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HomeMy WebLinkAboutLetter from Geoff Gledhill 11-06-20086 ~~ LAW OFFICES COLEMAN, GLEDHILL, HARGRAVE & PEEK A PROFESSIONAL CORPORATION 1 Z9 E. TRYON STREET P. O. DRAWER 1529 HILLSBOROUGH, NORTH CAROLINA Z7Z76 919.732.2196 FAX 919.732.7997 www.cghp-law.com Barry Jacobs, Chair Moses Carey, Jr. Valerie P. Foushee Alice M. Gordon Mike Nelson November 6, 2008 Orange County Board of Commissioners Post Office Box 8181 Hillsborough, North Carolina 27278 FROM THE DESK OF GEOFFREY E. GLEDHILL E-MAIL: ggledhill@cghp-law.com ltE: Senate Bill 1925; UNC Board of Governors Authority to create an Airport Authority Dear Board Members: During its last session the North Carolina General Assembly ratified S 1925. Senate Bill 1925, in pertinent part, amended N.C. Gen. Stat. § 116-11 (powers and duties ,generally of the UNC Board of Governors) to authorize the UNC Board of Governors to create an airport authority. to support the missions of the University of North Cazolii~a at Chapel Hill and/or the University of North Cazolina Health Care System. Senate Bill 1925 also created new Article 33 of Chapter 116 of the General Statutes detailing the powers of an airport authority created by the UNC Board of Governors. The Governor signed S 1925 into law on August 8, 2008. Copies of pertinent provisions of S 1925 are enclosed. Senate Bill 1925 makes an airport authority created pursuant to it a political subdivision of the State of North Carolina with the county in which the airport is established its "territorial jurisdiction." As originally drafted, S 1925 would have authorized an airport established pursuant to it to be located in any one or more than one of the counties of North Carolina. As amended, late in the legislative session, the airport authority created by the UNC Board of Governors may only be established in Orange County and the sole purpose of the authority is "to re-site Horace Williams Airport and operate the re-sited airport." In a letter dated August 12, 2008 from UNC Chancellor H. Holden Thorp to Commissioner Jacobs, Orange County was informed the University was proceeding with a plan for an airport "in support of the missions of Carolina and the UNC Health Caze System." In a follow-up letter dated October 5, 2008 from Chancellor Thorp to Commissioner Jacobs, Chancellor Thorp asks the Board of Commissioners to "identify [its airport authority] representatives." Copies of both letters are enclosed. Orange County Board of Commissioners Page 2 November 6, 2008 I take Chancellor Thorp's August 12, 20081etter to mean the UNC Board of Governors will elect to create an airport authority to "support the mission of [the University of North Carolina at Chapel Hill] and the University of North Carolina Health Care System." N.C. Gen. Stat. § 116-272(a). This means that the airport authority will consist of 15 members appointed as follows: one member appointed by the General Assembly fora 3-year term upon the recommendation of the Speaker of the House of Representatives in accordance with G.S. 120-121 (the appointment will be made by enactment of a bill or an amendment to a bill); 2. one member appointed by the General Assembly fora 3-year term upon the recommendation of the President Pro-tempore of the Senate in accordance with G.S. 120-121; 3. eight members appointed to 3-year terms by the Board of Governors upon recommendation of the Board of Trustees of the University of North Carolina at Chapel Hill, provided that four of the initial members so appointed will serve terms of three years and four will serve terms of two years; of the eight members appointed by the Board of Governors, an equal number are to be representatives of the University of North Carolina at Chapel Hill and the University of North Carolina Health Care System unless it is "impossible" to appoint an equal number from each, in which case the Board of Governors will determine a "fair representation on the airport authority from each [of the two entities]"; 4. three members appointed by the Board of County Commissioners of Orange County, one of the initial members to be appointed fora 1-year term, one fora 2- year term and one fora 3-year term with successors being appointed for 3-year terms; and 5. two members appointed by the municipalities within Orange County, Chapel Hill appointing one member fora 2-year term and Carrboro and Hillsborough alternately appointing one member fora 2-year term with Carrboro making the first such appointment. All vacancies on the authority will be filled by the governing board authorized to make the initial appointment and the vacancy appointment is for the remainder of the unexpired term. There are special rules pertaining to legislative appointment vacancies which I am omitting from this letter. Orange County Board of Commissioners Page 3 November 6, 2008 It is clear the local government appointments to the airport authority are direct appointments acid not subject to review, approval or otherwise of any other political body, including the UNC Board of Governors. An authority created pursuant to S 1925 "has all powers that a city or county has under Articles 1 through 7 of Chapter 63 of the General Statutes...." N.C. Gen. Stat. § 116-274(a). Copies of the pertinent provisions of Chapter 63 of the General Statutes are enclosed. It also has the specific powers enumerated in N.C. Gen. Stat. § 116-274(b), a copy of which is enclosed. Importantly, and as the result of negotiations with UNC officials during the legislative process, S 1925 contains the following: Notwithstanding other provisions of law; both regulations adopted by an authority under this Article and development regulations adopted by a county or municipality under Article 18 of Chapter 153A or Article 19 of Chapter 160A of the General Statutes shall be applicable to land owned by and the approaches to land owned by an authority created under this Article. In the event the regulations conflict,.the more restrictive regulation applies. N.C. Gen. Stat. § 116-274(a). Enclosed is email correspondence between Mr. Tony Blake, Speaker Joe Hackney and an attorney on Speaker Hackney's staff related to a preemption question raised by Mr. Blake. Cities and counties are authorized to acquire property, including by condemnation, for and to operate airports. The enumerated powers granted to an airport authority created by the UNC Board of Governors under S 1925 are essentially the same as the enumerated powers conferred upon counties by Article 15 of Chapter 153A and Article 6 of Chapter 63 of the General Statutes and conferred upon cities by Article 16 of Chapter 160A and Article 6 of Chapter 63 of the General Statutes. Neither a UNC Board of Governors created airport authority nor a city or county can condemn land owned by the State of North Carolina or owned by a State owned railroad, without the consent of the Council of State. The condemnation power of a UNC Board of Governors created airport authority or a city or county for acquiring property for an airport,.is not, in my opinion, "quick take" authority. This lack of "quick take" authority is not a limitation on the power to condemn but rather affects the time when title to the land will vest in the body condemning, either an authority or a city or a county. There is a notable difference between the condemnation power of an airport authority created under S 1925 and the condemnation power of a city or county. Such an authority may not condemn "property held on July 1, 2008 by a tax exempt Internal Revenue Code Section 501(c)(3) organization organized for educational purposes." No such limitation exists with respect to cities or counties exercising the power of eminent domain for an airport. Orange County Board of Commissioners Page 4 November 6, 2008 The other important difference between a UNC Board of Governors created airport. authority and a city or county with respect to acquiring, owning or operating an airport is the special land use regulation provision discussed above and in the enclosed email correspondence The Board of County Commissioners appointment power to a UNC Board of Governors created airport authority is important. The relationship between the County and a UNC Board of Governors created airport authority will also be important. Equally important are the rules and regulations that will pertain to an airport and the land use regulations that will pertain to an :airport in Orange County. Since a new airport will likely be located in Orange County's planning jurisdiction,i I think there is a need for the County to begin, as soon as practical, a review of its zoning regulations to insure they contain "best practices" that are consistent with "current federal legislation governing aeronautics and the regulations duly promulgated thereunder and rules and standards issued from time to time pursuant thereto." N.C. Gen. Stat. § 63-53(1). It is equally important that County land use regulations pertaining to an airport otherwise insure the health, safety and welfare of the citizens of Orange County. Very t1-uly yours, COLEMAN, GLEDHILL, HARGRAVE & PEEK, P.C. GEG/lsg Enclosures xc: Laura Blackmon F:~I.isaUetters~Bd of Comm Itr re SB 1925 airport authority.doc t For purposes of this letter, the County's planning jurisdiction does not include land within municipal boundaries, within "etj" boundazies or within "transition area" boundaries of the Joint Planning Area.