Regulating Harmful Behavior

Photo by Randy Jay Harrington / Popular Government
Traffic laws help make streets safer by regulating how people drive. Cameras at stoplights are a relatively new approach to enforcing traffic laws.

One of the most powerful tools local governments have to improve their communities is the authority to regulate harmful behavior within their jurisdictions. North Carolina state law gives counties and municipalities authority to regulate various activities to protect people from harm. For example, local governments can pass "leash laws" requiring owners to control their dogs, reducing the danger of people being bitten. Local governments can adopt building restrictions to prevent people from constructing buildings in areas that are likely to be flooded. City governments set speed limits and other regulations for traffic on city streets.

Who decides what behavior is likely to be harmful enough to need regulation? How are those decisions made? What kinds of behavior do North Carolina cities and counties frequently regulate? How do they enforce those regulations? These are the questions this chapter answers.

REGULATING PERSONAL BEHAVIOR

Governments regulate personal behavior that threatens people's ability to live and work together in safety and security. Many of the laws against disruptive behavior are made by the state General Assembly. For example, state laws declare certain acts to be crimes. Crimes are offenses against all of the people of North Carolina, not just the victim who is harmed directly by the act. State laws also provide rules for the safe operation of cars and trucks on the state's highways. State laws apply to the entire state.

Local governments also have the responsibility to determine what kind of behavior they want to regulate within their jurisdictions. But there are limits to their authority to regulate. Local government regulations must not violate either the state or federal constitution, and local governments must have authority for their regulations from the state of North Carolina. Local governments in North Carolina have broad authority to regulate behavior that creates a public nuisance and threatens the public health, safety, or welfare. Other kinds of local regulation require special acts of authorization by the General Assembly.

Behavior that is acceptable in one community may be regulated as a nuisance in another community. For example, while some local governments have ordinances that require dog owners to keep their dogs penned or on a leash, not all do so. Some cities and towns have ordinances regulating the loudness and/or the time of noisy behavior in residential areas. Some local governments prohibit burning trash or leaves. Views about the seriousness of the harm caused by an activity often vary from place to place across North Carolina.

Photo by Marlene Tanner / The Express News

Burning of household trash, prohibited by both state law and local ordinance, led to this fire in a Wadesboro neighborhood.

Views about the harmfulness of an activity also change over time. For example, many cities and towns in North Carolina used to require stores to be closed all day on Sunday. Over the past 30 years, most of those ordinances have been repealed. In many parts of the state, more people wanted to shop on Sunday, and more merchants wanted to sell on Sunday. Fewer people believed it was wrong to conduct business on Sunday (or, even if they believed it was wrong, that the government should keep others from shopping on Sunday). Not everyone agreed, however. Often, as change occurs, some people continue to hold on to their old views of an activity, while others come to see its harmfulness quite differently. Controversy is likely to be great whenever people within a community have different views about how harmful an activity is. Thus, in a number of cities and towns there was considerable public debate over repeal of the ordinances requiring businesses to close on Sunday.

More recently there has sometimes been considerable controversy as communities have begun to regulate smoking in public places. In this case, the old view was that smoking was not a public problem. In fact, the use of tobacco was even seen by some North Carolinians as a sort of patriotic duty. Tobacco was North Carolina's chief crop. Much of the state's economy depended on raising tobacco, wholesaling it, and manufacturing cigarettes and other tobacco products. This traditional view began to be challenged as medical researchers linked tobacco smoke to cancer, heart disease, and breathing disorders. Evidence that nonsmokers' health can be injured by breathing secondhand smoke has increased the conviction among many people that smoking tobacco in public places should be prohibited. And as fewer and fewer people in the United States smoke, tobacco has also become a smaller part of the state's economy.

The case of Greensboro provides a good illustration of how people participate in a local government's decision to regulate behavior. In June 1988, Greensboro resident Lori Faley presented the Greensboro City Council a petition asking the council to regulate smoking in public places. Ms. Faley started the petition after someone blew smoke in her face while she stood in a supermarket checkout lane. The petition she brought to the city council had more than 500 signatures and called for an ordinance regulating smoking in stores and restaurants, as well as in publicly owned buildings. There was immediate opposition to the ordinance, especially from tobacco companies and workers in Greensboro. (More than 2,300 people were employed in the tobacco industry there.) Some merchants were also opposed, fearing smoking regulations would be bad for their businesses, too. The city council held a public hearing on the request and then appointed a committee to study the issue.

The committee was to be made up of representatives from the council, the county commission, the county health department, and business owners and managers, but it was slow to organize. It finally held its first meeting in July of 1989.

Ms. Faley and her group, which became known as GASP (Greensboro Against Smoking Pollution), were frustrated at the council's response and did not wait for the study committee to meet. GASP began to collect signatures on another petition. This petition took advantage of a provision in the Greensboro Charter for procedures called initiative and referendum. (Greensboro is one of only a few North Carolina cities with provisions for initiative and referendum.)

Initiative means that voters can require a vote on a proposed ordinance. Referendum means that the vote on the ordinance is by the voters themselves, rather than by their elected representatives on the council. The GASP petition called for the council to vote on the ordinance regulating smoking in public places. But it went further. It also called for a referendum on the ordinance if the council failed to adopt it. The initiative petition required the valid signatures of 7,247 Greensboro voters to force a referendum.

In August 1989, GASP submitted its petition. Although more than 10,000 people had signed the petition, only 7,306 signatures were certified as those of registered Greensboro voters. However, that was more than the number necessary to require a vote. The council refused to adopt the ordinance, and the referendum was placed on the ballot for the November election.

Greensboro tobacco companies spent tens of thousands of dollars urging voters to defeat the ordinance. They printed brochures opposing the ordinance and mailed them to voters. They used other advertising. One company had employees at each of the city's 45 voting places to encourage voters to reject the ordinance.

GASP did not have similar financial resources, but the group did have the names of those who had signed the petition. GASP members called those people to urge them to vote for the ordinance. The ordinance passed by a very narrow margin: 14,991 votes for the ordinance and 14,818 against it.

That election did not end the controversy, however. Tobacco workers in Greensboro began an initiative petition of their own. This time, the petition called for a referendum to repeal the smoking regulation ordinance that the voters adopted in 1989. The petitioners collected the required number of signatures, and another election was held in 1991. In this election, the result was the same. Voters rejected repealing the ordinance by more than two to one. Although thousands of people in Greensboro were still unhappy with the city's regulation of smoking in public places, Greensboro voters overwhelmingly supported keeping the ordinance.

REGULATING THE USE OF PROPERTY

Local governments regulate the use of property to protect the physical environment, to encourage economic development, or to protect people's health and safety. Several different kinds of property regulation are commonly used.

In many jurisdictions, a land-use plan serves as the basis for much of the regulation of property use. City or county planners (or outside consultants) study the physical characteristics of the land. (Where are the steep slopes? What areas are subject to flooding?) They map existing streets, rail lines, water lines, sewers, schools, parks, fire stations and other facilities that can support development. They also note current uses of the land. (Where are the factories, the warehouses, the stores and offices, the residential neighborhoods?)

On the basis of their studies, the planners prepare maps showing how various areas might be developed to make use of existing public facilities and to avoid mixing uses (keeping factories and junkyards separate from houses, for instance). The maps may also indicate where new water lines and sewers might be built most easily. These maps are then presented to the public for comment. After the public has reviewed the maps, the planners prepare a detailed set of maps showing current and possible future uses of the land. The local governing board may review and vote on this final set of maps itself or delegate planning authority to an appointed planning board. The approved maps become the official land-use plan.

All but the smallest North Carolina cities and towns have land-use plans. Municipal land-use plans typically cover an area one mile beyond the municipal boundaries. The area outside the city limits, but under the city's planning authority, is called the extraterritorial land-use planning jurisdiction. With the approval of the county commissioners, a city may extend its extraterritorial land-use planning jurisdiction even farther.

Counties have authority to regulate land use only over the parts of the county not subject to city planning. Because of cities' extraterritorial jurisdiction for land-use planning, the county land-use planning area is even smaller than the unincorporated area of the county. By 1997, a total of 63 North Carolina counties had adopted land-use plans. Another 20 counties had developed plans, but the plans had not been formally adopted by their governing boards.

Local officials can use land-use plans to guide their decisions about where to locate new public facilities. Some governments use them only for these non-regulatory purposes. A land-use plan also establishes a basis for regulation of property uses. However, the plan itself does not set up a system of regulation. Zoning and subdivision regulationare systems of regulation based on a land-use plan.

Map 6.1 Land use in Concord - Central city

Map 6.2 Zoning in Concord - Central city

Zoning

Zoning sets up restrictions on the use of land. The local governing board establishes categories of land use. Then the categories are applied to specific areas of the jurisdiction, creating zones for different kinds of development. The categories specify the kinds of activities the land can and cannot be used for and various requirements for developing and using the land. For example, one residential category might be for single-family houses. That category might prohibit any apartments or commercial or industrial activity in the zone. It might also require that each lot be a minimum size and that buildings be constructed a specified distance from the boundaries of the lot. Another zoning category might be commercial. It might prohibit industrial activity in the zone and require a certain number of parking spaces be built for every 1,000 feet of commercial floor space built.

To develop property that has been zoned, the builder must obtain a permit from the planning department. The planning department staff checks the building plans for the lot to see that all zoning requirements are met. The department then issues a building permit. As building proceeds, inspectors check to see that construction meets the requirements of the state building code. The building code sets standards for safe construction, including plumbing and electrical systems. Inspectors also check to make sure the zoning requirements are being followed. Before the new building can be occupied, inspectors must certify that it meets all state and local requirements, including the zoning regulations.

Zoning applies only to new uses of property. For example, an existing store in an area zoned residential would not be forced to close. However, expanding the store or changing its use to a factory might be prohibited by the zoning ordinance.

Minor exceptions to the zoning regulations can be made by the board of adjustment. This board is appointed by the council or commission. Boards of adjustment for cities with extraterritorial planning jurisdictions must include representatives from that area. The board of adjustment hears appeals about the decisions of the planning staff. It also hears requests for exceptions to the zoning regulations, called variances. Board of adjustment decisions usually cannot be appealed to the local governing board. Instead, appeals are made to the courts. This procedure is intended to keep political pressures from influencing land-use decisions.

Because major land-use decisions can affect property values, traffic levels, noise levels, and many other aspects of life in a community, they are frequently controversial. To ensure opportunities for public discussion, major developments such as shopping centers require "special-use permits" which can be granted only after a formal public hearing on the project.

All of North Carolina's larger cities and towns have zoning regulations that the city council has adopted by ordinance. A municipality's zoning authority covers the extraterritorial planning jurisdiction, as well as the area within the municipality. Almost two-thirds of the counties also have zoning for at least some of their area not under municipal jurisdiction. Most of the areas of North Carolina which are not covered by zoning regulation are primarily agricultural, although popular resistance to having local government regulate land use has also prevented the adoption of zoning in some counties where there is considerable industry.

In the News . . .
Photo by the Caldwell County Planning Department The Tri-County Motor Speedway will be used again for racing if the owner/operator and the Caldwell County commissioners can work out an agreement about track noise.
Speedway, county may strike a deal By Erica Beshears
Racing will likely return to Tri-County Motor Speedway this spring after it abruptly closed in midseason last year. The Caldwell County Commissioners must approve a race and practice schedule before activities can begin at the track. A vote is scheduled for March 18, County Manager Bobby White said. This year, the track will be operated by its owner -- Bob Brooks of the United Speed Alliance Racing, the sanctioning body for the Hooters ProCup series. "We're going to operate the racetrack ourselves," the new track manager Jimmy Wilson said. "All of this has come about just in recent weeks." The USAR will abide by an agreement with the county that limits the times for races and practices, requires mufflers for race cars and mandates sound-monitoring, Wilson said. Wilson said he hopes the agreement will improve the relationship between the track and area residents, who have complained about excessive noise, dirt and irresponsible management since the track opened in 1985. "We're going to do everything by the county's requirements," Wilson said. "The biggest thing is making the speedway to where it's a part of the community. There's been some tension (in the past.)"	Tri-County, a .4-mile oval in the Baton community, was built in a residential area before there was countywide zoning. Ever since, residents, county officials and the track have been at odds over track noise. The commissioners require the track to submit a race and practice schedule for them to approve each year. Through the years, the different sides have reached agreements on decibel levels and mufflers, only to see them slowly unravel when the track changed owners or managers. Last summer, the county put together a written record of all the agreements and requirements that had been discussed through the years. Soon after, the track abruptly closed. The people managing the track at that time cited the poor economy and unemployment as a reason for closing. But the county used that compilation of rules for the agreement it is now forging with the USAR, commissioner John Thuss said. "We have been through some less-than-wonderful relationships," Thuss said. "That makes it particularly difficult for (the new group) to pick up the pieces and move on . . . (But) I like their attitude." According to the proposed schedule given to commissioners for consideration, the USAR would host 12 Friday nights of racing this year, from April 5 to August 16. Practice would be limited to Thursday between 5 p.m. and 7 p.m.	On most race nights, practice and qualifying would begin at 5 p.m., and races would end by 11 p.m. For the three UARA shows, practice would begin at 4 p.m., and races would end by 11 p.m. If the races run behind schedule, they will end no later than 11:30 p.m., Wilson said. "You really should be done racing by 11:30 p.m.," he said. Each race car will have to have a muffler. And the track will check the decibel level of each car in an inspection before it can race, Thuss said. Each car's noise will have be below 95 decibels measured at 100 feet, he said. Thuss said he hoped the voluntary agreement keeps the track and local residents happy. If it doesn't work, the commissioners might investigate stricter special-use zoning options. "They have certain rights," Thuss said of the track management. He said he has urged them to speak with the Baton community-planning group, to help build a relationship between the track and the community. "These folks genuinely do seem to be trying to be respectable managers and owners. That's what I'm counting on more than anything." —Reprinted by permission of The Charlotte Observer March 10, 2002 © The Charlotte Observer

Subdivision Regulation

Subdivision regulation establishes a process for reviewing a landowner's request to divide a piece of land into building lots. With subdivision regulation, the local government will not approve dividing land into lots for houses until the landowner satisfies certain conditions. These conditions typically include building adequate streets and providing appropriate drainage. The conditions might also include laying water and sewer lines, if the new development is to be served by public water supply and sewers. In addition, each lot must be checked to see that it includes a safe building site. The landowner may also be asked to donate land for a park or greenspace. If land is subject to subdivision regulation by local government, the register of deeds cannot record the boundaries of the new lots without approval of the local government. This assures that all regulations are followed.

Subdivision regulation is intended to prevent developments on land that cannot support them (because it floods, for example, or because the soil does not allow septic tanks and no sewers were provided). Subdivision regulation is intended to assure that adequate streets and drainage are provided by the developer, so that residents (or the local government) are not left with the expense of building adequate roads or drains. Because many of these problems developed in earlier subdivisions, subdivision regulation is being used more and more.

Editorial cartoon by John Cole / The Herald-Sun, Durham, NC

Zoning can be controversial because not everyone agrees on how land should be used.

Minimum Housing Codes

Minimum housing codes establish basic requirements for a place to be "fit for human habitation"—that is, acceptable as someone's living place. Typical requirements include structural soundness (to prevent the collapse of walls or floors), adequate ventilation (to provide the occupants with fresh air), and a safe water supply and toilet facilities (to prevent the spread of disease). If an inspector finds that a building does not meet minimum standards, the inspector can order it to be repaired or closed. A local governing board can adopt an ordinance ordering that a building which is beyond repair be demolished. Most of North Carolina's larger cities and counties have minimum housing codes.

Other Regulations

	Photo by the City of Durham Public Works Department
	Computers help officials control traffic lights in Durham to move traffic smoothly through the city.

Other regulations also help protect the physical environment. Local governing boards may regulate community appearance. For example, they can prohibit signs they decide are too large or disturbing. They can regulate changes to the outside appearance of buildings in historic districts. Local governing boards can also protect fragile environments. For example, they may regulate activities that cause soil erosion or regulate building in flood plains or in reservoir watersheds. Like most land-use regulations, ordinances regulating community appearance and environmental protection are usually enforced by building inspectors or by the planning staff.

Local governments also regulate the ways people use public property. They frequently adopt ordinances setting up rules for the use of parks or other facilities open to the public. Cities and towns regulate traffic on their streets. For major thoroughfares (streets that carry traffic into and out of the city) the city or town shares this authority with the state. The city council itself can decide to put up stop signs or traffic signals or to set speed limits on most city streets, but not on some of the busiest. The city council must request state action to regulate traffic on thoroughfares. Because all rural public roads are the state's responsibility, county governments must ask for state action to control traffic in unincorporated areas. Local and state officials must both approve a thoroughfare plan for all major streets and highways.

New Issues in Regulation: Hog Farming

Local government regulation can be very controversial. During the 1990s, for example, North Carolina became one of the United States' leading producers of pork through the expansion of systems in which many farmers each raise thousands of pigs on contract with the packing companies that prepare the meat for market. To raise such large numbers of hogs, farmers keep them in barns, rather than letting them run outside. Some people wanted to regulate these large-scale hog farms because of problems created by the wastes the hogs produce. Because a great many hogs are confined in a small space, they produce large quantities of manure. The wastes are regularly washed out of the barns and pumped into open lagoons, where some of the liquids can evaporate. Hog waste is also a valuable fertilizer, so the material from the lagoons is often sprayed onto fields where crops are grown. People who live near the hog farms object to the smell from the hog waste, which can be quite intense. Some also complain that their wells are polluted by hog wastes. Streams and rivers have also been polluted when lagoons leak or overflow following storms. These high concentrations of hog waste have killed fish and polluted drinking water downstream.

Photo by Robert Willett / The News & Observer
This aerial view shows a typical hog farm in North Carolina with multiple barns, waste lagoons, and spray fields.

Several counties have tried to impose stricter requirements on hog farms than those set by the state. For example, in 1997 the Chatham County Board of Commissioners passed an ordinance requiring farmers to pay a deposit into a fund the county created to pay for cleaning up spills from hog lagoons. They also required more space between hog barns and other buildings where people live or work. Hog farmers challenged the Chatham County regulations in court. The North Carolina Court of Appeals ruled that the county had no right to pass rules that are stricter than those set by the state.

In 2001, the Chatham County Board of Commissioners appealed the decision, asking the state Supreme Court to review the ruling of the Court of Appeals. Residents of Chatham County and even the commissioners themselves are divided on the issue. Some see the hog farms as an important part of the county's economy. Others think the smell from the farms is a serious public nuisance and the threat of leaks from the lagoons is a major environmental hazard. You can explore this controversy further at checc.sph.unc.edu/rooms/library/hogs/index.htm, a web site maintained by the School of Public Health of the University of North Carolina at Chapel Hill.

USING THE AUTHORITY TO REGULATE

To regulate an activity, the local governing board must first have appropriate authority from the state. Local governments have been given authority to regulate many kinds of behavior. If state law does not already permit local government regulation of an activity, local officials must ask the General Assembly to pass a bill granting that authority. Next, the local governing board must adopt an ordinance. The ordinance is a legal description by the board of the behavior that is being regulated and the actions the government will take against people who do not follow the regulation.

Frequently people disagree about whether a particular activity is harmful enough to require regulation. Local governing boards often hold public hearings to encourage full discussion of the arguments for and against a proposal to regulate. Sometimes an advisory board or a committee of residents also reviews the arguments about a proposed regulation and presents these to the governing board. People also often speak directly to board members about proposed regulations they particularly favor or oppose. However, the decision to regulate must be made by the local governing board. Unless a majority of the board thinks regulation is appropriate, no action will be taken. Except for a few cities (like Greensboro) that have initiative and referendum, an ordinance can be adopted only by the board.

	Photo by the Henderson County Inspections Department
	One way local government regulation helps make the community safer is by requiring construction to be in compliance with building codes.

Governments regulate either by requiring certain actions or by prohibiting certain actions. If someone fails to act according to the requirements of the ordinance, the government can either refuse them certain public services or impose penalties on them. The ordinance specifies what service may be withheld or what penalties may be imposed. Some regulations are enforced by withholding public services until the person acts as the regulation requires. For example, a person who wants to connect his or her home to the public water supply must get permission from the water department. To protect the water supply, local regulations specify the kind of plumbing the owner must install. Then, before the water department turns on the water, an inspector checks the plumbing to be sure it meets specifications.

Frequently, people who violate an ordinance must pay a civil penalty of a specified amount of money. When an official enforcing the ordinance determines that a violation has occurred, the official issues a citation to the violator, assessing the civil penalty. Sometimes there are other penalties, too. For example, the ordinance regulating parking may include a provision for towing cars parked in parking places reserved for the handicapped. Violations of some ordinances may also carry a fine or time in the county jail. People charged with violating these ordinances have a hearing at which a magistrate or district court judge determines whether they are guilty of the violation and, if so, what their sentence will be.

Police officers are given responsibility for enforcing many local ordinances, but other local officials are also responsible for enforcing specific ordinances. These include fire inspectors, housing inspectors, and zoning inspectors. Often these same local officials are also responsible for enforcing state laws and regulations. Local police enforce North Carolina's criminal laws, as well as local ordinances. Local fire inspectors enforce the state fire-prevention code in addition to any local fire-prevention code. Local ordinances must not conflict with state laws and regulations.

Many regulations require popular support to achieve their purposes. For example, most people must cooperate with restrictions on smoking in public places or requirements to keep dogs under control in order for these ordinances to be effective. Police enforcement can help make people aware of the law, but the police cannot be everywhere at once and cannot deal with widespread violations of such ordinances. They have too many other things to do. Fortunately, most people accept their responsibility to obey laws, even when they disagree with the laws. This is the basis for the success of most government regulations.

DISCUSSION QUESTIONS

1. Are there any controversies over regulation of personal behavior or land use in your city or county?

• If so, find out as much as you can about the arguments for and against the regulation. Which arguments are most convincing to you? Why?

2. Who will decide whether or not to adopt and enforce this controversial regulation?

• What do you expect them to decide to do? Why?

3. Schools have their own rules to regulate disruptive behavior. What are some of these rules at your school?

• What sorts of harm does each protect against?
  

Local Government in North Carolina, Second Edition - Chapter 6, Regulating Harmful Behavior.
Copyright © 2003 by Gordon P. Whitaker and the North Carolina City and County Management Association.