to Mr. R. Kason Keiger, Town Attorney, Kernersville, N.C. 44 N.C. Op. Att'y Gen. 40 (1974).

§ 153A-293. (See editor’s note) Collection of fees for solid waste disposal facilities and solid waste collection services.

A county may adopt an ordinance providing that any fee imposed under G.S. 153A-292 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.

History. 1989, c. 591, ss. 1, 2; 1989 (Reg. Sess., 1990), cc. 905, 938, 940, 974, 1017; 1991, c. 652, s. 2; 1991 (Reg. Sess., 1992), c. 1007, s. 26.

Editor’s Note.

This section was originally derived from Session Laws 1989, c. 591, effective July 6, 1989, and was applicable to fees imposed on or after April 1, 1989. As enacted, c. 591 was applicable to Ashe, Robeson and Wayne Counties only. The section was made applicable to additional counties by Session Laws 1989 (Reg. Sess., 1990), as follows: Chapter 905, effective July 13, 1990, made this section applicable to Alleghany, Caswell, Richmond, and Watauga; c. 938, effective July 17, 1990, and applicable to fees imposed on or after Jan. 1, 1991, made this section applicable to Polk, Transylvania, and Cleveland; c. 940, effective July 17, 1990, made this section applicable to Duplin; c. 974, effective July 19, 1990, made this section applicable to Burke, Gaston, Lee, Lenoir, and Washington; c. 1017, effective July 26, 1990, made this section applicable to Anson and Montgomery.

Section 6 of Session Laws 1991, c. 652 provides: “Chapters 591, 905, 938, 940, 974, 1007, and 1017 of the 1989 Session Laws are repealed. An ordinance adopted under a local act that is repealed by this act is considered to have been adopted under G.S. 153A-293 , as amended by this act.”

Session Laws 1991, c. 652, s. 6, as amended by Session Laws 1991 (Reg. Sess., 1992), c. 1007, s. 26, provides: “Chapters 591, 905, 938, 940, 974, 1007, and 1017 of the 1989 Session Laws are repealed to clarify that G.S. 153A-293 , as amended by this act, is a statewide statute and not a local statute. An ordinance adopted under a local act that is repealed by this act is considered to have been adopted under G.S. 153A-293 , as amended by this act.”

§ 153A-294. Solid waste defined.

As used in this Article, “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. 4.

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.

§§ 153A-295 through 153A-299.

Reserved for future codification purposes.

Part 4. Long Term Contracts for Disposal of Solid Waste.

§§ 153A-299.1 through 153A-299.6. [Repealed]

Repealed by Session Laws 1991 (Regular Session, 1992), c. 1013, s. 5.

Editor’s Note.

Session Laws 1991 (Reg. Sess., 1992), c. 1013, which repealed this part, 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. 763, s. 2, provides: “Any contract for solid waste disposal entered into by Bladen, Cumberland, and Hoke Counties which would have been lawful if this act had been in effect at the time the contract was entered into is ratified.” The act was ratified June 9, 1992.

Session Laws 1991 (Reg. Sess., 1992), c. 763, s. 1, effective June 9, 1992, inserted “Bladen County,” “Cumberland County,” and “Hoke County” in G.S. 153A-299.6 prior to its repeal.

Session Laws 1991 (Reg. Sess., 1992), c. 773, s. 1, effective June 22, 1992, inserted “Bertie County,” “Chowan County,” “Hertford County,” and “Tyrrell County” in G.S. 153A-299.6 prior to its repeal.

Session Laws 1991 (Reg. Sess., 1992), c. 775, s. 1, effective June 22, 1992, inserted “Moore County” in G.S. 153A-299.6, prior to its repeal.

Article 16. County Service Districts; County Research and Production Service Districts; County Economic Development and Training Districts.

Part 1. County Service Districts.

§ 153A-300. Title; effective date.

This Article may be cited as “The County 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. 489, s. 1; c. 822, s. 2.

Editor’s Note.

Sections 153A-300 through 153A-308 were originally codified as G.S. 153-383 through 153-391. They have been recodified in Chapter 153A as directed by Session Laws 1973, c. 822, s. 2.

Session Laws 1985, c. 435, s. 1 designated existing Article 16 as Part 1 of Article 16, entitled “County Service Districts,” and added new Part 2 of Article 16.

§ 153A-301. Purposes for which districts may be established.

The board of commissioners of any county 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 and functions in addition to or to a greater extent than those financed, provided or maintained for the entire county:
1. Beach erosion control and flood and hurricane protection works.
2. Fire protection.
3. Recreation.
4. Sewage collection and disposal systems of all types, including septic tank systems or other on-site collection or disposal facilities or systems.
5. Solid waste collection and disposal systems.
6. Water supply and distribution systems.
7. Ambulance and rescue.
8. Watershed improvement projects, including but not limited to watershed improvement projects as defined in Chapter 139 of the General Statutes; drainage projects, including but not limited to the drainage projects provided for by Chapter 156 of the General Statutes; and water resources development projects, including but not limited to the federal water resources development projects provided for by Article 21 of Chapter 143 of the General Statutes.
9. Cemeteries.
10. Law enforcement if all of the following apply:
  1. The population of the county is (i) over 900,000 according to the most recent federal decennial census, and (ii) less than ten percent (10%) of the population of the county is in an unincorporated area according to the most recent federal decennial census.
  2. The county has an interlocal agreement or agreements with a municipality or municipalities for the provision of law enforcement services in the unincorporated area of the county.
  3. Repealed by Session Laws 2008-134, s. 76(c), effective July 28, 2008.
11. Services permitted under Article 24 of this Chapter if the district is subject to G.S. 153A-472.1 .
The General Assembly finds that coastal-area counties have a special problem with lack of maintenance of platted rights-of-way, resulting in ungraded sand travelways deviating from the original rights-of-way and encroaching on private property, and such cartways exhibit poor drainage and are blocked by junk automobiles.
To address the problem described in subsection (b), the board of commissioners of any coastal-area county as defined by G.S. 113A-103(2) 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 and functions in addition to or to a greater extent than those financed, provided or maintained for the entire county:
1. Removal of junk automobiles; and
2. Street maintenance.
The board of commissioners of a county that contains a protected mountain ridge, as defined by G.S. 113A-206(6) , may define any number of service districts, composed of subdivision lots within one or more contiguous subdivisions that are served by common public roads, to finance for the district the maintenance of such public roads that are either located in the district or provide access to some or all lots in the district from a State road, where some portion of those roads is not subject to compliance with the minimum standards of the Board of Transportation set forth in G.S. 136-102.6. The service district or districts created shall include only subdivision lots within the subdivision, and one or more additional contiguous subdivisions, where the property owners’ association, whose purpose is to represent these subdivision lots, agrees to be included in the service district. For subdivision lots in an additional contiguous subdivision or for other adjacent or contiguous property to be annexed according to G.S. 153A-303 , the property owners’ association representing the subdivision or property to be annexed must approve the annexation. For the purposes of this subsection: (i) “subdivision lots” are defined as either separate tracts appearing of record upon a recorded plat, or other lots, building sites, or divisions of land for sale or building development for residential purposes; and (ii) “public roads” are defined as roads that are in actual open use as public vehicular areas, or dedicated or offered for dedication to the public use as a road, highway, street, or avenue, by a deed, grant, map, or plat, and that have been constructed and are in use by the public, but that are not currently being maintained by any public authority.
The board of commissioners of a county that adjoins or contains a lake, river, or tributary of a river or lake that has an identified noxious aquatic weed problem may define any number of noxious aquatic weed control service districts composed of property that is contiguous to the water or that provides direct access to the water through a shared, certified access site to the water. As used in this subsection, the term “noxious aquatic weed” is any plant organism identified by the Secretary of Environmental Quality under G.S. 113A-222 or regulated as a plant pest by the Commissioner of Agriculture under Article 36 of Chapter 106 of the General Statutes.

History. 1973, c. 489, s. 1; c. 822, s. 2; c. 1375; 1979, c. 595, s. 1; c. 619, s. 6; 1983 (Reg. Sess., 1984), c. 1078, s. 1; 1989, c. 620; 1993, c. 378, s. 1; 1995, c. 354, s. 1; c. 434, s. 1; 1997-456, s. 24; 2005-433, s. 10(b); 2005-440, s. 1; 2008-134, s. 76(c); 2011-100, s. 1; 2015-241, s. 14.30(v).

Local Modification.

Gaston: 1977, c. 336.

Effect of Amendments.

Session Laws 2005-433, s. 10(b), effective September 22, 2005, added subdivision (a)(11).

Session Laws 2005-440, s. 1, effective September 27, 2005, added subsection (e).

Session Laws 2008-134, s. 76(c), effective July 28, 2008, deleted subdivision (a)(10)c.

Session Laws 2011-100, s. 1, effective May 31, 2011, in subdivision (a)(10)a., added sub-sub-subdivision (ii), and in sub-sub-subdivision (i), substituted “900,000” for “500,000”; and in subdivision (a)(10)b., inserted “or agreements,” substituted “with a municipality or municipalities for the provision of law enforcement services” for “with a city in the county under which the city provides law enforcement services,” and deleted “entire” preceding “unincorporated.”

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 subsection (e).

§ 153A-302. Definition of service districts.

Standards. — In determining whether to establish a proposed service district, the board of commissioners shall consider all of the following:
1. The resident or seasonal population and population density of the proposed district.
2. The appraised value of property subject to taxation in the proposed district.
3. The present tax rates of the county and any cities or special districts in which the district or any portion thereof is located.
4. The ability of the proposed district to sustain the additional taxes necessary to provide the services planned for the district.
5. If it is proposed to furnish water, sewer, or solid waste collection services in the district, the probable net revenues of the projects to be financed and the extent to which the services will be self-supporting.
6. Any other matters that the commissioners believe to have a bearing on whether the district should be established. (a1) Findings. — The board of commissioners may establish a service district if, upon the information and evidence it receives, the board finds that all of the following apply:
  (1) There is a demonstrable need for providing in the district one or more of the services listed in G.S. 153A-301 .
  
  (2) It is impossible or impracticable to provide those services on a countywide basis.
  
  (3) It is economically feasible to provide the proposed services in the district without unreasonable or burdensome annual tax levies.
  
  (4) There is a demonstrable demand for the proposed services by persons residing in the district.Territory lying within the corporate limits of a city or sanitary district may not be included unless the governing body of the city or sanitary district agrees by resolution to such inclusion.
Report. — Before the public hearing required by subsection (c), the board of commissioners 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 one or more of the services listed in G.S. 153A-301 to the district.The report shall be available for public inspection in the office of the clerk to the board for at least four weeks before the date of the public hearing.
Hearing and Notice. — The board of commissioners shall hold a public hearing before adopting any resolution 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 clerk to the board. 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 board to mail the notice shall certify to the board that the mailing has been completed and his certificate is conclusive in the absence of fraud.
Effective Date. — The resolution defining a service district shall take effect at the beginning of a fiscal year commencing after its passage, as determined by the board of commissioners.
Exceptions For Countywide District. — The following requirements do not apply to a board of commissioners that proposes to create a law enforcement service district pursuant to G.S. 153A-301(a)(10) that covers the entire unincorporated area of the county:
1. The requirement that the district cannot be created unless the board makes the finding in subdivision (a1)(2) of this section.
2. The requirement in subsection (c) of this section to notify each property owner by mail, if the board publishes a notice of its proposal to establish the district, once a week for four successive weeks before the date of the hearing required by that subsection.
Exceptions for Article 24 District. — The following requirements do not apply to a board of commissioners that proposes to create a service district pursuant to G.S. 153A-301(a)(11) that covers the entire unincorporated area of the county:
1. The requirement that the district cannot be created unless the board makes the finding in subdivision (a1)(2) of this section.
2. The requirement in subsection (c) of this section to notify each property owner by mail, if the board publishes a notice of its proposal to establish the district, once a week for two successive weeks before the date of the hearing required by that subsection.

History. 1973, c. 489, s. 1; c. 822, s. 2; 1981, c. 53, s. 1; 1995, c. 354, s. 2; 2005-433, s. 10(c).

Editor’s Note.

Subsection (f) was originally enacted as subsection (e). The subsection was redesignated at the direction of the Revisor of Statutes.

Effect of Amendments.

Session Laws 2005-433, s. 10(c), effective September 22, 2005, added the subsection designated herein as (f).

§ 153A-303. Extension of service districts.

Standards. — The board of commissioners may by resolution 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; and
2. That the area to be annexed requires the services of the district.
Annexation by Petition. — The board of commissioners may also by resolution 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 board for annexation to the service district.
Territory lying within the corporate limits of a city or sanitary district may not be annexed to a service district unless the governing body of the city or sanitary district agrees by resolution to such annexation.
Report. — Before the public hearing required by subsection (e), the board 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), (b), and (c); and
3. A plan for extending services to the area to be annexed.The report shall be available for public inspection in the office of the clerk to the board for at least two weeks before the date of the public hearing.
Hearing and Notice. — The board shall hold a public hearing before adopting any resolution 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 (d) is available for inspection in the office of the clerk to the board. 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 board to mail the notice shall certify to the board that the mailing has been completed, and his certificate shall be conclusive in the absence of fraud.
Effective Date. — The resolution extending the boundaries of the district shall take effect at the beginning of a fiscal year commencing after its passage, as determined by the board.

History. 1973, c. 489, s. 1; c. 822, s. 2; 1981, c. 53, s. 2.

Editor’s Note.

Session Laws 2016-23, s. 11(b), provides: “The governing body of a county that gains territory as a result of the boundary certification described in this act [Session Laws 2016-23] shall meet as soon as practicable after the date this act becomes law to determine whether the residents of the territory (i) require the services provided by an existing rural fire protection district established under Article 3A of Chapter 69 of the General Statutes or a county service district established under Article 16 of Chapter 153A of the General Statutes or (ii) would benefit from the services provided by an existing county water and sewer district established under Article 6 of Chapter 162A of the General Statutes. If the governing body finds that the residents of the territory require or would benefit from the services of the district, the governing body shall annex the territory to the district as provided in G.S. 69-25.11(1) , 153A-303, and 162A-87.1.”

Session Laws 2016-23, s. 12(a), is a severability clause.

§ 153A-303.1. Removal of territory from service districts.

Standards. — A board of commissioners may by resolution remove territory from a service district upon finding that:
1. One hundred percent (100%) of the owners of real property in the territory to be removed have petitioned for removal.
2. The territory to be removed no longer requires the services, facilities, or functions financed, provided, or maintained for the district.
3. The service district was created only to provide the services listed in G.S. 153A-301(a)(4) or G.S. 153A-301(a)(6) or both.
4. The service district does not have any obligation or expense related to the issuance of bonds.
Report. — Before the public hearing required by subsection (c) of this section, the board shall cause to be prepared a report containing:
1. A map of the district highlighting the territory proposed to be removed, showing the present and proposed boundaries of the district; and
2. A statement showing that the territory to be removed meets the standards and requirements of subsection (a) of this section.
  The report shall be available for public inspection in the office of the clerk to the board for at least 10 days before the date of the public hearing.
Hearing and Notice. — The board shall hold a public hearing before adopting any resolution reducing the boundaries of a 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 (b) of this section is available for inspection in the office of the clerk to the board. The notice shall be published at least once not less than seven days before the hearing. In addition, the notice shall be mailed at least two 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 territory to be removed. The person designated by the board to mail the notice shall certify to the board that the mailing has been completed, and the certificate shall be conclusive in the absence of fraud.
Effective Date. — The resolution reducing the boundaries of the district shall take effect at the beginning of a fiscal year commencing after its passage, as determined by the board.

History. 2013-402, s. 1.

§ 153A-304. Consolidation of service districts.

The board of commissioners may by resolution consolidate two or more service districts upon finding that:
1. The districts are contiguous or are in a continuous boundary;
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.
Report. — Before the public hearing required by subsection (c), the board of commissioners 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 of the districts so that they are substantially the same throughout the consolidated district.The report shall be available in the office of the clerk to the board for at least two weeks before the public hearing.
Hearing and Notice. — The board of commissioners shall hold a public hearing before adopting any resolution 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 clerk to the board. 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 board to mail the notice shall certify to the board that the mailing has been completed, and his certificate shall be conclusive in the absence of fraud.
Effective Date. — The consolidation of service districts shall take effect at the beginning of a fiscal year commencing after passage of the resolution of consolidation, as determined by the board.

History. 1973, c. 489, s. 1; c. 822, s. 2; 1981, c. 53, s. 2.

§ 153A-304.1. Reduction in district after annexation.

When the whole or any portion of a county service district organized for fire protection purposes under G.S. 153A-301(2) has been annexed by a municipality furnishing fire protection to its citizens, and the municipality had not agreed to allow territory within it to be within the county service district under G.S. 153A-302(a), then such county service district or the portion thereof so annexed shall immediately thereupon cease to be a county service district or a portion of a county service district; and such district or portion thereof so annexed shall no longer be subject to G.S. 153A-307 authorizing the board of county commissioners to levy and collect a tax in such district for the purpose of furnishing fire protection therein.
Nothing in this section prevents the board of county commissioners from levying and collecting taxes for fire protection in the remaining portion of a county service district not annexed by a municipality.
When all or part of a county service district is annexed, and the effective date of the annexation is a date other than a date in the month of June, the amount of the county service district tax levied on property in the district for the fiscal year in which municipal taxes are prorated under G.S. 160A-58.10 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. For each owner, the product of the multiplication is the prorated fire protection payment. The finance officer of the city shall obtain from the assessor or tax collector of the county where the annexed territory was located a list of the owners of property on which fire protection district taxes were levied in the territory being annexed, and the city shall, no later than 90 days after the effective date of the annexation, pay the amount of the prorated fire protection district payment to the owners of that property. Such payments shall come from any funds not otherwise restricted by law.
Whenever a city is required to make fire protection district tax payments by subsection (c) of this section, and the city has paid or has contracted to pay to a rural fire department funds under G.S. 160A-58.57 , the county shall pay to the city from funds of the county service district an amount equal to the amount paid by the city (or to be paid by the city) to a rural fire department under G.S. 160A-58.57 on account of annexation of territory in the county service district for the number of months in that fiscal year used in calculating the numerator under subsection (c) of this section; provided that the required payments by the county to the city shall not exceed the total of fire protection district payments made to taxpayers in the district on account of that annexation.

History. 1987, c. 711, s. 1; 2008-134, s. 76(b); 2017-102, s. 14.4(b).

Editor’s Note.

Session Laws 1987, c. 711, s. 3 made this section effective with respect to annexations effective on or after August 1, 1987.

References to “G.S. 160A-58.57” were substituted for “G.S. 160A-49.1” in subsection (d) at the direction of the Revisor of Statutes to conform to recodification of that section by Session Laws 2011-396, s. 2.

Effect of Amendments.

Session Laws 2008-134, s. 76(b), effective July 28, 2008, substituted “assessor” for “tax supervisor” in the third sentence of subsection (c).

Session Laws 2017-102, s. 14.4(b), effective July 12, 2017, deleted “G.S. 160A-37.1 or” preceding “G.S. 160A-58.57” twice in subsection (d).

§ 153A-304.2. Reduction in district after annexation to Chapter 69 fire district.

When the whole or any portion of a county service district organized for fire protection purposes under G.S. 153A-301(a)(2) has been annexed into a fire protection district created under Chapter 69 of the General Statutes, then such county service district or the portion thereof so annexed shall immediately thereupon cease to be a county service district or a portion of a county service district; and such district or portion thereof so annexed shall no longer be subject to G.S. 153A-307 authorizing the board of county commissioners to levy and collect a tax in such district for the purpose of furnishing fire protection therein.
Nothing in this section prevents the board of county commissioners from levying and collecting taxes for fire protection in the remaining portion of a county service district not annexed into a fire protection district. This section does not affect the rights or liabilities of the county, a taxpayer, or other person concerning taxes previously levied.

History. 1989, c. 622.

§ 153A-304.3. Changes in adjoining service districts.

Changes. — The board of county commissioners may by resolution relocate the boundary lines between adjoining county service districts if the districts were established for substantially similar purposes. The boundary lines may be changed in accordance with a petition from landowners or may be changed in any manner the board deems appropriate. Upon receipt of a request to change service district boundaries, the board of county commissioners shall set a date and time for a public hearing on the request prior to taking action on the request.
Report. — Before the public hearing required by subsection (a) of this section, the board of county commissioners shall cause to be prepared a report containing all of the following:
1. A map of the service district and the adjacent territory showing the current and proposed boundaries of the district.
2. A statement indicating that the proposed boundary relocation meets the requirements of subsection (a) of this section.
3. A plan for providing service to the area affected by the relocation of district boundaries.
4. The effect that the changes in the amount of taxable property will have on the ability of the district to provide services or to service any debt.
  The report shall be available for public inspection in the office of the clerk of the board for at least two weeks before the date of the public hearing.
Notice and Hearing. — The board shall hold a public hearing before adopting any resolution relocating 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 (b) of this section is available for inspection in the office of the clerk to the board. The notice shall be published at least once not less than one week before the date of the hearing.
Effective Date. — The resolution changing the boundaries of the districts shall take effect at the beginning of a fiscal year commencing after its passage, as determined by the board.

History. 2005-136, s. 1.

§ 153A-304.4. Reduction in law enforcement service district after annexation.

When any portion of a county law enforcement service district organized under G.S. 153A-301(10) is annexed by a municipality, and the effective date of the annexation is a date other than a date in the month of June, the amount of the county law enforcement service district tax levied on each parcel of real property in the district for the fiscal year in which municipal taxes are prorated under G.S. 160A-58.10 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. For each parcel of real property in the portion of the district that is annexed, the product of the multiplication is the amount of the law enforcement service district tax to be refunded if the taxes have been paid, or released if the taxes have not been paid. The finance officer of the county shall obtain from the assessor or tax collector of the county a list of the owners of the real property on which law enforcement service district taxes were levied in the territory annexed, and the county shall pay the refund amount, if applicable, to the owner as shown on the records of the tax assessor of the real property as of the January 1 immediately preceding the date of the refund. Refund payments shall come from any funds not otherwise restricted by law.

History. 2008-134, s. 76(a).

Editor’s Note.

Session Laws 2008-134, s. 76(a), made this section applicable to annexations in fiscal year 2006-2007 or a subsequent fiscal year.

§ 153A-305. Required provision or maintenance of services.

New District. — When a county 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.
Extended District. — When a county annexes territory to 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.
Consolidated District. — When a county 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. 489, s. 1; c. 822, s. 2.

Local Modification.

Onslow: 1975, c. 757.

§ 153A-306. Abolition of service districts.

Upon finding that there is no longer a need for a particular service district and that there are no outstanding bonds or notes issued to finance projects in the district, the board of commissioners may by resolution abolish that district. The board shall hold a public hearing before adopting a resolution 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 resolution, as determined by the board.

History. 1973, c. 489, s. 1; c. 822, s. 2.

§ 153A-307. Taxes authorized; rate limitation.

A county may levy property taxes within defined service districts in addition to those levied throughout the county, in order to finance, provide or maintain for the districts services provided therein in addition to or to a greater extent than those financed, provided or maintained for the entire county. In addition, a county may allocate to a service district any other revenues whose use is not otherwise restricted by law.

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 county as of the preceding January 1.

Property taxes may not be levied within any district established pursuant to this Article in excess of a rate on each one hundred dollars ($100.00) value of property subject to taxation which, when added to the rate levied countywide for purposes subject to the rate limitation, would exceed the rate limitation established in G.S. 153A-149 (c), unless the 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 paragraph shall be held and conducted as provided in G.S. 153A-149 .

History. 1973, c. 489, s. 1; c. 822, s. 2.

§ 153A-308. Bonds authorized.

A county may issue its general obligation bonds under the Local Government Bond Act to finance services, facilities, or functions provided within a service district. If a proposed bond issue is required by law to be submitted to and approved by the voters of the county, 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 countywide, the proposed bond issue must be approved concurrently by a majority of those voting throughout the entire county and by a majority of the total of those voting in all of the affected or to-be-affected service districts.

History. 1973, c. 489, s. 1; c. 822, s. 2.

§ 153A-309. EMS services in fire protection districts.

If a service district is established under this Article for fire protection purposes under G.S. 153A-301(a)(2), (including a district established with a rate limitation under G.S. 153A-309.2 ), and it was not also established under this Article for ambulance and rescue purposes under G.S. 153A-301(a)(7), the board of county commissioners may, by resolution, permit the service district to provide emergency medical, rescue, and/or ambulance services, and may levy property taxes for such purposes under G.S. 153A-307 , but if the district was established under G.S. 153A-309.2 , the rate limitation established under that section shall continue to apply.
The resolution expanding the purposes of the district under this section shall take effect at the beginning of a fiscal year commencing after its passage.

History. 1983, c. 642; 1989, c. 559.

§ 153A-309.1.

Reserved for future codification purposes.

§ 153A-309.2. Rate limitation in certain districts — Alternative procedure for fire protection service districts.

In connection with the establishment of a service district for fire protection as provided by G.S. 153A-301(2) [G.S. 153A-301(a)(2)], if the board of commissioners adopts a resolution within 90 days prior to the public hearing required by G.S. 153A-302(c) but prior to the first publication of notice required by subsection (b) of this section, which resolution states that property taxes within a district may not be levied in excess of a rate of fifteen cents (15¢) on each one hundred dollars ($100.00) of property subject to taxation, then property taxes may not be levied in that service district in excess of that rate.
Whenever a service district is established under this section, instead of the procedures for hearing and notice under G.S. 153A-302(c), the board of commissioners shall hold a public hearing before adopting any resolution 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 G.S. 153A-302(b) is available for public inspection in the office of the clerk to the board. The notice shall be published at least twice, with one publication not less than two weeks before the hearing, and the other publication on some other day not less than two weeks before the hearing.

History. 1985, c. 724.

Editor’s Note.

The reference in subsection (a) to G.S. 153A-301(2) was apparently intended to be a reference to G.S. 153A-301(a)(2).

The section heading has been changed at the direction of the Revisor of Statutes. It formerly read: “Rate limitation in certain districts.”

§ 153A-309.3. Rate limitation in certain districts — Fire protection service districts for industrial property.

Any area in a service district for fire protection established pursuant to G.S. 153A-301(a)(2) may be removed from that district by resolution of the county board of commissioners and a new service district simultaneously created for the area so removed if the area is an industrial facility (and appurtenant land and structures):
1. Subject to a contract not to annex by a municipality under which the owner of the industrial property is obligated to make payments in lieu of taxes equal to or in excess of fifty percent (50%) of the taxes such industry would pay if it were annexed and is current in making such payments.
2. Actively served by an industrial fire brigade which meets the standards of the National Fire Protection Association and the requirements of the North Carolina Occupational Safety and Health Standards for General Industry (Title 29 Code of Federal Regulations Part 1910 incorporated by reference in 13 NCAC 07F.0101) for industrial fire brigades.
Prior to removing such area from the service district and simultaneously creating a new district of that same area, the board shall hold a public hearing. Notice of the hearing shall state the date, hour, and place of the hearing and its subject. 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 two 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 removed and a new district created. The notice may be mailed by any class of U.S. mail which is fully prepaid. The person designated by the board to mail the notice shall certify to the board that the mailing has been completed, and his certificate shall be conclusive in the absence of fraud.
In any district created under this section from area removed from an existing district, the county may not levy or collect property taxes for the purpose of financing fire protection pursuant to this Article in excess of a rate of three and one-half cents (3.5¢) on each one hundred dollars ($100.00) of property valuation subject to taxation.
If any district established under this section ceases to meet the tests established by subdivisions (a)(1) and (a)(2) of this section, the board of commissioners may by resolution abolish that district and annex that territory to the district from which it was removed after a public hearing under the same provisions as set out in subsection (b) of this section.
Any resolutions adopted under this section become effective the first day of July following their adoption.

History. 2005-281, s. 1.

Editor’s Note.

The section heading has been changed at the direction of the Revisor of Statutes. It formerly read: “Rate limitation in certain districts.”

§ 153A-310. Rate limitation in certain districts — Alternative procedure for ambulance and rescue districts.

In connection with the establishment of a service district for ambulance and rescue as provided by G.S. 153A-301(7) [G.S. 153A-301(a)(7)], if the board of commissioners adopts a resolution within 90 days prior to the public hearing required by G.S. 153A-302(c) but prior to the first publication of notice required by subsection (b) of this section, which resolution states that property taxes within a district may not be levied in excess of a rate of five cents (5¢) on each one hundred dollars ($100.00) of property subject to taxation, then property taxes may not be levied in that service district in excess of that rate.
Whenever a service district is established under this section, instead of the procedures for hearing and notice under G.S. 153A-302(c), the board of commissioners shall hold a public hearing before adopting any resolution 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 G.S. 153A-302(b) is available for public inspection in the office of the clerk to the board. The notice shall be published at least twice, with one publication not less than two weeks before the hearing, and the other publication on some other day not less than two weeks before the hearing.

History. 1985, c. 430, s. 1.

Editor’s Note.

The reference in subsection (a) to G.S. 153A-301(7) was apparently intended to be a reference to G.S. 153A-301(a)(7).

The section heading has been changed at the direction of the Revisor of Statutes. It formerly read: “Rate limitation in certain districts.”

Part 2. County Research and Production Service Districts and Urban Research Service Districts.

§ 153A-311. Purposes for which districts may be established.

The board of commissioners of any county may define a county research and production service district in order to finance, provide, and maintain for the district any service, facility, or function that a county or a city is authorized by general law to provide, finance, or maintain. Such a service, facility, or function shall be financed, provided, or maintained in the district either in addition to or to a greater extent than services, facilities, or functions are financed, provided, or maintained for the entire county.

History. 1985, c. 435, s. 1.

Editor’s Note.

Session Laws 1985, c. 435, s. 2 prohibited any municipality from annexing a described tract of land in Durham and Wake Counties except under Parts 1 or 4 of Chapter 160A. The legal description of this tract can be found in c. 435, s. 2. The tract described is the Research Triangle Park, which is a county research and production service district.

Legal Periodicals.

For article, “North Carolina’s Research Triangle Park: A Success Story of Private Industry Fostering Public Investment to Create a Homegrown Commercial Park,” see 40 Campbell L. Rev. 569 (2018).

§ 153A-312. Definition of research and production service district.

Standards. — The board of commissioners may by resolution establish a research and production service district for any area of the county that, at the time the resolution is adopted, meets the following standards:
1. All (i) real property in the district is being used for or is subject to covenants that limit its use to research; or scientifically-oriented production, technology, education; or associated commercial, residential, or institutional purposes; or for other purposes specifically authorized pursuant to the terms and conditions of the covenants, or (ii) if all the real property in the district is part of a multijurisdictional industrial park that satisfies the criteria of G.S. 143B-437.08(h), all such real property in the district is subject to covenants that limit its use to research or scientifically oriented production, associated commercial or institutional purposes, or other industrial and associated commercial and institutional uses.
2. The district (i) contains at least 4,000 acres or (ii) satisfies the criteria of G.S. 143B-437.08(h).
3. The district (i) includes research and production facilities that in combination employ at least 5,000 persons or (ii) satisfies the criteria of G.S. 143B-437.08(h).
4. Repealed by Session Laws 2012-73, s.1, effective June 26, 2012.
5. A petition requesting creation of the district signed by at least fifty percent (50%) of the owners of real property in the district who own at least fifty percent (50%) of total area of the real property in the district has been presented to the board of commissioners. In determining the total area of real property in the district and the number of owners of real property, there shall be excluded (1) real property exempted from taxation and real property classified and excluded from taxation and (2) the owners of such exempted or classified and excluded property.
6. Repealed by Session Laws 2012-73, s.1, effective June 26, 2012.
7. There exists in the district an association of owners and tenants, to which at least seventy-five percent (75%) of the owners of nonresidential real property belong, which association can make the recommendations provided for in G.S. 153A-313 . This subdivision shall not apply to a research and production service district that satisfies the criteria of G.S. 143B-437.08(h).
8. There exist deed-imposed conditions, covenants, restrictions, and reservations that apply to all real property in the district, provided that the covenants, restrictions, and reservations shall not be effective against the United States as long as it owns or leases property in the district but shall apply to any subsequent owner or lessee of such property.
9. No part of the district lies within the boundaries of any incorporated city or town.The Board of Commissioners may establish a research and production service district if, upon the information and evidence it receives, the Board finds that: (1) The proposed district meets the standards set forth in this subsection; and
  (2) It is impossible or impracticable to provide on a countywide basis the additional or higher levels of services, facilities, or functions proposed for the district; and
  
  (3) It is economically feasible to provide the proposed services, facilities, or functions to the district without unreasonable or burdensome tax levies.
  
  (a1) Additional Uses. — A developer of a research and production service district established prior to June 1, 2012, may amend the covenants that limit the use of real property in the district to include any of the following uses: research; or scientifically-oriented production, technology, education; or associated commercial, residential, or institutional purposes; or for other purposes specifically authorized pursuant to the terms and conditions of the covenants. A research and production service district is presumed to be in compliance with the standards in subsection (a) of this section if the district met the standards in subsection (a) of this section, as that subsection was enacted at the time of the establishment of the district.
Multi-County Districts. — If an area that meets the standards for creation of a research and production service district lies in more than one county, the boards of commissioners of those counties may adopt concurrent resolutions establishing a district, even if that portion of the district lying in any one of the counties does not by itself meet the standards. Each of the county boards of commissioners shall follow the procedure set out in this section for creation of a district.If a multi-county district is established, as provided in this subsection, the boards of commissioners of the counties involved shall jointly determine whether the same appraisal and assessment standards apply uniformly throughout the district, or, in the case of a multijurisdictional industrial park that satisfies the criteria of G.S. 143B-437.08(h), whether there is a current need in each participating county to levy a tax, which determination shall be made by each participating county’s board of commissioners. This determination shall be set out in concurrent resolutions of the boards. If the same appraisal and assessment standards apply uniformly throughout the district, the boards of commissioners of all the counties shall levy the same rate of tax for the district, so that a uniform rate of tax is levied for district purposes throughout the district. If the boards determine that the same standards do not apply uniformly throughout the district, the boards shall agree on the extent of divergence between the counties and on the resulting adjustments of tax rates that will be necessary in order that an effectively uniform rate of tax is levied for district purposes throughout the district. In the event that one or more of the boards of commissioners in one or more of the counties participating in a multijurisdictional industrial park that satisfies the criteria of G.S. 143B-437.08(h) determines that there is no current need to levy a tax for all or part of the property meeting said requirements within its jurisdictional boundaries, then that county or those counties shall be under no obligation to do so. That county or those counties participating in a multijurisdictional industrial park that satisfies the criteria of G.S. 143B-437.08(h) that choose to levy a tax for all or part of the property meeting said requirements within its jurisdictional boundaries may do so without setting an effectively uniform rate of tax as described above, provided such rate shall not exceed the rate allowed in G.S. 143B-317(b).The boards of commissioners of the counties establishing a multi-county district pursuant to this subsection may, by concurrent resolution, provide for the administration of services within the district by one or more counties on behalf of all the establishing counties.
Report. — Before the public hearing required by subsection (d), the board of commissioners 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 one or more services, facilities, or functions to the district.The report shall be available for public inspection in the office of the clerk to the board for at least four weeks before the date of the public hearing.
Hearing and Notice. — The board of commissioners shall hold a public hearing before adopting any resolution defining a 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 (c) is available for public inspection in the office of the clerk to the board. 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 board to mail the notice shall certify to the board that the mailing has been completed and his certificate is conclusive in the absence of fraud.
Effective Date. — The resolution defining a district shall take effect at the beginning of a fiscal year commencing after its passage, as determined by the board of commissioners.

History. 1985, c. 435, s. 1; 2009-523, s. 3(a); 2012-73, s. 1.

Effect of Amendments.

Session Laws 2009-523, s. 3(a), effective August 26, 2009, added “or (ii) if all the real property . . . institutional uses” at the end of subdivision (a)(1), and made a related change; added “or (ii) satisfies the criteria of G.S. 143B-437.08(h)” at the end of subdivisions (a)(2) and (a)(3), and made related changes; added the second sentence in subdivision (a)(7); substituted “There exists, or will exist when conveyed by the nonprofit corporation described in subdivision (4) of this subsection” for “There exist” at the beginning of subdivision (a)(8); and substituted “by one or more counties” for “by one county” in the last paragraph of subsection (b).

§ 153A-313. Research and production service district advisory committee.

The board or boards of commissioners, in the resolution establishing a research and production service district, shall also provide for an advisory committee for the district. Such a committee shall have at least 10 members, serving terms as set forth in the resolution; one member shall be the representative of the developer of the research and production park established as a research and production service district. The resolution shall provide for the appointment or designation of a chair. The board of commissioners or, in the case of a multi-county district, the boards of commissioners shall appoint the members of the advisory committee. If a multi-county district is established, the concurrent resolutions establishing the district shall provide how many members of the advisory committee are to be appointed by each board of commissioners. Before making the appointments, the appropriate board shall request the association of owners and tenants, required by G.S. 153A-312(a), to submit a list of persons to be considered for appointment to the committee; the association shall submit at least two names for each appointment to be made. Except as provided in the next two sentences, the board of commissioners shall make the appointments to the committee from the list of persons submitted. In addition, the developer of the research and production park shall appoint one person to the advisory committee as the developer’s representative on the committee. In addition, in a single county district, the board of commissioners may make two additional appointments of such other persons as the board of commissioners deems appropriate, and in a multi-county district, each board of county commissioners may make one additional appointment of such other person as that board of commissioners deems appropriate. Whenever a vacancy occurs on the committee in a position filled by appointment by the board of commissioners, the appropriate board, before filling the vacancy, shall request the association to submit the names of at least two persons to be considered for the vacancy; and the board shall fill the vacancy by appointing one of the persons so submitted, except that if the vacancy is in a position appointed by the board of commissioners under the preceding sentence of this section, the board of commissioners making that appointment shall fill the vacancy with such person as that board of commissioners deems appropriate.Each year, before adopting the budget for the district and levying the tax for the district, the board or boards of commissioners shall request recommendations from the advisory committee as to the level of services, facilities, or functions to be provided for the district for the ensuing year. The board or boards of commissioners shall, to the extent permitted by law, expend the proceeds of any tax levied for the district in the manner recommended by the advisory committee.
In the event that the research and production service district satisfies the criteria of G.S. 143B-437.08(h), the board of directors for the nonprofit corporation which owns the industrial park shall serve as the advisory committee described in subsection (a) of this section.

History. 1985, c. 435, s. 1; 2009-523, s. 3(b); 2012-73, s. 1.

Effect of Amendments.

Session Laws 2009-523, s. 3(b), effective August 26, 2009, designated the previously existing provisions as subsection (a), and added subsection (b).

§ 153A-314. Extension of service districts.

Standards. — A board of commissioners may by resolution annex territory to a research and production service district upon finding that:
1. The conditions, covenants, restrictions, and reservations required by G.S. 153A-312(a)(8) that apply to all real property in the district also apply or will apply to the property to be annexed, provided that the covenants, restrictions, and reservations shall not be effective against the United States as long as it owns or leases property in the district but shall apply to any subsequent owner or lessee of such property.
2. One hundred percent (100%) of the owners of real property in the area to be annexed have petitioned for annexation.
3. The district, following the annexation, will continue to meet the standards set out in G.S. 153A-312(a).
4. The area to be annexed requires the services, facilities, or functions financed, provided, or maintained for the district.
5. The area to be annexed is contiguous to the district.
Report. — Before the public hearing required by subsection (c), the board shall cause to be prepared a report containing:
1. A map of the district and the adjacent territory proposed to be annexed, showing the present and proposed boundaries of the district; and
2. A statement showing that the area to be annexed meets the standards and requirements of subsection (a) of this section.
  The report shall be available for public inspection in the office of the clerk to the board for at least four weeks before the date of the public hearing.
Hearing and Notice. — The board shall hold a public hearing before adopting any resolution extending the boundaries of a 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 (b) of this section is available for inspection in the office of the clerk to the board. The notice shall be published at least once not less than four weeks before the hearing. In addition, the notice 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 area to be annexed. The person designated by the board to mail the notice shall certify to the board that the mailing has been completed, and the certificate shall be conclusive in the absence of fraud.
Effective Date. — The resolution extending the boundaries of the district shall take effect at the beginning of a fiscal year commencing after its passage, as determined by the board.

History. 1985, c. 435, s. 1; 2012-73, s. 1.

§ 153A-314.1. Removal of territory from districts.

Standards. — A board of commissioners may by resolution remove territory from a research and production service district upon finding that:
1. The removal has been recommended by a vote of two-thirds of the eligible votes of the owners and tenants association.
2. One hundred percent (100%) of the owners of real property in the territory to be removed have petitioned for removal.
3. The territory to be removed no longer requires the services, facilities, or functions financed, provided, or maintained for the district.
Report. — Before the public hearing required by subsection (c) of this section, the board shall cause to be prepared a report containing:
1. A map of the district highlighting the territory proposed to be removed, showing the present and proposed boundaries of the district; and
2. A statement showing that the territory to be removed meets the standards and requirements of subsection (a) of this section.
  
  The report shall be available for public inspection in the office of the clerk to the board for at least 10 days before the date of the public hearing.
Hearing and Notice. — The board shall hold a public hearing before adopting any resolution reducing the boundaries of a 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 (b) of this section is available for inspection in the office of the clerk to the board. The notice shall be published at least once not less than seven days before the hearing. In addition, the notice shall be mailed at least two 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 territory to be removed. The person designated by the board to mail the notice shall certify to the board that the mailing has been completed, and the certificate shall be conclusive in the absence of fraud.
Municipal Annexation Allowed Under General Law. — The general law concerning annexation, Article 4A of Chapter 160A of the General Statutes, shall apply to any territory removed from the district under this section, notwithstanding any local act to the contrary.
Effective Date. — The resolution reducing the boundaries of the district shall take effect at the beginning of a fiscal year commencing after its passage, as determined by the board.

History. 2003-187, s. 1; 2012-73, s. 1.

§ 153A-315. Required provision or maintenance of services.

New District. — When a county or counties define a research and production service district, it or they shall provide, maintain, or let contracts for the services for which the district is being taxed within a reasonable time, not to exceed one year, after the effective date of the definition of the district.
Extended District. — When a territory is annexed to a research and production service district, the county or counties shall provide, maintain, or let contracts for the services provided or maintained throughout the district to property in the area annexed to the district within a reasonable time, not to exceed one year, after the effective date of the annexation.

History. 1985, c. 435, s. 1.

§ 153A-316. Abolition of districts.

A board or boards of county commissioners may by resolution abolish a research and production service district upon finding that (i) a petition requesting abolition, signed by at least fifty percent (50%) of the owners of nonresidential real property in the district who own at least fifty percent (50%) of the total area of nonresidential real property in the district, has been submitted to the board or boards; and (ii) there is no longer a need for such district. In determining the total area of nonresidential real property in the district and the number of owners of nonresidential real property, there shall be excluded (1) real property exempted from taxation and real property classified and excluded from taxation and (2) the owners of such exempted or classified and excluded property. The board or boards shall hold a public hearing before adopting a resolution 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 district shall take effect at the end of a fiscal year following passage of the resolution, as determined by the board or boards. If a multi-county district is established, it may be abolished only by concurrent resolution of the board of commissioners of each county in which the district is located.

History. 1985, c. 435, s. 1; 2012-73, s. 1.

§ 153A-316.1. Urban research service district (URSD).

Standards. — The board of commissioners of a county may establish one or more urban research service districts (“URSD” as used in this Part) that meets the following standards:
1. The URSD is wholly within a county research and production service district located partly within that county.
2. The URSD is located wholly within that county.
3. The URSD is not contained within another URSD.
4. A petition requesting creation of the URSD signed by at least fifty percent (50%) of the owners of real property in the URSD who own at least fifty (50%) of total area of the real property in the URSD has been presented to the board of commissioners.
Report. — Before the public hearing required by subsection (c) of this section, the board of commissioners shall cause to be prepared and adopted by it a report. The report shall be available for public inspection in the office of the clerk to the board for at least four weeks before the date of the public hearing. The report shall contain the following:
1. A map of the proposed URSD, showing its proposed boundaries.
2. A statement showing that the proposed URSD is for the purpose of providing urban services, facilities, or functions to a greater extent than (i) in the entire county and (ii) in the county research and production service district.
3. A plan for providing one or more services, facilities, or functions to the URSD.
Hearing and Notice. — The board of commissioners shall hold a public hearing before adopting any resolution defining a URSD 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 URSD and a statement that the report required by subsection (b) of this section is available for public inspection in the office of the clerk to the board. 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 that is fully prepaid to the owners, as shown by the county tax records as of the preceding January 1, of all property located within the proposed URSD. The person designated by the board to mail the notice shall certify to the board that the mailing has been completed, and the designated person’s certificate is conclusive in the absence of fraud.
Effective Date. — The resolution defining a URSD shall take effect at the beginning of a fiscal year commencing after its passage, as determined by the board of commissioners.

History. 2012-73, s. 1; 2012-194, s. 62.5.

§ 153A-316.2. URSD advisory committee.

Members. — The board of commissioners, in the resolution establishing a URSD, shall also provide for an advisory committee for the URSD. The committee shall have at least 10 members, serving terms as set forth in the resolution. The resolution shall provide for the appointment or designation of a chairperson. The board of commissioners shall appoint the members of the USRD [URSD] advisory committee. Before making the appointments, the board shall request the association of owners and tenants, required by G.S. 153A-312(a), to submit a list of persons to be considered for appointment to the committee. The association shall submit at least two names for each appointment to be made. Except as provided in subsection (b) of this section, the board of commissioners shall make the appointments to the committee from the list of persons submitted.
Additional Members. — In addition to the members provided in subsection (a) of this section, the developer of the research and production park established as a research and production service district shall appoint one person to the URSD advisory committee as the developer’s representative on the committee. The board of commissioners may make two additional appointments of such other persons as the board of commissioners deems appropriate.
Vacancy. — Whenever a vacancy occurs on the committee in a position filled by appointment by the board of commissioners, the board, before filling the vacancy, shall request the association to submit the names of at least two persons to be considered for the vacancy, and the board shall fill the vacancy by appointing one of the persons so submitted, except that if the vacancy is in a position appointed by the board of commissioners under subsection (b) of this section, the board of commissioners making that appointment shall fill the vacancy with such person as the board of commissioners deems appropriate.
Advisory Role. — Each year, before adopting the budget for the URSD and levying the tax for the URSD, the board of commissioners shall request recommendations from the URSD advisory committee as to the level of services, facilities, or functions to be provided for the URSD for the ensuing year. The board of commissioners shall, to the extent permitted by law, expend the proceeds of any tax levied for the URSD in the manner recommended by the URSD advisory committee.

History. 2012-73, s. 1.

Editor’s Note.

The bracketed reference “[URSD]” was added in subsection (a) at the direction of the Revisor of Statutes to correct an error in the act.

§ 153A-316.3. Extension of URSD.

Standards. — A board of commissioners may by resolution annex territory to a URSD upon finding that:
1. The conditions, covenants, restrictions, and reservations required by G.S. 153A-312(a)(8) that apply to all real property in the URSD also apply or will apply to the property to be annexed, provided that such covenants, restrictions, and reservations shall not be effective against the United States as long as it owns or leases property in the URSD but shall apply to any subsequent owner or lessee of such property.
2. One hundred percent (100%) of the owners of real property in the area to be annexed have petitioned for annexation.
3. The URSD, following the annexation, will continue to meet the standards set out in G.S. 153A-316.1(a).
4. The area to be annexed requires the services, facilities, or functions financed, provided, or maintained for the URSD.
5. The area to be annexed is contiguous to the URSD.
Report. — Before the public hearing required by subsection (c) of this section, the board shall cause to be prepared a report. The report shall be available for public inspection in the office of the clerk to the board for at least four weeks before the date of the public hearing. The report shall contain the following:
1. A map of the URSD and the adjacent territory proposed to be annexed, showing the present and proposed boundaries of the URSD.
2. A statement showing that the area to be annexed meets the standards and requirements of subsection (a) of this section.
Hearing and Notice. — The board shall hold a public hearing before adopting any resolution extending the boundaries of a URSD. 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) of this section is available for inspection in the office of the clerk to the board. The notice shall be published at least once not less than four weeks before the hearing. In addition, the notice shall be mailed at least four weeks before the date of the hearing by any class of U.S. mail that is fully prepaid 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 person designated by the board to mail the notice shall certify to the board that the mailing has been completed, and the certificate shall be conclusive in the absence of fraud.
Effective Date. — The resolution extending the boundaries of the URSD shall take effect at the beginning of a fiscal year commencing after its passage, as determined by the board.

History. 2012-73, s. 1.

§ 153A-316.4. Removal of territory from URSD.

Standards. — A board of commissioners may by resolution remove territory from a URSD upon finding that:
1. The removal has been recommended by a vote of two-thirds of the eligible voters of the owners and tenants association.
2. One hundred percent (100%) of the owners of real property in the territory to be removed have petitioned for removal.
3. The territory to be removed no longer requires the services, facilities, or functions financed, provided, or maintained for the URSD.
4. The county has not financed any project for which taxes levied on the URSD provide debt service pursuant to G.S. 153A-317.1(c).
Report. — Before the public hearing required by subsection (c) of this section, the board shall cause to be prepared a report. The report shall be available for public inspection in the office of the clerk to the board for at least 10 days before the date of the public hearing. The report shall contain the following:
1. A map of the URSD highlighting the territory proposed to be removed, showing the present and proposed boundaries of the URSD.
2. A statement showing that the territory to be removed meets the standards and requirements of subsection (a) of this section.
Hearing and Notice. — The board shall hold a public hearing before adopting any resolution reducing the boundaries of the URSD. 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) of this section is available for inspection in the office of the clerk to the board. The notice shall be published at least once not less than seven days before the hearing. In addition, the notice shall be mailed at least two weeks before the date of the hearing by any class of U.S. mail that is fully prepaid to the owners, as shown by the county tax records as of the preceding January 1, of all property located within the territory to be removed. The person designated by the board to mail the notice shall certify to the board that the mailing has been completed, and the certificate shall be conclusive in the absence of fraud.
Effective Date. — The resolution reducing the boundaries of the URSD shall take effect at the beginning of a fiscal year commencing after its passage, as determined by the board.

History. 2012-73, s. 1.

§ 153A-316.5. Required provision or maintenance of services in URSD.

New URSD. — When a county defines a URSD, it shall provide, maintain, or let contracts for the services for which the URSD is being taxed within a reasonable time, not to exceed one year, after the effective date of the definition of the URSD. When a county defines a URSD, it may designate the developer of the research and development park established as a research and production service district in which the URSD is located as an agent that may contract with any local government for the provision of services within the URSD.
Extended URSD. — When a territory is annexed to a URSD, the county shall provide, maintain, or let contracts for the services provided or maintained throughout the URSD to property in the area annexed to the URSD within a reasonable time, not to exceed one year, after the effective date of the annexation.

History. 2012-73, s. 1.

§ 153A-316.6. Abolition of URSD.

A county board of commissioners may by resolution abolish a URSD upon finding that (i) a petition requesting abolition, signed by at least fifty percent (50%) of the owners of nonresidential real property in the URSD who own at least fifty percent (50%) of the total area of nonresidential real property in the URSD, has been submitted to the board or boards; (ii) there is no longer a need for such URSD; and (iii) the county has not financed any project for which there is outstanding debt serviced by tax revenues levied within the URSD. In determining the total area of nonresidential real property in the URSD and the number of owners of nonresidential real property, there shall be excluded (i) real property exempted from taxation and real property classified and excluded from taxation and (ii) the owners of such exempted or classified and excluded property. The board or boards shall hold a public hearing before adopting a resolution abolishing a URSD. 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 URSD shall take effect at the end of a fiscal year following passage of the resolution, as determined by the board.

History. 2012-73, s. 1.

§ 153A-317. Research and production service district taxes authorized; rate limitation.

Tax Authorized. — A county, upon recommendation of the advisory committee established pursuant to G.S. 153A-313 , may levy property taxes within a research and production service district in addition to those levied throughout the county, 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 county. In addition, a county may allocate to a district any other revenues whose use is not otherwise restricted by law. The proceeds of taxes only within a district may be expended only for services provided for the district.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 county as of the preceding January 1.
Limit. — Such additional property taxes may not be levied within any district established pursuant to this Article in excess of a rate of ten cents (10¢) on each one hundred dollars ($100.00) value of property subject to taxation or, in the event that the research and production service district satisfies the criteria of G.S. 143B-437.08(h), such additional property taxes may not be levied within said district in excess of a rate of twenty cents (20¢) on each one hundred dollars ($100.00) value of property subject to taxation.
Public Transportation. — For the purpose of constructing, maintaining, or operating public transportation as defined by G.S. 153A-149(c)(27), in addition to the additional property taxes levied under subsections (a) and (b) of this section, a county, upon recommendation of the advisory committee established pursuant to G.S. 153A-313 , may levy additional property taxes within any district established pursuant to this Article not in excess of a rate of ten cents (10¢) on each one hundred dollars ($100.00) value of property subject to taxation. Such property taxes for public transportation may only be used within the district, or to provide for public transportation from the district to other public transportation systems or to other places outside the district including airports.

History. 1985, c. 435, s. 1; 2009-523, s. 3(c); 2009-527, s. 6; 2012-73, s. 1.

Effect of Amendments.

Session Laws 2009-523, s. 3(c), effective August 26, 2009, added “or, in the event . . . subject to taxation” at the end of the of the last paragraph (now subsection (b)).

Session Laws 2009-527, s. 6, effective August 27, 2009, added the subsection (a) and (b) designations; inserted “upon recommendation of the advisory committee established pursuant to G.S. 153A-313 ,” in the first sentence of present subsection (a); and added subsection (c).

§ 153A-317.1. Urban research service district taxes authorized; rate.

Tax Authorized. — A county, upon recommendation of the advisory committee established pursuant to G.S. 153A-316.2 , may levy property taxes within a URSD in addition to those levied throughout the county, and in addition to those levied throughout the county research and production service district, in order to finance, provide, or maintain for the URSD services provided therein in addition to or to a greater extent than those financed, provided, or maintained both for the entire county and for the county research and production service district. Only those services that cities are authorized by law to provide may be provided. In addition, a county may allocate to a URSD any other revenue not otherwise restricted by law.
Rate. — Property subject to taxation in a newly established URSD or in an area annexed to an existing URSD is that subject to taxation by the county as of the preceding January. The maximum tax rate set forth in G.S. 153A-317 shall not apply to the URSD. The additional property taxes within any URSD may not be levied in excess of the rate levied in the prior year by a city that:
1. Is the largest city in population that is contiguous to the county research and production service district where the URSD is located.
2. Is located primarily within the same county the URSD is located.
Use. — The proceeds of taxes levied within a URSD may be expended only for the benefit of the URSD. The taxes levied for the URSD may be used for debt service on any debt issued by the county that is used wholly or partly for capital projects located within the URSD, but not in greater proportion than expense of projects located within the URSD bear to the entire expense of capital projects financed by that borrowing of the county. For the purpose of this subsection, “debt” includes (i) general obligation bonds and notes issued under Chapter 159 of the General Statutes, (ii) revenue bonds issued under Chapter 159 of the General Statutes, (iii) financing agreements under Article 8 of Chapter 159 of the General Statutes, and (iv) special obligation bonds issued by the county.

History. 2012-73, s. 1.

§§ 153A-317.2 through 153A-310.10.

Reserved for future codification purposes.

Part 3. Economic Development and Training Districts.

§ 153A-317.11. Purpose and nature of districts.

The board of commissioners of any county may define a county economic development and training district, as provided in this Part, to finance, provide, and maintain for the district a skills training center in cooperation with its community college branch in or for the county to prepare residents of the county to perform manufacturing, research and development, and related service and support jobs in the pharmaceutical, biotech, life sciences, chemical, telecommunications, and electronics industries, and allied, ancillary, and subordinate industries, to provide within the district any of the education, training, and related services, facilities, or functions that a county or a city is authorized by general law to provide, finance, or maintain, and to promote economic development in the county. The skills training center and related services shall be financed, provided, or maintained in the district either in addition to or to a greater extent than training facilities and services are financed, provided, or maintained in the entire county. A district created under this Part is a special tax area under Section 2(4) of Article V of the North Carolina Constitution.

History. 2003-418, s. 1; 2004-170, s. 38.

Effect of Amendments.

Session Laws 2004-170, s. 38, effective August 2, 2004, rewrote the section heading; and added the last sentence.

§ 153A-317.12. Definition of economic development and training district.

Standards. — The board of commissioners may by resolution establish an economic development and training district for an area or areas of the county that, at the time the resolution is adopted, meet the following standards:
1. All of the real property in the district primarily is being used for, or is subject to, a declaration of covenants, conditions, and restrictions that limits its use primarily to biotech processing, chemical manufacturing, pharmaceutical manufacturing, electronics manufacturing, telecommunications manufacturing, and any allied, ancillary, or subordinate uses including, without limitation, any research and development facility, headquarters or office, temporary lodging facility, restaurant, warehouse, or transportation or distribution facility.
2. The district includes at least two pharmaceuticals manufacturing or bioprocessing facilities occupying sites in the district containing in the aggregate at least 425 acres owned by publicly held corporations.
3. The bioprocessing and pharmaceuticals manufacturing facilities in the district employ in the aggregate at least 1,600 persons.
4. The district includes an industrial park consisting of at least 60 acres within a noncontiguous parcel of at least 625 acres now or formerly owned by an airport authority.
5. The district’s zoning classifications permit the uses listed in this section.
6. All real property in the district is either zoned for or is being used primarily for pharmaceutical, biotech, life sciences, chemical, telecommunications, or electronics manufacturing or processing or allied, ancillary, or subordinate uses.
7. The district shall include a skills training center situated on a tract containing not less than eight acres, which facility shall be designed and staffed to provide relevant training to prepare existing or prospective employees of targeted industries for jobs in one or more of the pharmaceutical, biotech, life sciences, chemical, telecommunications, and electronics industries and allied, ancillary, or subordinate industries. The training center shall be completed within a reasonable period after the creation of the district.
8. At the date of creation, no part of the district lies within the boundaries of any incorporated city or town.
9. There exists a uniform set of covenants, conditions, restrictions, and reservations that applies to all real property in the district other than property owned by the federal, State, or local government.
10. There exists in the district an association of owners and tenants to which owners of real property representing at least fifty percent (50%) of the assessed value of real property in the district belong, which association can make the recommendations provided for in G.S. 153A-317.13 .
11. A petition requesting creation of the district signed by owners of real property in the district who own real and personal property representing at least fifty percent (50%) of the total assessed value of the real and personal property in the district has been presented to the board of commissioners. In determining the assessed value of real and personal property in the district and the owners of real property, there shall be excluded: (i) real property exempted from taxation and real property classified and excluded from taxation and (ii) the owners of such exempted or classified and excluded property. Assessed value shall mean the most recent values determined by the county for the imposition of taxes on real and personal property.
Findings. — The board of commissioners may establish an economic development and training district if, upon the information and evidence it receives, the board determines that:
1. The proposed district meets the standards set forth in subsection (a) of this section;
2. Economic development of the county will be served by providing selected skills training in a facility designed specifically to address the needs of targeted industries such as pharmaceuticals, biotech processing, telecommunications, electronics, and allied, ancillary, or subordinate supplies or services to induce existing industries and targeted industries to improve and expand their facilities and new industries to locate facilities in the district, thereby providing employment opportunities for the residents of the county;
3. It is impossible or impractical to provide training facilities and services on a countywide basis to all existing and future employers in the county to the same extent as such training services are intended to be furnished within the district; and
4. It is economically feasible to provide the proposed training facilities and services in the district without unreasonable or burdensome tax levies.
Report. — Before the public hearing required by subsection (d) of this section, the board of commissioners shall cause to be prepared a report containing all of the following:
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) of this section.
3. A plan for providing the skills training center and training services to the district.
  The report shall be available for public inspection in the office of the clerk to the board for at least four weeks before the date of the public hearing.
Hearing and Notice. — The board of commissioners shall hold a public hearing before adopting any resolution defining a 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 (c) of this section is available for public inspection in the office of the clerk to the board. 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 board to mail the notice shall certify to the board that the mailing has been completed, and the certificate shall be conclusive in the absence of fraud.
Effective Date. — The resolution creating a district shall take effect at the beginning of the fiscal year commencing after its passage or such other date as shall be determined by the board of commissioners.

History. 2003-418, s. 1.

§ 153A-317.13. Advisory committee.

Creation. — The board of commissioners, in the resolution establishing an economic development and training district, shall also provide for an advisory committee for the district. The committee shall consist of five members, serving terms as set forth in the resolution. The resolution shall provide for the appointment or designation of a chair. The board of commissioners shall appoint the members of the advisory committee as provided in this section.
Membership. — Three of the five committee members shall represent the association of owners and tenants, as required by G.S. 153A-317.12(a)(10), and two members shall represent the county. Before making the appointments representing the association, the board of commissioners shall request the association to submit a list of persons to be considered for appointment to the committee. The association of owners and tenants shall submit at least two names for each appointment to be made and the board of commissioners shall make the appointments to the committee representing the association from the list of persons submitted to it by the association. Whenever a vacancy occurs on the committee in a position filled by an appointment by the board of commissioners representing the association of owners and tenants, the board, before filling the vacancy, shall request the association to submit the names of at least two persons to be considered for the vacancy, and the board shall fill the vacancy by appointing one of the persons so submitted.
Advisory Duties. — Each year, before adopting the budget for the district and levying the tax for the district, the board shall request recommendations from the advisory committee as to the type and level of services, facilities, or functions to be provided for the district for the ensuing years. The board of commissioners shall, to the extent permitted by law, expend the proceeds of any tax levied for the district in the manner recommended by the advisory committee.

History. 2003-418, s. 1.

§ 153A-317.14. Extension of economic development and training districts.

Standards. — A board of commissioners may by resolution annex territory to an economic development and training district upon finding that:
1. The conditions, covenants, restrictions, and reservations required by G.S. 153A-317.12(a)(1) that apply to all real property in the district, other than property owned by the federal, State, or local government, also apply or will apply to the property, other than property owned by the federal government, to be annexed.
2. One hundred percent (100%) of the owners of real property in the area to be annexed have petitioned for annexation.
3. The district, following the annexation, will continue to meet the standards set out in G.S. 153A-317.12(a).
4. The reasonably anticipated training needs of the existing companies in the area to be annexed and of new companies that may locate within the expanded area can be met by the skills training facility located in the district.
5. The area to be annexed is either contiguous to a lot, parcel, or tract of land in the district or at least 500 acres in the aggregate counting all parcels proposed for annexation. A property shall, for purposes of this section, be deemed to be contiguous notwithstanding that it may be separated from other property by a street, road, highway, right-of-way, or easement.
6. If any of the area proposed to be annexed to the district is wholly or partially within the extraterritorial jurisdiction of a municipality, then it shall be necessary to first obtain the affirmative vote of a majority of the members of the governing body of the municipality before the area can be annexed.
Report. — Before the public hearing required by subsection (c) of this section, the board shall cause to be prepared a report containing all of the following:
1. A map of the district and the territory proposed to be annexed showing the present and proposed boundaries of the district.
2. A statement that the area to be annexed meets the standards and requirements of subsection (a) of this section.
  The report shall be available for public inspection in the office of the clerk to the board for at least four weeks before the date of the public hearing.
Hearing and Notice. — The board shall hold a public hearing before adopting any resolution extending the boundaries of a 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 (b) of this section is available for inspection in the office of the clerk to the board. The notice shall be published at least once not less than four weeks before the hearing. In addition, the notice 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 area to be annexed. The person designated by the board to mail the notice shall certify to the board that the mailing has been completed, and the certificate shall be conclusive in the absence of fraud.
Effective Date. — The resolution extending the boundaries of the district shall take effect at the beginning of the fiscal year commencing after its passage or such other date as shall be determined by the board.

History. 2003-418, s. 1.

§ 153A-317.15. Required provision or maintenance of skills training center.

New District. — When a county creates a district, it shall provide, maintain, or let contracts for the skills training center for which the district is being taxed within a reasonable time, not to exceed one year, after the effective date of the creation of the district.
Extended District. — When a territory is annexed to a district, the county shall provide, maintain, or let contracts for any necessary additions to the skills training center to provide the same training provided throughout the district to existing and new industries in the area annexed to the district within a reasonable time, not to exceed one year, after the effective date of the annexation.

History. 2003-418, s. 1.

§ 153A-317.16. Abolition of economic development and training districts.

A board of county commissioners may by resolution abolish a district upon finding that a petition requesting abolition, signed by at least fifty percent (50%) of the owners of real property in the district who own at least fifty percent (50%) of the real and personal property in the district based upon the most recent valuation thereof, has been submitted to the board and that there is no longer a need for such district. In determining the total real and personal property in the district and the number of owners of real and personal property, there shall be excluded: (i) property exempted from taxation and property classified and excluded from taxation and (ii) the owners of such exempted or classified and excluded property. The board shall hold a public hearing before adopting a resolution 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 district shall take effect at the end of a fiscal year following passage of the resolution, as determined by the board.

History. 2003-418, s. 1.

§ 153A-317.17. Taxes authorized; rate limitation.

A county may levy property taxes within an economic development and training district, in addition to those levied throughout the county, for the purposes listed in G.S. 153A-317.11 within the district in addition to or to a greater extent than the same purposes provided for the entire county. In addition, a county may allocate to a district any other revenues whose use is not otherwise restricted by law. The proceeds of taxes within a district may be expended only to pay annual debt service on up to one million two hundred thousand dollars ($1,200,000) of the capital costs of a skills training center provided for the district and any other services or facilities provided by a county in response to a recommendation of an advisory committee.

Property subject to taxation in a newly established district or in an area annexed to an existing district is subject to taxation by the county as of the preceding January 1.

Such additional property taxes may not be levied within any district established pursuant to this Article in excess of a rate of eight cents (8¢) on each one hundred dollars ($100.00) value of property subject to taxation.

History. 2003-418, s. 1; 2004-170, s. 39.

Effect of Amendments.

Session Laws 2004-170, s. 39, effective August 2, 2004, in the first paragraph, substituted “for the purposes listed in G.S. 153A-317.11 within the district” for “in order to finance, provide, or maintain for the district a skills training center provided therein,” and substituted “the same purposes” for “worker training facilities.”

Article 17. [Repealed]

§§ 153A-318, 153A-319.

Reserved for future codification purposes.

Article 18. Planning and Regulation of Development.

§§ 153A-320 through 153A-378. [Repealed]

Repealed by Session Laws 2019-111, s. 2.2, 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. 153A-320 ; 1959, c. 1006, s. 1; c. 1007; 1965, c. 194, s. 2; c. 195; 1969, c. 1066, s. 1; 1973, c. 822, s. 1; 2011-326, s. 9; repealed by 2019-111, s. 2.2, as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 153A-320 .1; 2014-120, s. 16(b); 2019-111, s. 1.2(b); repealed by 2019-111, s. 2.2, as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 153A-321; 1945, c. 1040, s. 1; 1955, c. 1252; 1957, c. 947; 1959, c. 327, s. 1; c. 390; 1973, c. 822, s. 1; 1979, c. 611, s. 6; 1997-309, s. 5; 2004-199, s. 41(c); repealed by 2019-111, s. 2.2, as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 153A-322; 1945, c. 1040, s. 1; 1955, c. 1252; 1957, c. 947; 1959, c. 327, s. 1; c. 390; 1973, c. 822, s. 1; 1983, c. 377, s. 8; 2004-199, s. 41(d); 2005-418, s. 1(b); repealed by 2019-111, s. 2.2, as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 153A-323; 1959, c. 1006, s. 1; c. 1007; 1973, c. 822, s. 1; 1981, c. 891, ss. 2, 9; 2004-75, s. 1; 2005-426, s. 1(b); 2013-59, s. 1; repealed by 2019-111, s. 2.2, as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 153A-324; 1959, c. 1006, s. 1; 1961, c. 414; 1973, c. 822, s. 1; 2007-371, s. 1; repealed by 2019-111, s. 2.2, as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 153A-325; 1983, c. 614, s. 4; 1987, c. 45, s. 1; repealed by 2019-111, s. 2.2, as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 153A-326; 1987, c. 747, s. 15; repealed by 2019-111, s. 2.2, as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 153A-330; 1959, c. 1007; 1965, c. 195; 1973, c. 822, s. 1; 2005-418, s. 2(b); repealed by 2019-111, s. 2.2, as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 153A-331; 1959, c. 1007; 1973, c. 822, s. 1; 1975, c. 231; 1987, c. 747, ss. 10, 17; 2005-426, s. 2(b); 2015-187, s. 1(b); 2019-79, s. 2; 2019-174, s. 3(c); repealed by 2019-111, s. 2.2, as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 153A-332; 1959, c. 1007; 1973, c. 822, s. 1; 1997-309, s. 6; 2005-418, s. 3(b); repealed by 2019-111, s. 2.2, as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 153A-333; 1959, c. 1007; 1973, c. 822, s. 1; repealed by 2019-111, s. 2.2, as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 153A-334; 1959, c. 1007; 1973, c. 822, s. 1; 1977, c. 820, s. 1; 1993, c. 539, s. 1063; 1994, Ex. Sess., c. 24, s. 14(c); 2005-426, s. 3(b); repealed by 2019-111, s. 2.2, as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 153A-335; 1959, c. 1007; 1973, c. 822, s. 1; 1979, c. 611, s. 2; 2003-284, s. 29.23(b); 2005-426, s. 4(b); 2017-10, s. 2.5(a); repealed by 2019-111, s. 2.2, as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 153A-336; 2009-421, s. 2(b); 2013-126, s. 7; repealed by 2019-111, s. 2.2, as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 153A-340; 1959, c. 1006, s. 1; 1967, c. 1208, s. 4; 1973, c. 822, s. 1; 1981, c. 891, s. 6; 1983, c. 441; 1985, c. 442, s. 2; 1987, c. 747, s. 12; 1991, c. 69, s. 1; 1997-458, s. 2.1; 2005-390, s. 6; 2005-426, s. 5(b); 2006-259, s. 26(a); 2007-381, s. 1; 2011-286, s. 1; 2011-363, s. 1; 2011-384, s. 5; 2013-126, ss. 5, 8; 2013-347, s. 1; 2013-413, s. 6(a); 2015-86, s. 2; 2015-246, ss. 3.1(b), 4(a); 2015-286, s. 1.8(b); 2017-102, s. 29; 2017-108, ss. 8(a), 9(a); 2019-111, s. 1.13; 2019-174, s. 3(d); 2020-18, s. 5(b); repealed by 2019-111, s. 2.2, as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 153A-341; 1959, c. 1006, s. 1; 1973, c. 822, s. 1; 2005-426, s. 7(b); 2017-10, s. 2.4(a); repealed by 2019-111, s. 2.2, as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 153A-341.1; 1987, c. 805, s. 2; repealed by 2019-111, s. 2.2, as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 153A-341.2; 2007-147, s. 2; repealed by 2019-111, s. 2.2, as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 153A-341.3; 2014-94, s. 1; repealed by 2019-111, s. 2.2, as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 153A-342; 1959, c. 1006, s. 1; 1965, c. 194, s. 2; 1973, c. 822, s. 1; 1985, c. 607, s. 3; 2005-426, s. 6(b); 2019-111, s. 1.15; repealed by 2019-111, s. 2.2, as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 153A-343; 1973, c. 822, s. 1; 1985, c. 595, s. 1; 1987, c. 807, s. 2; 1989 (Reg. Sess., 1990), c. 980, s. 2; 1993, c. 469, s. 2; 1995, c. 261, s. 1; c. 546, s. 2; 1997-456, s. 25; 2005-418, s. 4(b); 2009-178, s. 1; 2019-111, s. 1.5; repealed by 2019-111, s. 2.2, as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 153A-344; 1959, c. 1006, s. 1; 1965, c. 194, s. 3; 1973, c. 822, s. 1; 1979, c. 611, s. 3; 1985, c. 540, s. 1; 1989 (Reg. Sess., 1990), c. 996, s. 5; 2005-418, s. 7(b); 2016-111, s. 3; 2019-111, s. 1.3(d), (e); repealed by 2019-111, s. 2.2, as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020. G.S. 153A-344.1; 1989 (Reg. Sess., 1990), c. 996, s. 6; 2016-111, s. 4; 2019-111, s. 1.3(f); repealed by 2019-111, s. 2.2, as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020.

Cross References.

As to present similar provisions pertaining to Local Planning and Development Regulation, see Chapter 160D, G.S. 160D-101 et seq.

Editor’s Note.

Former G.S. 153A-320 pertained to territorial jurisdiction. Former G.S. 153A-320 .1 pertained to permit choice. Former G.S. 153A-321 pertained to planning boards. Former G.S. 153A-322 pertained to supplemental powers. Former G.S. 153A-323 pertained to procedure for adopting, amending, or repealing ordinances under this Article and Chapter 160A, Article 19. Former G.S. 153A-324 pertained to enforcement of ordinances. Former G.S. 153A-325 pertained to submission of statement concerning improvements. Former G.S. 153A-326 pertained to building setback lines. Former G.S. 153A-330 pertained to subdivision regulation. Former G.S. 153A-331 pertained to contents and requirements of ordinance. Former G.S. 153A-332 pertained to the ordinance to contain procedure for plat approval; approval prerequisite to plat recordation; statement by owner. Former G.S. 153A-333 pertained to the effect of plat approval on dedications. Former G.S. 153A-334 pertained to the penalties for transferring lots in unapproved subdivisions. Former G.S. 153A-335 pertained to “subdivision” defined. Former G.S. 153A-336 pertained to the appeals of decisions on subdivision plats. Former G.S. 153A-340 pertained to grant of power. Former G.S. 153A-341 pertained to purposes in view. Former G.S. 153A-341.1 pertained to zoning regulations for manufactured homes. Former G.S. 153A-341.2 pertained to reasonable accommodation of amateur radio antennas. Former G.S. 153A-341.3 pertained to zoning of temporary health care structures. Former G.S. 153A-342 pertained to districts; zoning less than entire jurisdiction. Former G.S. 153A-343 pertained to method of procedure. Former G.S. 153A-344 pertained to planning board; zoning plan; certification to board of commissioners. Former G.S. 153A-344.1 pertained to vesting rights. Former G.S. 153A-345 pertained to board of adjustment. Former G.S. 153A-345.1 pertained to board of adjustment. Former G.S. 153A-346 pertained to conflict with other laws. Former G.S. 153A-347 pertained to Part applicable to buildings constructed by the State and its subdivisions; exception. Former G.S. 153A-348 pertained to statute of limitations. Former G.S. 153A-349 pertained to appeals in the nature of certiorari. Former G.S. 153A-349.1 pertained to authorization for development agreements. Former G.S. 153A-349.2 pertained to definitions. Former G.S. 153A-349.3 pertained to local governments authorized to enter into development agreements; approval of governing body required. Former G.S. 153A-349.4 pertained to developed property criteria; permissible durations of agreements. Former G.S. 153A-349.5 pertained to public hearing. Former G.S. 153A-349.6 pertained to what development agreement must provide; what it may provide; major modification requires public notice and hearing. Former G.S. 153A-349.7 pertained to law in effect at time of agreement governs development; exceptions. Former G.S. 153A-349.8 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. 153A-349.9 pertained to the amendment or cancellation of development agreement by mutual consent of parties or successors in interest. Former G.S. 153A-349.10 pertained to validity and duration of agreement entered into prior to change of jurisdiction; subsequent modification or suspension. Former G.S. 153A-349.11 pertained to developer to record agreement within 14 days; burdens and benefits inure to successors in interest. Former G.S. 153A-349.12 pertained to applicability to local government of constitutional and statutory procedures for approval of debt. Former G.S. 153A-349.13 pertained to relationship of agreement to building or housing code; comprehensive plan amendment. Former G.S. 153A-349.50 pertained to purpose and compliance with federal law. Former G.S. 153A-349.51 pertained to definitions. Former G.S. 153A-349.51A pertained to local authority. Former G.S. 153A-349.52 pertained to construction of new wireless support structures or substantial modifications of wireless support structures. Former G.S. 153A-349.53 pertained to collocation and eligible facilities requests of wireless support structures. Former G.S. 153A-349.60 pertained to authorization to provide grants. Former G.S. 153A-350 pertained to “Building” defined. Former G.S. 153A-350.1 pertained to tribal lands. Former G.S. 153A-351 pertained to inspection department; certification of electrical inspectors. Former G.S. 153A-351.1 pertained to qualifications of inspectors. Former G.S. 153A-352 pertained to duties and responsibilities. Former G.S. 153A-353 pertained to joint inspection department; other arrangements. Former G.S. 153A-353.1 pertained to mutual aid contracts. Former G.S. 153A-354 pertained to financial support; fee collection, accounting, and use limitation. Former G.S. 153A-355 pertained to conflicts of interest. Former G.S. 153A-356 pertained to failure to perform duties. Former G.S. 153A-357 pertained to permits. Former G.S. 153A-358 pertained to time limitations on validity of permits. Former G.S. 153A-359 pertained to changes in work. Former G.S. 153A-360 pertained to inspections of work in progress. Former G.S. 153A-361 pertained to stop orders. Former G.S. 153A-362 pertained to revocation of permits. Former G.S. 153A-363 pertained to certificates of compliance; temporary certificates of occupancy. Former G.S. 153A-364 pertained to periodic inspections for hazardous or unlawful conditions. Former G.S. 153A-365 pertained to defects in buildings to be corrected. Former G.S. 153A-366 pertained to unsafe buildings condemned. Former G.S. 153A-367 pertained to removing notice from condemned building. Former G.S. 153A-368 pertained to action in event of failure to take corrective action. Former G.S. 153A-369 pertained to order to take corrective action. Former G.S. 153A-370 pertained to appeal; finality of order not appealed. Former G.S. 153A-371 pertained to failure to comply with order. Former G.S. 153A-372 pertained to equitable enforcement. Former G.S. 153A-372.1 pertained to ordinance authorized as to repair, closing, and demolition of nonresidential buildings or structures; order of public officer. Former G.S. 153A-373 pertained to records and reports. Former G.S. 153A-374 pertained to appeals. Former G.S. 153A-375 pertained to establishment of fire limits. Former G.S. 153A-376 pertained to community development programs and activities. Former G.S. 153A-377 pertained to acquisition and disposition of property for redevelopment. Former G.S. 153A-378 pertained to low- and moderate-income housing programs.

G.S. 153A-227 through G.S. 153A-229 and G.S. 153A-337 through G.S. 153A-339 were previously reserved sections within this Article.

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 2020-18, s. 5(b), inserted “hunting, fishing, equestrian activities” in the third sentence of subdivision (b)(2a) of former G.S. 153A-340. Session Laws 2020-18, s. 5(e), made the amendment effective June 12, 2020, and further provided that the amendment shall not be construed to affect any existing agreement or settlement with a local government, any permit or zoning decision previously issued by a local government, or any pending or ongoing litigation.

“(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.”

§§ 153A-379 through 153A-390.

Reserved for future codification purposes.

Article 19. Regional Planning Commissions.

§ 153A-391. Creation; admission of new members.

Two or more counties, cities, or counties and cities may create a regional planning commission by adopting identical concurrent resolutions to that effect in accordance with the provisions and procedures of this Article. A county or city may join an existing regional planning commission with the consent of the existing member governments.

The resolution creating a regional planning commission may be modified, amended, or repealed by the unanimous action of the member governments.

History. 1961, c. 722, s. 3; 1973, c. 822, s. 1.

Local Modification.

Cherokee, Graham, Jackson and Swain: 1973, c. 1406.

Editor’s Note.

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 [Office of Recovery and Resiliency in the Department of Public Safety] 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.”

Session Laws 2021-25, s. 5.2, is a severability clause.

§ 153A-392. Contents of resolution.

The resolutions creating a regional planning commission shall:

Specify the name of the commission;
Establish the number of delegates to represent each member government, fix the delegates’ terms of office and the conditions, if any, for their removal, provide methods for filling vacancies, and prescribe the compensation and allowances, if any, to be paid to delegates;
Set out the method of determining the financial support that will be given to the commission by each member government;
Set out the budgetary and fiscal control procedures to be followed by the commission, which shall substantially comply with the Local Government Budget and Fiscal Control Act (Chapter 159, Subchapter III).
In addition the resolution may, but need not, contain rules and regulations for the conduct of commission business and any other matters pertaining to the organization, powers, and functioning of the commission that the member governments consider appropriate.

History. 1961, c. 722, s. 3; 1973, c. 822, s. 1.

CASE NOTES

Contributions Held Due. —

Where, from 1971 through February 1982, defendant county participated as a member in plaintiff regional council’s activities, attending meetings and workshops and receiving the benefits of plaintiff ’s plans and services, and during this time defendant made full payments of its proportionate share of plaintiff ’s budget as set forth in plaintiff ’s bylaws, and where, most significantly, defendant indicated in a letter of March 8, 1982, that the county board of commissioners unanimously voted to comply with the obligations incumbent on a withdrawing member, and furthermore, where defendant did not raise any material question of fact pertaining to plaintiff ’s request that defendant should be estopped from denying its obligation, grant of plaintiff’s motion for summary judgment on its complaint seeking contributions due from defendant would be affirmed. Land-of-Sky Regional Council v. County of Henderson, 78 N.C. App. 85, 336 S.E.2d 653, 1985 N.C. App. LEXIS 4246 (1985).

§ 153A-393. Withdrawal from commission.

A member government may withdraw from a regional planning commission by giving at least two years’ written notice to the other counties and cities involved.

History. 1961, c. 722, s. 3; 1973, c. 822, s. 1.

CASE NOTES

Contributions Held Due. —

Where from 1971 through February 1982, defendant county participated as a member in plaintiff regional council’s activities, attending meetings and workshops and receiving the benefits of plaintiff ’s plans and services, and during this time defendant made full payments of its proportionate share of plaintiff’s budget as set forth in plaintiff ’s bylaws, and where, most significantly, defendant indicated in a letter of March 8, 1982, that the county board of commissioners unanimously voted to comply with the obligations incumbent on a withdrawing member, and furthermore, where defendant did not raise any material question of fact pertaining to plaintiff ’s request that defendant should be estopped from denying its obligation, grant of plaintiff ’s motion for summary judgment on its complaint seeking contributions due from defendant would be affirmed. Land-of-Sky Regional Council v. County of Henderson, 78 N.C. App. 85, 336 S.E.2d 653, 1985 N.C. App. LEXIS 4246 (1985).

§ 153A-394. Organization of the commission.

Upon its creation, a regional planning commission shall meet at a time and place agreed upon by the counties and cities involved. It shall organize by electing a chairman and any other officers that the resolution specifies or that the commission considers advisable. The commission may adopt bylaws for the conduct of its business. All commission meetings shall be open to the public.

The chairman of the commission may appoint any committees authorized by the bylaws. Committee members need not be delegates to the commission.

History. 1961, c. 722, s. 3; 1973, c. 822, s. 1.

§ 153A-395. Powers and duties.

A regional planning commission may:

Apply for, accept, receive, and disburse funds, grants, and services made available to it by the State of North Carolina or any agency thereof, the federal government or any agency thereof, any unit of local government or any agency thereof, or any private or civic agency;
Employ personnel;
Contract with consultants;
Contract for services with the State of North Carolina, any other state, the United States, or any agency of those governments;
Study and inventory regional goals, resources, and problems;
Prepare and amend regional development plans, which may include recommendations for land use within the region, recommendations concerning the need for and general location of public works of regional concern, recommendations for economic development of the region, and any other relevant matters;
Cooperate with and provide assistance to federal, State, other regional, and local planning activities within the region;
Encourage local efforts toward economic development;
Make recommendations for review and action to its member governments and other public agencies that perform functions within the region; (9a) For the purpose of meeting its office space and program needs, acquire real property by purchase, gift, or otherwise, and improve that property. It may pledge real property as security for an indebtedness used to finance acquisition of that property or for improvements to that property, subject to approval by the Local Government Commission as required under G.S. 159-153 . It may not exercise the power of eminent domain in exercising the powers granted by this subdivision.
Exercise any other power necessary to the discharge of its duties.

History. 1961, c. 722, s. 3; 1973, c. 822, s. 1; 2006-211, s. 2.

Effect of Amendments.

Session Laws 2006-211, s. 2, effective August 8, 2006, added subdivision (9a).

§ 153A-396. Fiscal affairs.

Each county and city having membership in a regional planning commission may appropriate to the commission revenues not otherwise limited as to use by law. Services of personnel, use of equipment and office space, and other services may be made available to a commission by its member governments as a part of their financial support.

History. 1961, c. 722, s. 3; 1973, c. 822, s. 1.

§ 153A-397. Reports.

Each regional planning commission shall prepare and distribute to its member governments and make available to the public an annual report of its activities, including a financial statement.

History. 1961, c. 722, s. 3; 1973, c. 822, s. 1.

§ 153A-398. Regional planning and economic development commissions.

Two or more counties, cities, or counties and cities may create a regional planning and economic development commission by adopting identical concurrent resolutions to that effect. Such a commission has the powers granted by this Article and the powers granted by Chapter 158, Article 2. If such a commission is created, it shall maintain separate books of account for appropriations and expenditures made pursuant to this Article and for appropriations and expenditures made pursuant to Chapter 158, Article 2.

History. 1961, c. 722, s. 3; 1973, c. 822, s. 1; 2013-360, s. 15.28(e); 2013-363, s. 5.7(b).

Editor’s Note.

Session Laws 2013-363, s. 5.7(b) repealed Session Laws 2013-360, s. 15.28(e), which would have amended this section, effective June 30, 2014, by deleting “and the powers granted by Chapter 158, Article 2” at the end of the first sentence and “and for appropriations and expenditures made pursuant to Chapter 158, Article 2” at the end of the second sentence.

§§ 153A-399, 153A-400.

Reserved for future codification purposes.

Article 20. Consolidation and Governmental Study Commissions.

§ 153A-401. Establishment; support.

Two or more counties or cities or counties and cities may by concurrent resolutions of their governing bodies establish a charter or governmental study commission as provided in this section:
1. Two or more counties that are contiguous or that lie within a continuous boundary may create a commission to study the consolidation of the counties or of one or more functions and services of the counties.
2. Two or more cities that are contiguous or that lie within a continuous boundary may create a commission to study the consolidation of the cities or of one or more functions and services of the cities.
3. A county and one or more cities within the county may create a commission to study the consolidation of the county and the city or cities or of one or more of their functions and services.
A county or city that participates in the establishment of a commission pursuant to this Article may appropriate for the support of the commission any revenues not otherwise limited as to use by law.

History. 1973, c. 822, s. 1.

§ 153A-402. Purposes of a commission.

A commission established pursuant to this Article may be charged with any of the following purposes:

To study the powers, duties, functions, responsibilities, and organizational structures of the counties or cities that established the commission and of other units of local government and public agencies within those counties or cities;
To prepare a report on its studies and findings;
To prepare a plan for consolidating one or more functions and services of the governments that established the commission;
To prepare drafts of any agreements or legislation necessary to effect the consolidation of one or more functions and services;
To prepare a plan for consolidating into a single government some or all of the governments that established the commission;
To prepare drafts of any legislation necessary to effect the plan of governmental consolidation;
To call a referendum, as provided in G.S. 153A-405 , on the plan of governmental consolidation.

History. 1973, c. 822, s. 1.

§ 153A-403. Content of concurrent resolutions.

The concurrent resolutions establishing a commission shall:

Set forth the purposes that are to be vested in the commission pursuant to G.S. 153A-402 ;
Determine the composition of the commission, the manner of appointment of its members, and the manner of selection of its officers;
Determine the compensation, if any, to be paid to commission members;
Provide for the organizational meeting of the commission;
Set out the method for determining the financial support that will be given to the commission by each of the governments establishing the commission;
Set forth the date by which the commission is to complete its work;
Set forth any other directions or limitations considered necessary.

History. 1973, c. 822, s. 1.

§ 153A-404. Powers of a commission.

A commission established pursuant to this Article may:

Adopt rules and regulations for the conduct of its business;
Apply for, accept, receive, and disburse funds, grants, and services made available to it by the State of North Carolina or any agency thereof, the federal government or any agency thereof, any unit of local government, or any private or civic agency;
Employ personnel;
Contract with consultants;
Hold hearings in the furtherance of its business;
Take any other action necessary or expedient to the furtherance of its business.

History. 1973, c. 822, s. 1.

§ 153A-405. Referendum; General Assembly action.

If authorized to do so by the concurrent resolutions that established it, a commission may call a referendum on its proposed plan of governmental consolidation. If authorized or directed in the concurrent resolutions, the ballot question may include the assumption of debt secured by a pledge of faith and credit language and may also include the assumption of the right to issue authorized but unissued faith and credit debt language as provided in subsection (b) of this section. The referendum shall be held in accordance with G.S. 163-287 .
The proposition submitted to the voters shall be substantially in one or more of the following forms and may include part or all of the bracketed language as appropriate and other such modifications as may be needed to reflect the issued debt secured by a pledge of faith and credit of any of the consolidating units or the portion of the authorized but unissued debt secured by a pledge of faith and credit of any of the consolidating units the right to issue which is proposed to be assumed by the consolidated city-county:
1. “Shall the County of and the County of be consolidated [and the consolidated unit assume the debt of each secured by a pledge of faith and credit, [the right to issue authorized but unissued debt to be secured by a pledge of faith and credit [(including any such debt as may be authorized for said counties on the date of this referendum)] and any of said authorized but unissued debt as may be hereafter issued,] and be authorized to levy taxes in an amount sufficient to pay the principal of and the interest on said debt secured by a pledge of faith and credit]? [ ] YES [ ] NO” (2) “Shall the City of and the City of be consolidated [and the consolidated unit assume the debt of each secured by a pledge of faith and credit, [the right to issue authorized but unissued debt to be secured by a pledge of faith and credit [(including any such debt as may be authorized for said cities on the date of this referendum)] and any of said authorized but unissued debt as may be hereafter issued,] and be authorized to levy taxes in an amount sufficient to pay the principal of and the interest on said debt secured by a pledge of faith and credit]? [ ] YES [ ] NO” (3) “Shall the City of and the County of be consolidated [and the consolidated unit assume the debt of each secured by a pledge of faith and credit, [the right to issue authorized but unissued debt to be secured by a pledge of faith and credit [(including any such debt as may be authorized for said city or county on the date of this referendum)] and any of said authorized but unissued debt as may be hereafter issued,] and be authorized to levy taxes in an amount sufficient to pay the principal of and the interest on said debt secured by a pledge of faith and credit]? [ ] YES [ ] NO” (c) The proposition submitted to the voters shall be substantially in one of the following forms: (1) “Shall the County of and the County of be consolidated? [ ] YES [ ] NO” (2) “Shall the City of and the City of be consolidated? [ ] YES [ ] NO” (3) “Shall the City of and the County of be consolidated? [ ] YES [ ] NO” (d) If the proposition is to consolidate two or more counties or to consolidate two or more cities, to be approved it must receive the votes of a majority of those voting in each of the counties or cities, as the case may be. If the proposition is to consolidate one or more cities with a county, to be approved it must receive the votes of a majority of those voting in the referendum. In addition, no governmental consolidation may become effective until enacted into law by the General Assembly. (e) Subsection (b) of this section applies to any county that has (i) a population over 120,000 according to the most recent federal decennial census and (ii) an area of less than 200 square miles. Subsection (c) of this section applies to all other counties. If any subsection or provision of this section is declared unconstitutional or invalid by the courts, it does not affect the validity of the section as a whole or any part other than the part so declared to be unconstitutional or invalid, provided that if the classifications in subsections (b) and (c) of this section are held unconstitutional or invalid then subsection (c) of this section is repealed and subsection (b) of this section shall be applicable uniformly to all counties.
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History. 1973, c. 822, s. 1; 1995, c. 461, s. 5; 1995 (Reg. Sess., 1996), c. 742, s. 38; 2013-381, s. 10.24; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.

Re-recodification; Technical and Conforming Changes.

Effect of Amendments.

Session Laws 2013-381, s. 10.24, effective January 1, 2014, substituted “shall be held in accordance with G.S. 163-287 ” for “may be held on the same day as any other referendum or election in the county or counties involved, but may not otherwise be held during the period beginning 30 days before and ending 30 days after the day of any other referendum or election to be conducted by the board or boards of elections conducting the referendum and already validly called or scheduled by law” in subsection (a). For applicability, see Editor’s note.

§§ 153A-406 through 153A-410.

Reserved for future codification purposes.

Article 21. Tourism Development Authorities. [Repealed]

§ 153A-411. (Repealed effective January 1, 2022 — see note) Definitions.

The following definitions apply in this Article:

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.
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.
Tourism development authority. — A public authority under the Local Government Budget and Fiscal Control Act established by resolution adopted by the board of county commissioners to receive and expend the net proceeds of an occupancy tax.

History. 2021-3, s. 2.19(a).

Article has a Delayed Repeal Date.

For repeal of this Article, see G.S. 153A-412(e) .

Editor’s Note.

Session Laws 2021-3, s. 2.19(c), made this Article, as added by Session Laws 2021-3, s. 2.19(a), effective March 11, 2021.

This section was enacted by 2021-3, s. 2.19(a), as G.S. 153A-406 . It was renumbered as G.S. 153A-411 at the direction of the Revisor of Statutes.

§ 153A-412. (Repealed effective January 1, 2022 — see note) Borrowing authority for PPP loans.

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.
No Power to Obligate State or County. — A tourism development authority may not obligate the State or the county that established the authority to repay a PPP loan and has no power to pledge the credit of the State or the county that established the authority.
Notice. — A tourism development authority shall provide written notice to the board of commissioners 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.
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.
Sunset. — This Article is repealed effective January 1, 2022.

History. 2021-3, s. 2.19(a).

Article has a Delayed Repeal Date.

For repeal of this Article, see G.S. 153A-412(e) .

Editor’s Note.

This section was enacted by 2021-3, s. 2.19(a), as G.S. 153A-407. It was renumbered as G.S. 153A-412 at the direction of the Revisor of Statutes.

§§ 153A-413 through 153A-420.

Reserved for future codification purposes.

Article 22. Regional Solid Waste Management Authorities.

§ 153A-421. Definitions; applicability; creation of authorities.

Unless a different meaning is required by the context, terms relating to the management of solid waste used in this Article have the same meaning as in G.S. 130A-2 and in G.S. 130A-290 . As used in this Article, the term “solid waste” means nonhazardous solid waste, that is, solid waste as defined in G.S. 130A-290 but not including hazardous waste. In addition to the meaning set out in G.S. 130A-2 90, the term “unit of local government” means the Eastern Band of the Cherokee Indians in North Carolina.
This Article shall not be construed to authorize any authority created pursuant to this Article to regulate or manage hazardous waste. An authority created under this Article may manage sludges, other than a sludge that is a hazardous waste, under rules of the Commission for Public Health and criteria established by the Department of Environmental Quality for the management of sludge.
Any two or more units of local government may create a regional solid waste management authority by adopting substantially identical resolutions to that effect in accordance with the provisions of this Article. The resolutions creating a regional solid waste management authority and any amendments thereto are referred to in this Article as the “charter” of the regional solid waste management authority. Units of local government which participate in the creation of a regional solid waste management authority are referred to in this Article as “members”.
As used in G.S. 153A-427(a)(24), the term “transferred” means placed at or delivered to any (i) place normally and customarily used by the authority for the collection of solid waste, (ii) other place agreed upon by the generator or owner of recyclable materials and the authority, or (iii) facility owned, operated, or designated by the authority.

History. 1989 (Reg. Sess., 1990), c. 888, s. 1; 1991, c. 580, s. 2; 1991 (Reg. Sess., 1992), c. 932, s. 4; c. 948, s. 1; 1997-443, s. 11A.123; 2007-182, s. 2; 2015-241, s. 14.30(u).

Effect of Amendments.

Session Laws 2007-182, s. 2, effective July 5, 2007, substituted “Commission for Public Health” for “Commission for Health Services” in subsection (b).

Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted “Department of Environmental Quality” for “Department of Environment and Natural Resources” in subsection (b).

§ 153A-422. Purposes of an authority.

The purpose of a regional solid waste management authority is to provide environmentally sound, cost effective management of solid waste, including storage, collection, transporting, separation, processing, recycling, and disposal of solid waste in order to protect the public health, safety, and welfare; enhance the environment for the people of this State; and recover resources and energy which have the potential for further use and to encourage, implement and promote the purposes set forth in Part 2A of Article 9 of Chapter 130A of the General Statutes.

History. 1989 (Reg. Sess., 1990), c. 888, s. 1.

§ 153A-423. Membership; board; delegates.

Each unit of local government initially adopting a resolution under G.S. 153A-421 shall become a member of the regional solid waste management authority. Thereafter, any unit of local government may join the authority by ratifying its charter and by being admitted by a unanimous vote of the existing members. All of the rights and privileges of membership in a regional solid waste management authority shall be exercised on behalf of the member units of local government by a board composed of delegates to the authority who shall be appointed by and shall serve at the pleasure of the governing boards of their respective units of local government. A vacancy on the board shall be filled by appointment by the governing board of the unit of local government having the original appointment.
Any delegate appointed by a member unit of local government to an authority created pursuant to this Article who is a county commissioner or city or town alderman or commissioner serves on the board of the authority in an ex officio capacity and such service shall not constitute the holding of an office for the purpose of determining dual office holding under Section 9 of Article VI of the Constitution of North Carolina or of Article 1 of Chapter 128 of the General Statutes.

History. 1989 (Reg. Sess., 1990), c. 888, s. 1.

§ 153A-424. Contents of charter.

The charter of a regional solid waste management authority shall:
1. Specify the name of the authority;
2. Establish the powers, duties and functions that the authority may exercise and perform;
3. Establish the number of delegates to represent the member units of local government 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 unit of local government; and
5. Establish a method for amending the charter, and for dissolving the authority and liquidating its assets and liabilities.
The charter of a regional solid waste management authority may, but need not, contain rules for the conduct of authority business and any other matter pertaining to the organization, powers, and functioning of the authority that the member units of local government deem appropriate.

History. 1989 (Reg. Sess., 1990), c. 888, s. 1.

§ 153A-425. Organization of authorities.

The governing board of a regional solid waste management authority shall hold an initial organizational meeting at such time and place as is agreed upon by its member units of local government and shall elect 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 regional solid waste management authorities shall be subject to the provisions of Article 33C of Chapter 143 of the General Statutes.

History. 1989 (Reg. Sess., 1990), c. 888, s. 1.

§ 153A-426. Withdrawal from an authority.

If the authority has no outstanding indebtedness, any member may withdraw from a regional solid waste management authority effective at the end of the current fiscal year by giving at least six months notice in writing to each of the other members. Withdrawal of a member shall not dissolve the authority if at least two members remain.

History. 1989 (Reg. Sess., 1990), c. 888, s. 1.

§ 153A-427. Powers of an authority.

The charter may confer on the regional solid waste management authority any or all of the following powers:
1. To apply for, accept, receive, and disburse funds and grants made available to it by the State 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, any private or civic agency, and any persons, firms, or corporations;
2. To employ personnel;
3. To contract with consultants;
4. To contract with the United States of America or any agency or instrumentality thereof, the State or any agency, instrumentality, political subdivision, or municipality thereof, or any private corporation, partnership, association, or individual, providing for the acquisition, construction, improvement, enlargement, operation or maintenance of any solid waste management facility, or providing for any solid waste management services;
5. To adopt bylaws for the regulation of its affairs and the conduct of its business and to prescribe rules and policies in connection with the performance of its functions and duties, not inconsistent with this Article;
6. To adopt an official seal and alter the same;
7. To establish and maintain suitable administrative buildings or offices at such place or places as it may determine by purchase, construction, lease, or other arrangements either by the authority alone or through appropriate cost-sharing arrangements with any unit of local government or other person;
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 and special obligation bonds of the authority and enter into other financial arrangements including those permitted by this Chapter and Chapters 159 and 160A of the General Statutes to finance solid waste management activities, including but not limited to systems and facilities for waste reduction, materials recovery, recycling, resource recovery, landfilling, ash management, and disposal and for related support facilities, to refund any revenue bonds, special obligation 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 any unit of local government, 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 solid waste management facilities within the territorial jurisdiction of the members of the authority, to prepare and make recommendations in regard thereto;
16. To study, plan, design, construct, operate, acquire, lease, and improve systems and facilities, including systems and facilities for waste reduction, materials recovery, recycling, resource recovery, landfilling, ash management, household hazardous waste management, transportation, disposal, and public education regarding solid waste management, in order to provide environmentally sound, cost-effective management of solid waste including storage, collection, transporting, separation, processing, recycling, and disposal of solid waste in order to protect the public health, safety, and welfare; to enhance the environment for the people of this State; recover resources and energy which have the potential for further use, and to promote and implement the purposes set forth in Part 2A of Article 9 of Chapter 130A of the General Statutes;
17. To locate solid waste facilities, including ancillary support facilities, as the authority may see fit;
18. To assume any responsibility for disposal and management of solid waste imposed by law on any member unit of local government;
19. To operate such facilities together with any person, firm, corporation, the State, any entity of the State, or any unit of local government as appropriate and otherwise permitted by its charter and the laws of this State;
20. To set and collect such fees and charges as is reasonable to offset operating costs, debt service, and capital reserve requirements of the authority;
21. To apply to the appropriate agencies of the State, the United States of America or any state thereof, and to any other appropriate agency for such permits, licenses, certificates, or approvals as may be necessary, and to construct, maintain, and operate projects in accordance with such permits, licenses, certificates, or approvals in the same manner as any other person or operating unit of any other person;
22. 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 the authority, to fix and pay their compensation from funds available to the authority therefor, 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 financial consultants, underwriters, or bond attorneys from funds available to the authority including the proceeds of any revenue bond issue with regard to which the services were performed;
23. To acquire property located within the territorial jurisdiction of any member unit of local government by eminent domain pursuant to authority granted to counties;
24. To require that any and all (i) solid waste generated within the authority’s service area and (ii) recyclable materials generated within the authority’s service area and transferred to the authority be separated and delivered to specific locations and facilities provided that if a private landfill shall be substantially affected by such requirement then the regional solid waste management authority shall be required to give the operator of the affected landfill at least two years written notice prior to the effective date of the requirement; and
25. To do all things necessary, convenient, or desirable to carry out the purposes and to exercise the powers granted to an authority under its charter.
The acquisition and disposal of real and personal property by an authority created under this Article shall be governed by those provisions of the General Statutes which govern the acquisition and disposal of real and personal property by counties, except that Article 8 of Chapter 143 of the General Statutes and Part 3 of Article 8 of Chapter 153A of the General Statutes do not apply. No authority created pursuant to this Article shall exercise any power of eminent domain with respect to any property located outside the territorial jurisdiction of the members of such authority.
Each authority’s plan shall take into consideration facilities and other resources for management of solid waste which may be available through private enterprise. This Article shall be construed to encourage the involvement and participation of private enterprise in solid waste management. An authority created pursuant to this Article shall establish goals for the procurement of goods and services from minority and historically underutilized businesses.

History. 1989 (Reg. Sess., 1990), c. 888, s. 1; 1991, c. 580, s. 1; 2007-131, ss. 1, 2; 2020-3, s. 4.30(c).

Editor’s Note.

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

Effect of Amendments.

Session Laws 2007-131, ss. 1 and 2, effective June 27, 2007, added the exception at the end of the first sentence in subsection (b) and added the last sentence in subsection (c).

Session Laws 2020-3, s. 4.30(c), effective retroactively to July 1, 2019, in subdivision (a)(13), inserted “and special obligation bonds” near the beginning, substituted “Chapters 159 and 160A” for “Chapters 159, 159I, and 160A”, and inserted “special obligation bonds”.

§ 153A-428. Fiscal accountability; support from other governments.

A regional solid waste management authority is a public authority subject to the provisions of Chapter 159 of the General Statutes.
The establishment and operation of an authority as herein authorized are governmental functions and constitute a public purpose, and the State and any unit of local government may appropriate funds to support the establishment and operation of an authority.
The State 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 (Reg. Sess., 1990), c. 888, s. 1.

§ 153A-429. Long-term contract permitted by and with an authority.

To the extent authorized by its charter, an authority may enter into long-term and continuing contracts, not to exceed a term of 60 years, with member or other units of local government for the acquisition, construction, improvement, enlargement, operation, or maintenance of any solid waste management facility or for solid waste management services with respect to solid waste generated within their geographic boundaries or brought into their geographic boundaries.
Contracts entered into by an authority may include, but are not limited to, provisions for:
1. Payment by the members of the authority and other units of local government of a fee or other charge by the authority to accept and dispose of solid waste;
2. Periodic adjustments to the fee or other charges to be paid by each member of the authority and such other units of local government;
3. Warranties from the members of the authority and such other units of local government with respect to the quantity of the solid waste which will be delivered to the authority and warranties relating to the content or quality of the solid waste; and
4. Legal and equitable title to the solid waste passing to the authority upon delivery of the solid waste to the authority.

History. 1989 (Reg. Sess., 1990), c. 888, s. 1.

§ 153A-430. Compliance with other law.

Repealed by Session Laws 1989 (Regular Session, 1990), c. 1004, s. 47.
An authority created pursuant to this Article shall comply with all applicable federal and State laws, regulations, and rules, including specifically those enacted or adopted for the management of solid waste or for the protection of the environment or public health.
Except as provided by subsection (d) of this section, a unit of local government that is exempt from compliance with State laws or rules enacted or adopted for the management of solid waste or for the protection of the environment shall, by becoming a member of a regional solid waste management authority created under this Article and as a condition of such membership, agree to comply with and to be bound by all applicable federal and State laws, regulations, and rules enacted or adopted for the management of solid waste and for the protection of the environment with respect to all solid waste management activities of the authority within the territorial jurisdiction of the unit of local government and with respect to all solid waste management activities performed by the unit of local government in connection with membership in the authority.
A unit of local government that is exempt from compliance with State laws or rules enacted or adopted for the management of solid waste shall obtain all permits that may be necessary for the conduct of solid waste management activities within the territorial jurisdiction of the unit of local government as provided by federal law and regulations. Responsibility for the enforcement of laws, regulations, and rules enacted or adopted for the management of solid waste within the territorial jurisdiction of a unit of local government that is exempt from compliance with State laws or rules enacted or adopted for the management of solid waste shall be as provided by federal law and regulations.

History. 1989 (Reg. Sess., 1990), c. 888, s. 1; c. 1004, s. 47; c. 1075, s. 5; 1991 (Reg. Sess., 1992), c. 948, s. 2.

§ 153A-431. Issuance of revenue bonds and notes.

The State and Local Government Revenue Bond Act, Article 5 of Chapter 159 of the General Statutes, governs the issuance of revenue bonds by an authority. Article 9 of Chapter 159 of the General Statutes governs the issuance of notes in anticipation of the sale of revenue bonds.

History. 1989 (Reg. Sess., 1990), c. 888, s. 1.

§ 153A-432. Advances.

Any member or other units of local government may make advances from any monies that may be available for such purpose, in connection with the creation of an authority and to provide for the preliminary expenses of an authority. Any such advances may be repaid to such member or other units of local government from the proceeds of the revenue bonds or anticipation notes issued by such authority or from funds otherwise available to the authority.

History. 1989 (Reg. Sess., 1990), c. 888, s. 1.

§§ 153A-433, 153A-434.

Reserved for future codification purposes.

Article 23. Miscellaneous Provisions.

§ 153A-435. Liability insurance; damage suits against a county involving governmental functions.

A county may contract to insure itself and any of its officers, agents, or employees against liability for wrongful death or negligent or intentional damage to person or property or against absolute liability for damage to person or property caused by an act or omission of the county or of any of its officers, agents, or employees when acting within the scope of their authority and the course of their employment. The board of commissioners shall determine what liabilities and what officers, agents, and employees shall be covered by any insurance purchased pursuant to this subsection.Purchase of insurance pursuant to this subsection waives the county’s governmental immunity, to the extent of insurance coverage, for any act or omission occurring in the exercise of a governmental function. 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. By entering into an insurance contract with the county, an insurer waives any defense based upon the governmental immunity of the county.If a county 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 county or any of its officers, agents, or employees acting within the scope of their authority and the course of their employment, the county board of commissioners 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 county’s governmental immunity only to the extent specified in the board’s resolution, but in no event greater than funds available in the funded reserve for the payment of claims.
If a county has waived its governmental immunity pursuant to subsection (a) of this section, any person, or if he dies, his personal representative, sustaining damages as a result of an act or omission of the county or any of its officers, agents, or employees, occurring in the exercise of a governmental function, may sue the county for recovery of damages. To the extent of the coverage of insurance purchased pursuant to subsection (a) of this section, governmental immunity may not be a defense to the action. Otherwise, however, the county has all defenses available to private litigants in any action brought pursuant to this section without restriction, limitation, or other effect, whether the defense arises from common law or by virtue of a statute.Despite the purchase of insurance as authorized by subsection (a) of this section, the liability of a county for acts or omissions occurring in the exercise of governmental functions does not attach unless the plaintiff waives the right to have all issues of law or fact relating to insurance in the action determined by a jury. The judge shall hear and determine these issues without resort to a jury, and the jury shall be absent during any motion, argument, testimony, or announcement of findings of fact or conclusions of law relating to these issues unless the defendant requests a jury trial on them.

History. 1955, c. 911, s. 1; 1973, c. 822, s. 1; 1985 (Reg. Sess., 1986), c. 1027, s. 27; 2003-175, s. 2.

Editor’s Note.

Session Laws 2003-175, s. 2, substituted “Article 23 of the General Statute Chapter 58” for “Article 39 of the General Statute of Chapter 58” without engrossing the change per code drafting guidelines. However, because the change conforms the reference to the provisions of Chapter 58 as renumbered by Session Laws 1987-752, s. 9, as amended by Session Laws 1987-975, s. 34, it has been set out as “Article 23 of the General Statute Chapter 58” at the direction of the Revisor of Statutes.

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.” Session Laws 2003-175 became effective June 12, 2003.

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 comment on the need for reform in North Carolina of local government sovereign immunity, see 18 Wake Forest L. Rev. 43 (1982).

For note as to sheriff ’s liability for prisoner suicide, in light of Helmly v. Bebber, 77 N.C. App. 275, 335 S.E.2d 182 (1985), see 64 N.C.L. Rev. 1520 (1986).

For note, “North Carolina’s New AIDS Discrimination Protection: Who Do They Think They’re Fooling?,” see 12 Campbell L. Rev. 475 (1990).

For survey of 1996 developments in tort law, see 75 N.C.L. Rev. 2468 (1997).

For comment, “ ‘Inevitable Inequities:’ The Public Duty Doctrine and Sovereign Immunity in North Carolina,” see 28 Campbell L. Rev. 271 (2006).

CASE NOTES

Editor’s Note. —

Some of the cases cited below were decided under corresponding sections of former law.

Construction with Other Provisions. —

The jurisdictional provisions of G.S. 153A-435(b) control whenever they conflict with the jurisdictional provisions of G.S. 143-291(a) . Meyer v. Walls, 122 N.C. App. 507, 471 S.E.2d 422, 1996 N.C. App. LEXIS 468 (1996), aff'd in part and rev'd in part, 347 N.C. 97 , 489 S.E.2d 880, 1997 N.C. LEXIS 595 (1997).

Waiver of Immunity by Local Agencies. —

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 N.C. App. LEXIS 2956 (1987), aff'd in part and rev'd in part, 322 N.C. 425 , 368 S.E.2d 619, 1988 N.C. LEXIS 362 (1988).

A governmental entity generally retains immunity from civil liability in its governmental capacity to the extent it does not purchase liability insurance or participate in a local government risk pool pursuant to statute. Kephart v. Pendergraph, 131 N.C. App. 559, 507 S.E.2d 915, 1998 N.C. App. LEXIS 1447 (1998).

Waiver of Immunity by Nonprofit Fire Company. —

Defendant, a nonprofit fire company employed by the county, was liable for plaintiff’s injuries in a nonfire related rescue attempt only to the extent of their insurance coverage, since they had governmental immunity up to their insurance coverages and were engaged in duties other than the suppression of a reported fire. Geiger v. Guilford College Community Volunteer Firemen's Ass'n, 668 F. Supp. 492, 1987 U.S. Dist. LEXIS 7721 (M.D.N.C. 1987).

If a rural fire department was a “fire protection district fire department” subject to the requirements of G.S. 69-25.8 and G.S. 153A-435 , the specific and limited immunity provided by G.S. 58-82-5 still applied to an action against the department and one of its firemen for personal injuries received from one of the department’s vehicles when the department and the fireman were in the process of responding to and suppressing a fire. Luhmann v. Hoenig, 161 N.C. App. 452, 588 S.E.2d 550, 2003 N.C. App. LEXIS 2187 (2003), rev'd, 358 N.C. 529 , 597 S.E.2d 763, 2004 N.C. LEXIS 674 (2004).

Fire Protection District. —

Relationship between a county and a fire department was consistent with a fire protection district, and, therefore, the fire department was entitled to sovereign immunity, but to extent of its insurance coverage, had waived its sovereign immunity and was liable for damages to an individual injured in an accident which happened while the fire department was fighting a fire. Luhmann v. Hoenig, 358 N.C. 529 , 597 S.E.2d 763, 2004 N.C. LEXIS 674 (2004).

County Department of Social Services. —

Since County Department of Social Services was not a state agency, the Tort Claims act did not apply to claim against the Department. Meyer v. Walls, 347 N.C. 97 , 489 S.E.2d 880, 1997 N.C. LEXIS 595 (1997).

Waiver of Immunity by County. —

A county may waive its immunity by purchasing liability insurance to the extent of the insurance coverage. Marlowe v. Piner, 119 N.C. App. 125, 458 S.E.2d 220, 1995 N.C. App. LEXIS 412 (1995).

County waived sovereign immunity to the extent that an insurance policy it purchased covered negligent acts committed by emergency medical technicians (EMTs) who worked for the county, and the trial court erred by dismissing a lawsuit which claimed that a person died because EMTs employed by the county were negligent. Dawes v. Nash County, 357 N.C. 442 , 584 S.E.2d 760, 2003 N.C. LEXIS 829 (2003).

Constituted Waiver of Immunity. —

By requiring a security company to obtain an insurance policy and to name the county as an additional insured, the county contracted, within the meaning of this section, to have itself insured and, thus, waived its governmental immunity. Wood v. Guilford County, 143 N.C. App. 507, 546 S.E.2d 641, 2001 N.C. App. LEXIS 307 (2001), aff'd in part and rev'd in part, 355 N.C. 161 , 558 S.E.2d 490, 2002 N.C. LEXIS 16 (2002).

Actions Against Sheriffs. —

The legislature has prescribed two ways for a sheriff to be sued in his official capacity, G.S. 58-76-5 and this section. Smith v. Phillips, 117 N.C. App. 378, 451 S.E.2d 309, 1994 N.C. App. LEXIS 1272 (1994).

Terminated deputy sheriff clearly alleged in the amended complaint that the sheriff waived his immunity from civil liability through a plan of insurance pursuant to G.S. 153A-435 ; this allegation of waiver, which the court had to take as true for the purpose of the motion to dismiss, was sufficient to overcome the sheriff’s motion to dismiss based on sovereign immunity. Efird v. Riley, 342 F. Supp. 2d 413, 2004 U.S. Dist. LEXIS 22140 (M.D.N.C. 2004).

Trial court did not err in denying a sheriff and a surety summary judgment in a former employee’s action asserting retaliatory termination because the sheriff waived governmental immunity by purchasing an official bond; the employee’s claim, if supported by adequate proof, came within the scope of the sheriff’s official duties because she alleged that the sheriff wrongfully terminated her employment in retaliation for her decision to file a workers’ compensation claim. White v. Cochran, 229 N.C. App. 183, 748 S.E.2d 334, 2013 N.C. App. LEXIS 897 (2013).

Inclusion of the sheriff in the county’s liability insurance policy did not serve to make the county liable for the sheriff’s actions or a proper or necessary defendant in plaintiff’s action against the sheriff for illegal seizure of plaintiff’s property. Goodwin v. Furr, 25 F. Supp. 2d 713, 1998 U.S. Dist. LEXIS 17591 (M.D.N.C. 1998).

Sheriffs Not Specified as Local Officials. —

This section provides for the availability of insurance for county officials sued for negligence in their official capacity, but does not identify the sheriff or his deputies as local officials nor specify judgments against them will be paid by counties. Braswell v. Ellis, 950 F. Supp. 145, 1995 U.S. Dist. LEXIS 21379 (E.D.N.C. 1995).

Local Government Risk Pool. —

The county’s self-funded loss program was not a “local government risk pool,” for purposes of determining whether that program waived the county’s governmental immunity, since the county was the sole entity retaining risks and funds under the program. Kephart v. Pendergraph, 131 N.C. App. 559, 507 S.E.2d 915, 1998 N.C. App. LEXIS 1447 (1998).

Proof of Waiver of Immunity. —

Where plaintiff alleged and offered proof of the county’s liability insurance policy, the trial court properly denied defendants’ motion to dismiss based upon governmental immunity. Smith v. Phillips, 117 N.C. App. 378, 451 S.E.2d 309, 1994 N.C. App. LEXIS 1272 (1994).

Summary judgment in favor of a county and a county environmental health administrator, in his official capacity, was proper because homeowners failed to forecast evidence showing the existence of a genuine issue of material fact as to whether they waived governmental immunity to the extent of the county’s insurance coverage; the lack of the insurance contract and exclusionary language in the record restricted the court of appeals from determining the existence of coverage for the alleged acts. Cline v. James Bane Home Bldg., LLC, 2021-NCCOA-266, 278 N.C. App. 12, 862 S.E.2d 54, 2021- NCCOA-266, 2021 N.C. App. LEXIS 279 (2021).

Self-funded Loss Program Not Insurance. —

The county’s self-funded loss program did not constitute insurance for purposes of waiving governmental immunity. Kephart v. Pendergraph, 131 N.C. App. 559, 507 S.E.2d 915, 1998 N.C. App. LEXIS 1447 (1998).

Immunity Not Waived by Ambulance Service. —

Defendant/county-operated ambulance service did not waive its immunity for claims totaling less than $250,000 since it was only insured for negligence claims equal to or above that amount. McIver v. Smith, 134 N.C. App. 583, 518 S.E.2d 522, 1999 N.C. App. LEXIS 864 (1999).

Immunity Not Waived as to Employees and Premises Not Included in Policy. —

A policy of insurance affording protection to a county against liability caused by negligence of named personnel and employees of the county and covering listed and described premises does not waive the county’s governmental immunity for negligence in the operation of a public library when the employees of the library and library premises are not included in the policy. Seibold v. City of Kinston, 268 N.C. 615 , 151 S.E.2d 654, 1966 N.C. LEXIS 1272 (1966).

Insurance policy purchased by Chatham County, North Carolina did not allow law enforcement employees to recover damages from the County, and because the County had not waived immunity from suit by law enforcement employees, the trial court properly ruled that a school resource officer (SRO) who worked for a sheriff’s department could not sue the sheriff or a chief deputy sheriff in their official capacities. However, the SRO engaged in a protected activity when he cooperated with federal agents who were investigating the sheriff, and the trial court erred when it dismissed a claim for wrongful discharge which the SRO filed against the sheriff in his individual capacity. Phillips v. Gray, 163 N.C. App. 52, 592 S.E.2d 229, 2004 N.C. App. LEXIS 248 (2004).

Immunity Not Waived Where Action Excluded from Coverage. —

Because an insurance policy did not indemnify the defendant county against the negligent acts alleged in the plaintiff’s complaint, the county had not waived its sovereign immunity. Doe v. Jenkins, 144 N.C. App. 131, 547 S.E.2d 124, 2001 N.C. App. LEXIS 350 (2001).

County’s purchase of liability insurance was not a waiver of sovereign immunity relating to a claim alleging a failure to properly inspect during a house construction and negligent issuance of permits relating to the property because a policy provision excluded construction defects such as alleged in the complaint. Norton v. SMC Bldg., 156 N.C. App. 564, 577 S.E.2d 310, 2003 N.C. App. LEXIS 206 (2003).

Because the administrators did not waive the sovereign immunity in G.S. 153A-435 through the purchase of a liability insurance policy, that excluded coverage for negligence actions, they were entitled to summary judgment. Patrick v. Wake County Dep't of Human Servs., 188 N.C. App. 592, 655 S.E.2d 920, 2008 N.C. App. LEXIS 197 (2008).

Summary judgment in favor of a County was properly granted in an action by homeowners against the County for negligent inspection and negligent misrepresentation because the County did not have insurance that would have covered the claims in the case and, therefore, there was no waiver of sovereign immunity under G.S. 153A-435 . Bullard v. Wake County, 221 N.C. App. 522, 729 S.E.2d 686, 2012 N.C. App. LEXIS 867 (2012).

County and an officer in the officer’s official capacity were entitled to summary judgment dismissing a citizen’s respondeat superior excessive force claims because the county did not waive sovereign immunity as the county’s liability insurance policy preserved the defense. Hart v. Brienza, 246 N.C. App. 426, 784 S.E.2d 211, 2016 N.C. App. LEXIS 348 (2016).

Detention officers, a sheriff, and a county did not waive immunity by purchasing liability insurance because the policy specifically stated that the parties to the insurance contract did not intend for the purchase of the coverage to waive immunity for any of the covered parties, did not intend to cover any claims to which an immunity defense applied, and that such claims were excluded from coverage. Butterfield v. Gray, 2021-NCCOA-523, 279 N.C. App. 549, 866 S.E.2d 296, 2021- NCCOA-523, 2021 N.C. App. LEXIS 538 (2021).

Immunity Not Waived By University. —

University’s motion to dismiss an employee’s state law claims against it pursuant to Fed. R. Civ. P. 12(b)(1) was granted because the university, as a state agency, enjoyed the protection of Eleventh Amendment immunity from liabilities that had to be paid from public funds; therefore, because North Carolina had not explicitly waived immunity from state court proceedings with regard to torts by state employees under G.S. 143-291 , the university did not waive its immunity through removal to federal court, nor did the university waive its immunity under G.S. 153A-435(a) by purchasing liability insurance since there was not a plain and unmistakable mandate from the General Assembly to waive immunity in these circumstances. Alston v. N.C. A&T State Univ., 304 F. Supp. 2d 774, 2004 U.S. Dist. LEXIS 1725 (M.D.N.C. 2004).

Liability Not Waived Where Action Excluded from Coverage. —

Because county liability insurance policy excluded libel action from coverage, the county did not waive its governmental immunity as to this action by purchasing the policy. Dickens v. Thorne, 110 N.C. App. 39, 429 S.E.2d 176, 1993 N.C. App. LEXIS 403 (1993).

County did not waive immunity to suit by means of insurance because the policy expressly preserved governmental immunity. Perry v. Pamlico County, 88 F. Supp. 3d 518, 2015 U.S. Dist. LEXIS 20152 (E.D.N.C. 2015).

Failure to Plead Waiver of Immunity. —

Lienholder that sought damages from a county, based on its claim that the county was liable for negligent acts committed by its tax collector, did not state a valid claim for recovery because it failed to allege that the county had waived governmental immunity. Oakwood Acceptance Corp., LLC v. Massengill, 162 N.C. App. 199, 590 S.E.2d 412, 2004 N.C. App. LEXIS 118 (2004).

Liability for Injury on Public Walk Within Courthouse Grounds. —

The liability of a county for injuries sustained by a pedestrian falling on a public walk within the courthouse grounds is no more extensive than the liability of a city to a pedestrian falling upon a public sidewalk maintained by the city. Cook v. County of Burke, 272 N.C. 94 , 157 S.E.2d 611, 1967 N.C. LEXIS 974 (1967).

Failure to Protect Minors. —

For case reversing summary judgment in favor of defendants county and social worker in case alleging their tort liability for failure to protect minors from harm, see Coleman v. Cooper, 89 N.C. App. 188, 366 S.E.2d 2, 1988 N.C. App. LEXIS 281 (1988).

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 N.C. App. LEXIS 468 (1996), aff'd in part and rev'd in part, 347 N.C. 97 , 489 S.E.2d 880, 1997 N.C. LEXIS 595 (1997).

Jurisdiction of Federal Courts. —

Former G.S. 153-9(44), similar to this section, providing that the injured person could sue “in any court of competent jurisdiction in such county,” did not attempt to limit jurisdiction to a State court in such county, nor to a court of such county; the United States District Court was a court of competent jurisdiction in the county. Moreover, even if the legislative intent was to deprive the federal court of jurisdiction, it could not do so, as federal jurisdiction cannot be defeated by a State statute prescribing the court in which an action is to be brought. Knighton v. Johnston County, 330 F. Supp. 652, 1971 U.S. Dist. LEXIS 12259 (E.D.N.C. 1971).

Allegations of Complaint. —

It is appropriate for the complaint to contain allegations regarding liability insurance and waiver of governmental immunity. Wilkie v. Henderson County, 1 N.C. App. 155, 160 S.E.2d 505, 1968 N.C. App. LEXIS 1030 (1968).

When suing a county or its officers, agents or employees, the complainant must allege waiver of immunity by a county contracting to insure itself in order to recover. Absent an allegation to the effect that immunity has been waived, the complaint fails to state a cause of action against the county. Clark v. Burke County, 117 N.C. App. 85, 450 S.E.2d 747, 1994 N.C. App. LEXIS 1162 (1994).

Trial court properly denied motions filed by a county, the county department of social services (DSS), DSS supervisory employees, and social workers to dismiss a father’s claims against them in their official capacities because if they purchased liability insurance as the father alleged, they could be liable for negligent or intentional actions carried out in the performance of their duties. Christmas v. Cabarrus County, 192 N.C. App. 227, 664 S.E.2d 649, 2008 N.C. App. LEXIS 1532 (2008).

Motion to Dismiss. —

County’s motion to dismiss a personal injury action was properly denied because plaintiffs’ first amended complaint specifically alleged, inter alia, that the county had purchased insurance pursuant to G.S. 153A-435 and thus had waived its immunity; although an affidavit proffered by the county claimed that it had not purchased insurance, on the motion to dismiss, the trial court declined to consider the affidavit, and so did the appellate court. Based only on the pleadings, plaintiffs alleged sufficient facts to survive a dismissal on the basis of governmental immunity. Robinson v. Smith, 219 N.C. App. 518, 724 S.E.2d 629, 2012 N.C. App. LEXIS 382 (2012).

Protection against prejudice is afforded by providing that no part of the pleadings relating to liability insurance shall be read or mentioned in the presence of the trial jury. Wilkie v. Henderson County, 1 N.C. App. 155, 160 S.E.2d 505, 1968 N.C. App. LEXIS 1030 (1968).

Where a county is covered by a policy of liability insurance, the question of governmental immunity from suit from injuries caused by alleged negligence does not arise with reference to the validity of a judgment of nonsuit. Cook v. County of Burke, 272 N.C. 94 , 157 S.E.2d 611, 1967 N.C. LEXIS 974 (1967).

As a county, a county social service agency, and agency employees in their official capacities were covered by general liability and public officials liability policies with respect to a claim of negligent supervision of a juvenile which was asserted by a decedent’s estate administrator, they were not entitled to governmental immunity under G.S. 153A-435(a); the administrator alleged that due to the lack of supervision of the juvenile, who had a history of violence and psychiatric problems, the juvenile fatally stabbed the decedent, who lived next to the juvenile’s grandmother. Fulford v. Jenkins, 195 N.C. App. 402, 672 S.E.2d 759, 2009 N.C. App. LEXIS 147 (2009), writ denied, 368 N.C. 769 , 784 S.E.2d 166, 2016 N.C. LEXIS 252 (2016).

Public duty doctrine did not bar a negligent home inspection claim and a liability insurance covering law officers did not waive sovereign immunity as building inspectors were not officers; summary judgment for the county was proper. Kennedy v. Haywood County, 158 N.C. App. 526, 581 S.E.2d 119, 2003 N.C. App. LEXIS 1174 (2003).

Immunity Not Waived by County. —

Strictly construing the plain language of G.S. 153A-435 ’s immunity waiver to apply to insurance policies actually purchased by the county, the court held that a former volunteer treasurer for an emergency medical services provider failed to establish a genuine issue of material fact that the county waived its immunity where the franchise agreement requiring the policy made clear that such a policy was purchased, if at all, by the provider, not by the county, and the franchise agreement explicitly provided that nothing in its indemnification provision was intended to affect or abrogate the county’s governmental immunity. Fuller v. Wake Cty., 254 N.C. App. 32, 802 S.E.2d 106, 2017 N.C. App. LEXIS 459 (2017).

Trial court properly dismissed property owners’ common law tort claims against a county based on immunity because the terms of an excess insurance policy did not waive the county’s governmental immunity; the policy language stated that the insurer’s obligation to pay was not triggered until a judgment was entered against the county or the county agreed to pay the claim, with the insurer’s approval, and the owners did not show that either of those triggering events had occurred. Ballard v. Shelley, 257 N.C. App. 561, 811 S.E.2d 603, 2018 N.C. App. LEXIS 112 (2018).

Damage Limitations. —

Where government entities waive the defense of sovereign immunity by their purchase of liability insurance, recoverable damages are capped at policy limits. Meyer v. Walls, 122 N.C. App. 507, 471 S.E.2d 422, 1996 N.C. App. LEXIS 468 (1996), aff'd in part and rev'd in part, 347 N.C. 97 , 489 S.E.2d 880, 1997 N.C. LEXIS 595 (1997).

§ 153A-436. Photographic reproduction of county records.

A county may provide for the reproduction, by photocopy, photograph, microphotograph, or any other method of reproduction that gives legible and permanent copies, of instruments, documents, and other papers filed with the register of deeds and of any other county records. The county shall keep each reproduction of an instrument, document, paper, or other record in a fire-resistant file, vault, or similar container. If a duplicate reproduction is made to provide a security-copy, the county shall keep the duplicate in a fire-resistant file, vault, or similar container separate from that housing the principal reproduction.If a county has provided for reproducing records, any custodian of public records of the county may cause to be reproduced any of the records under, or coming under, his custody.
If a county has provided for reproducing some or all county records, the custodian of any instrument, document, paper, or other record may permit it to be removed from its regular repository for up to 24 hours in order to be reproduced. An instrument, document, paper or other record may be removed from the county in order to be reproduced. The board of commissioners may permit an instrument, document, paper, or other record to be removed for longer than 24 hours if a longer period is necessary to complete the process of reproduction.
The original of any instrument, document, or other paper received by the register of deeds and reproduced pursuant to this Article shall be filed, maintained, and disposed of in accordance with G.S. 161-17 and G.S. 121-5 . The original of any other county record that is reproduced pursuant to this Article may be kept by the county or disposed of pursuant to G.S. 121-5 .
If an instrument, document, or other paper received by the register of deeds is reproduced pursuant to this Article, the recording of the reproduction is a sufficient recording for all purposes.
A reproduction, made pursuant to this Article, of an instrument, document, paper, or other record is as admissible in evidence in any judicial or administrative proceeding as the original itself, whether the original is extant or not. An enlargement or other facsimile of the reproduction is also admissible in evidence if the original reproduction is extant and available for inspection under the direction of the court or administrative agency.
The provisions 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. 1945, c. 286, ss. 1-7; c. 944; 1951, c. 19, ss. 1-6; 1953, c. 675, ss. 23, 24; 1957, c. 330, s. 3; 1973, c. 822, s. 1; 1999-131, s. 4; 1999-456, s. 47(d); 2011-326, s. 13(d).

Effect of Amendments.

Session Laws 2011-326, s. 13(d), 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.

§ 153A-436.1. SBI and State Crime Laboratory access to view and analyze recordings.

The local law enforcement agency of any county 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. 132-1.4 A 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(a).

Cross References.

As to rights of crime victims and witnesses, see G.S. 15A-824 et seq.

As to various similar provisions pertaining to SBI and State Crime Laboratory access to view and analyze recordings, see G.S. 114-64 and G.S. 160A-490.1 .

As to law enforcement agency recordings, see G.S. 132-1.4 A.

Editor’s Note.

Session Laws 2016-88, s. 2(a), enacted this section as G.S. 153A-458 . It was redesignated as this section at the direction of the Revisor of Statutes.

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.

§ 153A-437. Assistance to historical organizations.

A county or city may appropriate revenues not otherwise limited as to use by law to a local historical or preservation society, museum, or other similar organization. Before such an appropriation may be made, the recipient organization shall adopt and present to the county or city a resolution requesting the funds and describing the intended use of the funds. The funds may be used for preserving historic sites, buildings, structures, areas, or objects; for recording and publishing materials relating to the history of the area; for establishing or maintaining historical museums or projects; for paying salaries of personnel employed in such museums or projects; for the costs of acquiring, recording, and maintaining materials and equipment; and for any other purposes that are approved by the county or city and that contribute to the preservation of historic sites, buildings, structures, areas, or objects, or historic materials. The ordinance making the appropriation shall state specifically what the appropriation is to be used for, and the governing board of the county or city shall require that the recipient account for the appropriation at the close of the fiscal year.
A county or city, a board of education, or the board of trustees of a public library may make available space in a building under its control to a local historical society, historical museum, or other historical organization.
This section is supplemental to and does not supersede any other law.

History. 1955, c. 371, ss. 1-4; 1957, c. 398; 1973, c. 822, s. 1.

Legal Periodicals.

For article discussing legal issues of historic preservation for local government in North Carolina, see 17 Wake Forest L. Rev. 707 (1981).

§ 153A-438. Beach erosion control and flood and hurricane protection works.

A county may appropriate revenues not otherwise limited as to use by law to finance 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 that are designed for controlling beach erosion, for protection from hurricane floods, or for preserving or restoring facilities and natural features that afford protection to the beaches and other land areas of the county and to the life and property of the county.

History. 1965, c. 307, s. 1; 1971, c. 1159, s. 3; 1973, c. 822, s. 1.

§ 153A-439. Support of extension activities; personnel rules for extension employees.

A county may support the work of the North Carolina Cooperative Extension Service and for these purposes may appropriate revenues not otherwise limited as to use by law.
The policies adopted by the Board of Trustees of North Carolina State University for the employees of the North Carolina Cooperative Extension Service shall govern the employment of employees exempted from certain provisions of Chapter 126 of the General Statutes pursuant to G.S. 126-5(c1)(9a). The policies adopted by the University of North Carolina Board of Governors and the employing constituent institution shall govern the employment of employees of the North Carolina Cooperative Extension Service exempted from certain provisions of Chapter 126 of the General Statutes pursuant to G.S. 126-5(c1)(8).

History. 1911, c. 1; C.S., s. 1297; 1957, c. 1004, s. 5; 1973, c. 822, s. 1; 2007-195, s. 3.

Effect of Amendments.

Session Laws 2007-195, s. 3, effective July 8, 2007, added the subsection (a) designation, substituted “Cooperative” for “Agricultural” in the first paragraph, deleted the former second paragraph, which read: “If a county adopts rules and regulations concerning annual leave, sick leave, hours of employment, and holidays that apply to county employees generally, these rules and regulations apply to county extension employees. Otherwise, the rules and regulations adopted by the North Carolina Agricultural Extension Service concerning these matters apply to county extension employees.”; and added subsection (b).

§ 153A-440. Promotion of soil and water conservation work.

A county may cooperate with and support the work of the Federal Soil Conservation Service and the State and local soil and water conservation agencies and districts and for these purposes may appropriate revenues not otherwise limited as to use by law.

History. 1959, c. 1213; 1961, cc. 266, 290, 301, 579, 581, 582, 584, 656, 693, 705, 809, 1126; 1963, cc. 290, 701; 1965, cc. 531, 702; 1967, c. 319; 1969, c. 64, s. 1; c. 174, s. 1; c. 1003, s. 1; 1973, c. 822, s. 1.

§ 153A-440.1. Watershed improvement programs; drainage and water resources development projects.

A county may establish and maintain a county watershed improvement program pursuant to G.S. 139-41 or 139-41.1 and for these purposes may appropriate funds not otherwise limited as to use by law. A county watershed improvement program or project may also be financed pursuant to G.S. 153A-301 , G.S. 153A-185 or by any other financing method available to counties for this purpose.
A county may establish and maintain drainage projects and water resources development projects (as those projects are defined by G.S. 153A-301 ) and for these purposes may appropriate funds not otherwise limited as to use by law. A county drainage project or water resources development project may also be financed pursuant to G.S. 153A-301 , G.S. 153A-185 , or by any other financing method available to counties for this purpose.

History. 1981, c. 251, s. 2; 1983, c. 321, ss. 5, 6.

§ 153A-441. County surveyor.

A county may appoint as county surveyor a person licensed as a professional land surveyor pursuant to Chapter 89C of the General Statutes.

History. Const., art. 7, s. 1; Rev., s. 4296; C. S., s. 1383; 1959, c. 1237, s. 1; 1973, c. 822, s. 1; 2020-69, s. 5.4.

Effect of Amendments.

Session Laws 2020-69, s. 5.4, effective July 1, 2020, rewrote the section which formerly read: “A county may appoint a person registered as a land surveyor pursuant to Chapter 89 as county surveyor.”

§ 153A-442. Animal shelters.

A county 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. 822, s. 1; 2004-199, s. 39(a).

Effect of Amendments.

Session Laws 2004-199, s. 39(a), effective August 17, 2004, added the last sentence.

§ 153A-443. Redesignation of site of “courthouse door,” etc.

If a county determines that the traditional location of the “courthouse,” the “courthouse door,” the “courthouse bulletin board” or the “courthouse steps” has become inappropriate or inconvenient for the doing of any act or the posting of any notice required by law to be done or posted at such a site, the county may by ordinance designate some appropriate or more convenient location for the site. The board of commissioners shall cause such an ordinance to be published at least once within 30 days after the day it is adopted and shall cause a copy of it to be posted for 60 days at the traditional location.

History. 1973, c. 822, s. 1.

§ 153A-444. Parks and recreation.

A county may establish parks and provide recreational programs pursuant to Chapter 160A, Article 18.

History. 1973, c. 822, 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 N.C. App. LEXIS 1710 (2009).

§ 153A-445. Miscellaneous powers found in Chapter 160A.

A county may take action under the following provisions of Chapter 160A:
1. Chapter 160A, Article 20, Part 1. — Joint Exercise of Powers.
2. Chapter 160A, Article 20, Part 2. — Regional Councils of Governments.
3. G.S. 160A-487 . — Financial support for rescue squads.
4. G.S. 160A-488 . — Art galleries and museums.
5. G.S. 160A-492 . — Human relations programs.
6. G.S. 160A-497 . — Senior citizens programs.
7. G.S. 160A-489 . — Auditoriums, coliseums, and convention and civic centers.
8. G.S. 160A-498 . — Railroad corridor preservation.
This section is for reference only, and the failure of any section of Chapter 160A to appear in this section does not affect the applicability of that section to counties.

History. 1973, c. 822, s. 1; 1975, c. 19, s. 61; 1979, 2nd Sess., c. 1094, s. 3; 1981, c. 692, s. 3; 1989, c. 600, s. 6.

Cross References.

As to authority of counties, cities and towns to appropriate money for payment to the North Carolina Association of County Commissioners and the North Carolina League of Municipalities for the purpose of financing a local government center in the City of Raleigh, see G.S. 160A-495 .

Editor’s Note.

Session Laws 1979, 2nd Sess., c. 1094, which added subdivision (6) of subsection (a), 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.

§ 153A-446. County may offer reward for information as to persons damaging county property.

The board of county commissioners is authorized to offer and pay rewards in an amount not exceeding five hundred dollars ($500.00) for information leading to the arrest and conviction of any person who willfully defaces, damages or destroys, or commits acts of vandalism or larceny of any county property. The amount necessary to pay said rewards shall be an item in the current expense budget of the county.

History. 1975, c. 258.

§ 153A-447. Certain counties may appropriate funds to Western North Carolina Development Association, Inc.

The board of county commissioners of the counties hereafter named are authorized to appropriate funds to the Western North Carolina Development Association, Inc., for the public good and welfare of said counties. The amount to be expended by each county shall be determined in the discretion of the board of commissioners.
This section shall apply to the counties of Avery, Buncombe, Burke, Cherokee, Clay, Graham, Haywood, Henderson, Jackson, McDowell, Macon, Madison, Mitchell, Polk, Rutherford, Swain, Transylvania, and Yancey.

History. 1979, c. 674, ss. 1, 2.

§ 153A-448. Mountain ridge protection.

Counties may enact and enforce mountain ridge protection ordinances pursuant to Article 14 of Chapter 113A of the General Statutes, and in such enactment and enforcement shall comply with all applicable provisions of Article 14 unless the county has removed itself from the coverage of Article 14 through the procedure provided by law.

History. 1983, c. 676, s. 2.

Legal Periodicals.

For article, “The Evolution of Modern North Carolina Environmental and Conservation Policy Legislation,” see 29 Campbell L. Rev. 535 (2007).

§ 153A-449. Contracts with private entities; contractors must use E-Verify.

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

History. 1985, c. 271, s. 2; 2013-413, s. 5(c); 2013-418, s. 2(a); 2014-119, s. 13(b); 2015-294, s. 1(c); 2016-3, 2nd Ex. Sess., s. 2.2; 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.”

Editor’s Note.

Session Laws 2013-413, s. 5(e), made the amendment to this section by Session Laws 2013-413, s. 5(c), applicable to contracts entered on or after August 23, 2013.

Session Laws 2013-413, s. 61(a) is a severability clause.

Session Laws 2014-119, s. 13(c), made the amendment to subsection (b) by Session Laws 2014-119, s. 13(b), applicable to contracts entered into on or after October 1, 2014.

Editor’s Note.

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. 2.2, 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).

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 expired on December 1, 2020.

Effect of Amendments.

Session Laws 2014-119, s. 13(b), 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(c), effective October 1, 2015, repealed subsection (b), which read: “Contractors Must Use E-Verify. — No county may enter into a contract subject to G.S. 143-129 unless the contractor and the contractor’s subcontractors comply with the requirements of Article 2 of Chapter 64 of the General Statutes.” For applicability, see editor’s note.

§ 153A-450. Contracts for construction of satellite campuses of community colleges.

Boards of county commissioners may enter into contracts for the construction of satellite campuses of community colleges, to be located in their counties.
The board of county commissioners of the county in which a satellite campus of a community college is to be constructed shall submit the plans for the satellite facility’s construction to the board of trustees of the community college that will be operating the facility for its approval prior to entering into any contract for the construction of the satellite facility.
A satellite facility may be used only as a satellite facility of the community college that operates it and for no other purpose except as approved by the board of trustees of the community college that has been assigned the county where the satellite facility is located as a service delivery area either by an act of the General Assembly or by the State Board of Community Colleges.

History. 1985, c. 757, s. 148(b), (d), (e); 1987, c. 564, ss. 11, 12.

§ 153A-451. Reimbursement agreements.

A county may enter into reimbursement agreements with private developers and property owners for the design and construction of municipal infrastructure that is included on the county’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.
A county shall enact ordinances setting forth procedures and terms under which such agreements may be approved.
A county may provide for such reimbursements to be paid from any lawful source.
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 county.

History. 2005-426, s. 8(b).

Editor’s Note.

Session Laws 2005-41, effective May 16, 2005, enacts similar provisions for the Towns of Apex, Broadway, Cary, Goldston, Holly Springs, Pittsboro, and Siler City, to the City of Sandford, 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.

§ 153A-452. [Repealed]

Repealed by Session Laws 2019-111, s. 2.6(h), 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. 2005-447, s. 1; repealed by 2019-111, s. 2.6(h), as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d).

Editor’s Note.

Former G.S. 153A-452 prohibited the restriction of certain forestry activities.

Session Laws 2005-447, s. 1, enacted this section as G.S. 153A-451 . The section was redesignated as G.S. 153A-452 at the direction of the Revisor of Statutes.

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

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

“(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.”

§ 153A-453. Quarterly reports by Mental Health, Developmental Disabilities, and Substance Abuse Services area authority or county program.

Quarterly reports by the area director and finance officer of Mental Health, Developmental Disabilities, and Substance Abuse Services area authorities or county programs shall be submitted to the county finance officer as provided under G.S. 122C-117(c).

History. 2006-142, s. 3(b).

§ 153A-454. Stormwater control.

A county may adopt and enforce a stormwater control ordinance to protect water quality and control water quantity. A county may adopt a stormwater management ordinance pursuant to this Chapter, other applicable laws, or any combination of these powers.
A federal, State, or local government project shall comply with the requirements of a county stormwater control ordinance unless the federal, State, or local government agency has a National Pollutant Discharge Elimination System (NPDES) stormwater permit that applies to the project. A county may take enforcement action to compel a State or local government agency to comply with a stormwater control ordinance that implements the National Pollutant Discharge Elimination System (NPDES) stormwater permit issued to the county. To the extent permitted by federal law, including Chapter 26 of Title 33 of the United States Code, a county may take enforcement action to compel a federal government agency to comply with a stormwater control ordinance.
A county may implement illicit discharge detection and elimination controls, construction site stormwater runoff controls, and post-construction runoff controls through an ordinance or other regulatory mechanism to the extent allowable under State law.
A county that holds a National Pollutant Discharge Elimination System (NPDES) permit issued pursuant to G.S. 143-214.7 may adopt an ordinance to establish the stormwater control program necessary for the county to comply with the permit. A county may adopt an ordinance that bans illicit discharges. A county may adopt an ordinance that requires (i) deed restrictions and protective covenants to ensure that each project, including the stormwater management system, will be maintained so as to protect water quality and control water quantity and (ii) financial arrangements to ensure that adequate funds are available for the maintenance and replacement costs of the project.

History. 2006-246, s. 17(a).

Editor’s Note.

Session Laws 2006-246, s. 20, made this section retroactively effective July 1, 2006.

Implementation of Federal Phase II Stormwater Management Requirements and Protection of Water Quality, as Recommended by Environmental Review Commission.

For requirements necessitated by temporary implementation of federal Phase II Stormwater Management and the Stormwater Management Rules, see notes regarding Session Laws 2006-246 under G.S. 143-214.7 .

See notes regarding Session Laws 2008-211, as amended by Session Laws 2008-198, ss. 5 and 6(a), under G.S. 143-214.7 .

§ 153A-455. [Repealed]

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

History. 2009-522, s. 2; 2010-167, s. 4(a); repealed by 2019-111, s. 2.6(i), 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. 153A-455 pertained to the program to finance energy improvements.

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

“(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.”

§ 153A-456. Limitation on the use of public funds.

A county 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(a).

Cross References.

As to limitation on the use of public funds by local boards of education, see. G.S. 115C-46.1 .

As to limitation on the use of public funds by municipalities, see G.S. 160A-499.3 .

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.

§ 153A-457. Notice prior to construction.

A county shall notify the property owners and adjacent property owners prior to commencement of any construction project by the county.
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 county 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 county 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 county prior to the commencement of the construction project.
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(a); 2015-286, s. 1.8(c).

Effect of Amendments.

Session Laws 2015-286, s. 1.8(c), effective October 22, 2015, in subdivision (b)(1), deleted “a repair” following “If the construction is” at the beginning and substituted “construction” for “repair” at the end; and added subsection (c).

§ 153A-458. Submission of statement concerning improvements.

A county may by ordinance require that when a property owner improves property at a cost of more than two thousand five hundred dollars ($2,500) but less than five thousand dollars ($5,000), the property owner must, within 14 days after the completion of the work, submit to the county assessor a statement setting forth the nature of the improvement and the total cost thereof.

History. 2019-111, s. 2.7; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).

Editor’s Note.

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

Session Laws 2019-111, s. 3.2 provided for the delayed enactment 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 enactment date 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.

“(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.”

§ 153A-459. County broadband acceleration.

A county may provide grants to unaffiliated private or nonprofit providers of broadband service, as that term is defined in G.S. 143B-1373(a)(2), for the purpose of expanding broadband service in unserved areas in the county. The grants shall be awarded on a technology neutral basis, shall be open to all private or nonprofit providers of broadband service, and may require matching funds by the private or nonprofit providers. A county shall seek and consider requests for proposal from providers prior to awarding a broadband grant and shall use reasonable means to ensure that potential applicants are made aware of the grant; provided, however, a county is not required to seek and consider requests for proposal when providing financial or other support in connection with an application from a private provider for a broadband service grant under G.S. 143B-1373. The county may use general fund revenue as well as State or federal funds for the grants. For purposes of this section, the term “unserved area” has the same meaning as in G.S. 143B-1373(a)(14). For any grants awarded pursuant to this section after the date this section becomes effective, the term “unserved area” shall not include any location where a private provider has been designated to receive funds through State- or federally funded programs designed specifically for broadband service deployment if the recipient of the funding is in good standing with the grantor agency’s requirements regarding construction build-out and time lines. Nothing in this section authorizes a county to provide high-speed Internet broadband service.

History. 2019-111, s. 2.7; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d); 2021-180, s. 38.10(a).

Editor’s Note.

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

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

“(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 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2021-180, s. 38.10(a), effective November 18, 2021, substituted “County broadband acceleration” for “Authorization to provide grants” in the catchline, and rewrote the section.

§§ 153A-460 through 153A-470.

Reserved for future codification purposes.

Article 24. Unified Government.

§ 153A-471. Unified government.

Except as provided in this section, the powers, duties, functions, rights, privileges, and immunities of a city are vested with any county that has either:
1. No portion of an incorporated municipality located within its boundaries; or
2. One incorporated municipality located within the county, but the land area of that municipality is located primarily in another county and consists of less than 100 acres within the county exercising powers under this Article.
All of the following shall apply to any county exercising the powers, duties, functions, rights, privileges, and immunities of a city under this Article:
1. It may not exercise any such powers, duties, functions, rights, privileges, and immunities outside the boundaries of the county.
2. Article 4A of Chapter 160A of the General Statutes (Extension of Corporate Limits) does not apply.
3. Article 5 of Chapter 160A of the General Statutes (Form of Government) does not apply.
4. Article 7 of Chapter 160A of the General Statutes (Administrative Offices) does not apply.
5. Article 13 of Chapter 160A of the General Statutes (Law Enforcement) does not apply.
6. G.S. 153A-340(b) (Zoning of Bona Fide Farms) shall apply to all areas within the county boundaries.
7. The provisions of Chapter 163 of the General Statutes relating to municipal elections do not apply except to the extent they applied to the county absent this Article.
8. If the county is subject to this Article under subdivision (a)(2) of this section, it may not exercise any such powers, duties, functions, rights, privileges, and immunities within the corporate limits of the municipality located partly within the county.
The board of commissioners may by ordinance provide that this Article does not confer the power, duty, function, right, privilege, or immunity of a city upon the county as to a specific power, duty, function, right, privilege, or immunity, and as to such specified power, duty, function, right, privilege, or immunity it shall not be considered as a city.
If the board of commissioners exercises any power, duty, function, right, privilege, or immunity authorized under both Chapter 153A and Chapter 160A of the General Statutes, and those statutes conflict, the board of commissioners shall state in their minutes under which Chapter the power, duty, function, right, privilege, or immunity is being exercised.

History. 2005-35, s. 1; 2005-433, s. 10(a); 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 technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification. Pursuant to this authority, the Revisor substituted “Subchapter III of Chapter 163A” for “Chapter 163” in subdivision (b)(7).

Effect of Amendments.

Session Laws 2005-433, s. 10(a), effective September 22, 2005, rewrote subsection (a); and added subdivision (b)(8).

§ 153A-472. Definitions.

For the purposes of this Article, any statutory reference to:

A city shall be construed as a reference to a county.
A city council or governing board shall be construed as a reference to the board of commissioners.
The mayor shall be construed as a reference to the chair of the board of commissioners.
Any other city official shall be construed as a reference to the equivalent county official.

History. 2005-35, s. 1.

§ 153A-472.1. Property tax levy.

If a county is subject to this Article under G.S. 153A-471(a)(2), it may not levy property taxes on the entire county for any function authorized by this Article but not otherwise authorized by law for counties. Instead, the county may establish a county service district under Part 1 of Article 16 of this Chapter, to consist of the entire area of the county not in an incorporated municipality.

History. 2005-433, s. 10(a).

§ 153A-473. Applicability.

This Article only applies to a county if approved by the qualified voters of the county in a referendum called by the board of commissioners in accordance with G.S. 163-287 . The referendum shall be conducted by the county board of elections in accordance with the provisions of law generally applicable to special elections. The ballot question shall be determined by the board of commissioners after consultation with the county attorney as to form.

History. 2005-35, s. 1; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.

Re-recodification; Technical and Conforming Changes.