In my last post I commented that House Bills 652 and 687 assume all powers exercised by local governments are clear and precise, noting the mischief created because “implied powers” are neither clear nor precise. One reader has asked me to define “implied powers.”  Let’s return to Civics 101.

            Power flows in two directions, and the genius of our political systems is that, over time, they (generally) maintain equilibrium.

             Citizens elect legislators and approve a constitution.  Legislators, in turn, approve municipal corporate charters and establish powers to be exercised by cities and counties consistent with the citizen-approved constitution.

             It is impossible, however, to specifically describe and authorize every action necessary for a local government to do what it was established to do.  Cities, on the other hand, need to know what powers are at their disposal to do the citizens’ business.

            “Corporate powers” are those powers granted to municipal corporations (cities and towns) through N.C. Gen. Stat. § 160A-4, which vests cities with “all of the property and rights in property belonging to the corporation . . . [to] sue and be sued; [to] contract and be contracted with; [to] acquire and hold any property . . .  and [to] have and exercise in conformity with the city charter and the general laws of this State all municipal powers, functions, rights, privileges, and immunities of every name and nature whatsoever.”

            “Police powers” generally are powers of the sovereign government (e.g. federal or state) to promote the general welfare and protect the health and safety of their inhabitants.  Police powers can be delegated to local governments.  Zoning land, for example, is an exercise of the police power delegated to local governments.*

             “Implied powers” are typically described in numerous cases as “such powers as are necessarily or reasonably implied from those expressly granted or such as are essential to the exercise of those which are expressly conferred.” 

            So . . . the point remains. Interpreting ordinances and laws and determining which ones are “beyond authority” is difficult at best.  Villainizing local government employees and elected officials for doing their best to get it right only punishes governments for doing in good faith what we have established them to do.  Under House Bills 652 and 687 human error is not acceptable.

            *Side Bar: My first zoning case, loosely speaking, pertained to the zoning designation of property in a client’s estate when I was a summer associate at the Manhattan law firm of Davidson, Dawson & Clark in 1984.  I will never forget attorney Bill Buice (fellow southerner and a Duke Law School grad) asking me if I knew anything about zoning.  I replied with some degree of self-satisfaction, “I know that it’s an exercise of the police power of the state,” to which he accurately replied, “That, along with fifty cents, is worth a small cup of coffee.” Several hundreds of zoning cases later, Mr. Buice’s wisdom remains unchallenged.

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Tom Terrell

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes…

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes parts of Virginia and South Carolina. His many clients are involved in commercial and residential real estate, solid waste hauling and disposal, telecommunications, quarries/asphalt and miscellaneous litigation related to permit denials, vested rights and rezonings.

He has published numerous articles and speaks regularly to legal, governmental and business groups on a variety of issues related to land use and zoning.

Mr. Terrell has served as a leader in numerous civic and legal endeavors, including Chairman of the Board of Trustees of the N.C. State Health Plan, Chairman of the Board of Trustees of Winston-Salem State University, and service on the Board of Directors of the UNC-CH General Alumni Association, Board of Directors of the High Point Chamber of Commerce, Board of Visitors of Guilford College and Board of Center Associates of the Center for Creative Leadership, and as a founding member of the N.C. Bar Association Zoning, Planning and Land Use Section.

More information can be found at https://www.foxrothschild.com/thomas-e-terrell-jr/.

Mr. Terrell can be contacted at mailto:tterrell@foxrothschild.com.