Committee discusses video bill; significant amendments needed

The House Finance Committee on Thursday discussed a new version of the video franchising bill, but took no vote. The current committee substitute for HB 2047 – Video Franchising is still unacceptable to cities and towns. In brief remarks – we were allowed one minute -- we outlined the concerns of municipal officials about the legislation and urged legislators to take the time necessary to deliberate carefully on these issues.

Some of the bill sponsors portrayed this as a carefully crafted consensus/compromise bill, and said that any amendments would disturb that balance. We said that our municipal membership certainly has not signed on to any such compromise, that no one should view this bill as untouchable or off-limits to amendments, and that significant amendments are necessary in the public interest.

Although we managed, working with other groups, to slow this bill down, some version likely will come out of committee. The legislation seems to be on the fast track and is scheduled in House Finance again for this Tuesday, June 6. We need you to ask your House members to support a version that addresses our legitimate concerns. We need careful consideration of a number of amendments to ensure true competition in video franchising and protection of the public interest.

Key provisions of the committee substitute include the following:

o Preempts local government authority to grant or renew a cable franchise as of January 1, 2007 and replaces it with state franchising authority.

o Distributes revenues to local governments to replace the local franchise fee. Shared revenues include percentages of three state taxes: the telecommunications sales tax; the cable/video services sales tax; and the satellite sales tax. Initial projections indicate that local governments would be kept whole under this plan.

o Expressly states that there are no build-out requirements for providers with a state franchise. Includes weak anti-discrimination provisions.

o Still allows a cable provider to get out of its existing local franchise agreement when a provider under the state franchise makes service available to one household in a cable company’s existing franchise area.

o Specifies that a city’s regulation of public rights of way is governed by G.S. 160A. Adds a provision amending the authority to regulate streets by stating that “in exercising this power, a city may not impose a fee or charge for use of the public right-of-way unless the fee or charge applies uniformly to all non-municipal users of the public right-of-way.” The new language did not appear until Tuesday night of this week and was not part of any prior discussion. We are seeking comment from our municipal attorneys.

o Customer service complaints are to be directed to the Attorney General’s office. (An earlier version had local governments responsible for complaints even though they would have no authority over companies providing service.)

o Provides for public, educational and governmental (PEG) channels as follows: Cities with a population of at least 50,000 would have a minimum of three initial PEG channels (those under 50,000 a minimum of two initial PEG channels), plus channels in excess of the minimum that are activated as of January 1, 2007 under the terms of an existing franchise agreement.. A city that does not have seven PEGs is eligible for an additional PEG if it meets specified programming requirements. Includes some mechanisms for providing financial support to local governments for PEG channels, with a total cap of $2 million annually.

o Requires providers under the state franchise to provide free basic cable service upon request to a public building located within 125 feet of the cable system.

Eminent domain bill advances
The House Judiciary III Committee gave a favorable report to HB 1965 – Eminent Domain Restrictions on Thursday. This bill would make statutory changes to clarify that eminent domain may not be used for general economic development purposes. The bill restricts the use of eminent domain solely to the purposes listed in G.S. 40A-3 and repeals any local acts granting eminent domain authority for purposes others than those listed in G.S. 40A-3. Municipalities that would be affected by the repeal of local acts are Asheville, Charlotte, Durham, Greensboro, Hot Springs, Lumberton, and Raleigh. It further prohibits use of the authority for certain economic development projects financed by revenue bonds.

The League does not oppose HB 1965. It reflects what we believe to be the law already--that local governments in North Carolina do not have broad powers to condemn for economic development purposes, and what happened in the Kelo v. New London case cannot happen here. HB 1965 is a reasonable clarification of the statutes, and no constitutional amendment is necessary.

Stormwater bill may add new towns
The League is negotiating legislation that would resolve differences between Phase II stormwater legislation adopted in 2004 and the final rules on Phase II adopted by the Environmental Management Commission in 2005. This probably will be done through changes to SB 1566 – Stormwater Management 2006, sponsored by Sen. Dan Clodfelter.

Currently under discussion is a proposal to add 26 entire counties to the areas subject to Phase II requirements. This would result in the addition of about 100 municipalities that are located within those counties to Phase II coverage. (Phase I covered six cities, and 123 cities were federally designated under Phase II.)

The N.C. Department of Environment and Natural Resources (DENR) would be responsible for administering the program for the new areas covered. The additional counties and towns would not be required to adopt their own Phase II program. Development within those towns and counties, however, would be subject to certain stormwater management regulations, with developers obtaining their permits from DENR.

The additional counties proposed to come under Phase II regulations include the following: Alamance, Brunswick, Cabarrus, Catawba, Chatham, Cumberland, Davie, Durham, Edgecombe, Forsyth, Franklin, Gaston, Guilford, Harnett, Henderson, Hoke, Mecklenburg, Nash, New Hanover, Onslow, Orange, Pitt, Randolph, Union, Wake, and Wayne. [Municipalities within these counties also would come under the regulations – see above.] If your town is affected, please contact us with your feedback on this proposal.

Interbasin transfer bill would impose additional requirements
SB 1561 – Amend Interbasin Transfer Laws, introduced by Sen. Dan Clodfelter, would require significant additional information in the petition for an interbasin transfer and in the environmental assessment or impact statement. The bill prohibits the Environmental Management Commission (EMC) from granting a certificate of transfer if the proposed transfer will supply more than five percent of the water used by the applicant. Before authorizing a transfer, the EMC would be required to determine whether the proposed transfer will have a detrimental impact on the future water supplies of local governments that make withdrawals from the source water body. The original version of the bill would have required an applicant for interbasin transfer to include a letter of support from each downstream public water supplier that withdraws from the source water body stating that the proposed transfer would not negatively affect existing water users. However, the Senate Agriculture and Environment Committee now is considering a committee substitute that would remove that provision. Please let us know of any comments or concerns.

Statewide tipping fee proposed
Gov. Mike Easley has proposed a statewide solid waste tipping fee of $2 per ton, and Rep. Phil Haire has introduced a bill regarding this issue. HB 2845 - Statewide Waste Tipping Fees/Permit Fees would impose the $2 per ton fee on disposal of solid waste in any permitted landfill and on the transfer of solid waste to a transfer station for disposal outside the state. DENR would use fee proceeds to address the environmental and economic impacts of solid waste disposal, including remediation of contamination resulting from disposal of solid waste, redevelopment of contaminated sites, and support for local government solid waste reduction and recycling initiatives. The bill also imposes new permit fees and annual fees for solid waste management facilities. The League has existing policy to oppose statewide tipping fees.

More bills to return local funds
In addition to those we reported last week, two more bills have been introduced that would return the $209 million in local money withheld from cities and counties during the 2002 state budget crisis. Sen. Phil Berger is the sponsor of SB 1981 – Local Government Reimbursements and Sen. Andrew Brock is the sponsor of SB 2054 - Reimburse Trust Funds/Rebate. We appreciate the efforts of these and other legislators to assist local governments.

Reduced number of mailed copies of bulletin
The League now is mailing one copy of the Legislative Bulletin to each member municipality (addressed to the manager, administrator or clerk); to each affiliate NCLM member; and to any official requesting a mailed copy. The copy mailed to each municipality is intended as a file copy and is addressed to the chief administrative official. If other officials want to continue receiving the bulletin by U.S. mail, please call the League office at 919 715-4000 or write us at P.O. Box 3069, Raleigh, NC 27602.

We are sending an electronic version of the bulletin to all elected and key appointed officials for whom we have an email address. We will be happy to add individuals to this electronic list. Please send the name, municipality, and email address to league.bulletin@nclm.org.

Following are some of the bills that were introduced or acted upon this week. If you need a copy of these or any other bills, please contact the Legislative Printed Bills Office at 919-733-5648 or the League office. Remember that bills and legislative calendars are now available on the Internet at http://www.ncleg.net. Please contact the League staff if you have any particular interest or concern regarding any piece of legislation.

ENVIRONMENT

HB 2161 Amend Environmental Laws 2006
Among other things, adds new G.S. 160A-459 to authorize cities to adopt and enforce a stormwater control ordinance as authorized by G.S. Chapter 143, Article 21, Part 1. The ordinance must at least meet all the minimum requirements of that part. Identical to SB 1587 (Sen. Albertson). Rep Gibson H ref to Envr.

HB 2162 Land Disturbing Activities Near Trout Waters
Provides that waters classified as trout waters are to have an undisturbed buffer zone 25 feet wide or of sufficient width to maintain the ecological functions provided by the buffer and confine visible siltation within the 25% nearest the land-disturbing activity, whichever is greater. Authorizes the Sedimentation Control Commission to approve plans including land-disturbing activity within the buffer zone along trout waters under certain circumstances. These include: (1) temporary and minimal impacts, (2) stream restoration activity, and (3) activity associated with a road that will be part of the state highway system, a waterline, wastewater or other utility infrastructure, a stormwater control structure, or a temporary erosion and sedimentation control device. Provisions do not apply to land-disturbing activity in connection with the construction of facilities to be located on, over, or under a lake or natural watercourse. Identical to SB 1600 (Sen. Weinstein). Rep Gibson H ref to Envr.

HB 2192 Amend Solid Waste Franchise Statutes
Amends sanitary landfill permitting statute to require a public hearing before a local government issues or renews a franchise or enters a host agreement or other contract for construction or operation of a sanitary landfill. Requires at least 30 days’ public notice of the hearing, and the notice must include the proposed location of the solid waste facilities governed by the proposed franchise or permit. At the time of the public notice, requires the franchise applicant to provide the local governing board and the public a copy of a conceptual facility plan for the landfill. Requires an awarded franchise to detail how the franchise will be consistent with the local solid waste management plan, including waste reduction, reuse, and recycling; the procedures for governmental oversight of fees and rates to be charged by the facility; and an exact description of the boundaries of the proposed landfill site and its size in acres. Clarifies that local governments may, but are not required to, award solid waste franchises. Identical to SB 1564 (Sen. Clodfelter). Rep Harrison H ref to Envr.

FINANCE & TAX

SB 1630 Raise Homestead Limits
Raises the income eligibility and exclusion amounts for the property tax homestead exclusion. Raises exclusion amount, until July 1, 2008, from the greater of $20,000 or 50% of the appraised value of the residence to the greater of $25,000 (designated as the "fixed exclusion amount") or 50% of the appraised value. After July 1, 2008, the fixed exclusion amount will be the fixed exclusion amount for the previous year, adjusted by the percentage of any cost-of-living adjustment made to Social Security. Also raises the income eligibility limit from $18,000 to $25,000 until July 1, 2008. Thereafter the income amount is also adjusted in the same manner. Rep Nesbitt S ref to Finance

SB 1891 Homestead Property Tax Deferral
Allows qualified owners to elect to defer payment of all or part of the property tax on their residence. A qualified owner is one who is 65 years of age or older or totally and permanently disabled, who has an annual income of $25,000 or less ($34,000 for married couples), is a NC resident, has occupied the property as a permanent residence for at least ten years. If the owner qualifies for both the current property tax exclusion under G.S. 105-277.1 and the deferral, the owner is eligible for either but not both. Provides that the taxes may be deferred until the death of the owner or until the property is transferred, at which time the full amount of deferred taxes and interest becomes due. Sen Hoyle S ref to Finance

INCORPORATIONS

SB 1852 Incorporate Midway
Incorporates the Town of Midway in Davidson County. Prohibits the town from extending its boundaries into Forsyth County by annexation or into Davidson County to the west of a designated line unless it is undertaken pursuant to an annexation agreement with the City of Winston-Salem. Sen Bingham S ref to Finance

LOCAL BILLS

HB 2524 Chocowinity ETJ
Provides for the expansion of the ETJ of the Town of Chocowinity over certain described territory. Rep Williams H ref to Loc. Gov. I

HB 2570 Greenville/Clear-Cutting Trees
Provides for the City of Greenville to limit, by ordinance, the clear-cutting of trees in buffer zones prior to development. Rep Warren H ref to Loc. Gov. I

HB 2658 Oak Island Sewer Treatment Fee
Authorizes the Town of Oak Island to create a fee-supported sewer treatment district. Rep Daughtridge H ref to Loc. Gov. I

HB 2659 Sale of Southport Marina to Southport
Directs for the North Carolina Port Authority to sell the South Port Marina to the City of SouthPort for $150,000. Rep Stiller H ref to Rules

HB 2684 New Hanover & Wilmington Occupancy Tax Changes
Creates the New Hanover County Convention Center District. Establishes the distribution of county occupancy tax proceeds derived within the district and modifies the distribution of the remaining occupancy tax proceeds. Creates the New Hanover County District U taxing district and authorizes the levy of up to a 3% occupancy tax. Makes administrative changes to the existing Wilmington Occupancy tax provisions. Rep McComas H ref to Finance

HB 2726 Local ETJs/Delay Monroe Vote
Allows the Towns of Marshville and Wingate to ETJ up to one mile from their limits without the approval of Union County. Modifies the provisions of SL 2005-261 regarding the proposed levy of a prepared food and beverages tax in the City of Monroe to delay the referendum authorized therein. Rep Gibson H ref to Loc. Gov. I

SB 1804 Tryon Occupancy Tax
Authorizes the Town of Tryon to levy a room occupancy tax of up to 3%. Sen Apodaca S ref to Finance

SB 1914 Ahoskie/Chowan Occupancy Tax
Authorizes the Town of Ahoskie to levy a room occupancy tax of up to 3%. Authorizes Chowan County to levy an additional room occupancy tax of up to 2%. Sen Holloman S ref to Finance

SB 1928 Clayton/Clear-Cutting Trees
Provides for the Town of Clayton to limit, by ordinance, the clear-cutting of trees in buffer zones prior to development. Sen Smith S ref to State & Loc. Gov.

TRANSPORTATION

HB 2601 Modify Subdivision Street Adoption by DOT
Provides that roads constructed in a subdivision prior to October 1, 1975 may be adopted by DOT if the road was built to the required specifications, and no additional funds are needed to repair or upgrade the road. Rep Goodwin H ref to Rules