GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1997

S	2 

SENATE BILL 684
House Committee Substitute Favorable 8/4/97

Short Title:  Durham/City Development Review Bd.	(Local)

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Sponsors:

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Referred to: 

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April 3, 1997

A BILL TO BE ENTITLED
AN ACT AMENDING THE DURHAM CITY CHARTER TO RENAME THE SUBDIVISION REVIEW BOARD AND INCREASING THE NUMBER OF PERSONS WHO MAY SERVE ON THAT BOARD, TO ALLOW DURHAM COUNTY TO ADOPT A FAIR HOUSING ORDINANCE, AND PROVIDING THAT THE INITIAL ELECTION OF THE ALAMANCE-BURLINGTON BOARD OF EDUCATION SHALL BE HELD IN 1997.
The General Assembly of North Carolina enacts:
Section 1.  Subsection (3) of Section 97 of the Charter of the City of Durham, being Chapter 671 of the 1975 Session Laws, reads as rewritten:
"(3)	The City Council may provide for the appointment of a board to be known as a Development Review Board consisting of four or more members who shall serve without pay as such members, each of whom shall be appointed by the Council for a term of years or for a term at the will of the Council, as may be determined by the Council; in the event the Council appoints such Board for a term of years, the term of the office of each member shall be three years.  The Development Review Board shall hear and decide appeals from and review any order, requirement, decision or determination made by any administrative official charged with the enforcement of any ordinance adopted pursuant to this section.  It shall also hear and decide all matters referred to in or upon which it is required to pass under any such ordinance.  The affirmative vote of a majority of members of the Board shall be necessary to reverse any order, requirement, decision or determination of any administrative official, or to decide in favor of the applicant any matter upon which it is required to pass under any such ordinance or to effect any variation in any of the provisions of such ordinance.  Every decision of such Board shall, however, be subject to review by proceedings in the nature of certiorari.  Such appeal may be taken by any person aggrieved or by an officer, department, board or bureau of the City.  Such appeal shall be taken within such time as shall be prescribed by the Development Review Board by general rule, by filing with the officer from whom the appeal is taken and with the Development Review Board a notice of appeal, specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.  An appeal from the administrative official to the Development Review Board stays all proceedings in furtherance of the action appealed from until the decision of the Development Review Board is rendered, at which time the stay of proceedings shall cease, unless the proceedings shall be further stayed by a restraining order granted by a court of record or by the Development Review Board.  The Development Review Board shall fix a reasonable time for the hearing of the appeal from the administrative official and shall give due notice thereof to the parties, and decide the same within a reasonable time.  Upon the hearing, any party may appear in person or by agent or by attorney.  The Development Review Board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, action or determination appealed from, and shall make such order, requirement, decision or determination as in its opinion ought to be made in the premises, and to that end shall have all of the powers of the officer from whom the appeal is taken.  Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of such ordinances, the Development Review Board shall have the power, in passing upon appeals, to vary or modify any of the regulations or provisions of such ordinances relating to subdivisions, plats, maps and all other requirements of the ordinance, in harmony with the general purpose and intent of this section, so that the spirit of the ordinance may be observed, public safety, convenience and welfare secured and substantial justice done."
Section 2.  Equal Housing.  A county board of commissioners may adopt ordinances prohibiting discrimination on the basis of race, color, sex, religion, national origin, age, familial status, or handicap in real estate transactions.  Such ordinances may regulate or prohibit any act, practice, activity, or procedure related, directly or indirectly, to the sale or rental of public or private housing, which affects or may tend to affect the availability or desirability of housing on an equal basis to all persons; may provide that violations constitute a misdemeanor and shall be punishable under G.S. 14-4; may subject the offender to civil penalties; and may provide that a county may enforce the ordinances by application to the General Court of Justice, Superior Court Division, for appropriate legal and equitable remedies, including, but not limited to, mandatory and prohibitory injunctions and orders of abatement, attorneys' fees, and  punitive damages, and the court shall have jurisdiction to grant such remedies.
Section 3.  Exemptions.  Any ordinance enacted pursuant to this act may provide for exemption from its coverage:
(1)	a.	Any single-family house sold or rented by an owner; provided, however, that such private individual owner does not own more than three such single-family houses at any one time; provided further, however, that in the case of the sale of any such single-family house by a private individual owner not residing in such house at the time of such sale or who was not the most recent resident of such house prior to such sale, the exemption granted by this subdivision shall apply only with respect to one such sale within any 24-month period; provided further, however, that such bona fide private individual owner does not own any interest in, nor is there owned or reserved on his or her behalf, under any express or voluntary agreement, title to or any right to all or a portion of the proceeds from the sale or rental of, more than three such single-family houses at any one time; provided further, however, that the sale or rental of any such single-family house shall be exempted from the application of an ordinance adopted pursuant to this act only if such house is sold or rented (i) without the use in any manner of the sales or rental facilities or the sales or rental services of any real estate broker, agent, or salesman, or of such facilities or services of any person in the business of selling or renting housing accommodations, or of any employee or agent of any such broker, agent, salesman, or person and (ii) without the publication, posting, or mailing, after notice, of any advertisement or written notice in violation of the provisions of the ordinance.
b.	Nothing in this subdivision shall prohibit the use of attorneys, escrow agents, abstractors, title companies, or other such professional assistance as necessary to perfect or transfer the title.
c.	For the purposes of this subdivision, a person shall be deemed to be in the business of selling or renting accommodations if:
1.	That person has, within the preceding 12 months, participated as principal in three or more transactions involving the sale or rental of any housing accommodations or interest therein, or
2.	That person has, within the preceding 12 months, participated as agent other than in the sale of his own personal residence in providing sales or rental facilities or sales or rental services in two or more transactions involving the sale or rental of any housing accommodation or interest therein, or
3.	That person is the owner of any housing accommodation designed or intended for occupancy by, or occupied by, five or more families.
(2)	Rooms or units in housing accommodations containing living quarters occupied or intended to be occupied by no more than three families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his residence.
(3)	With respect to discrimination based on sex, to the rental or leasing of housing accommodations in a single-sex dormitory property.
(4)	With respect to discrimination based upon religion, to housing accommodations owned and operated for other than a commercial purpose by a religious organization, association, or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society, the sale, rental, or occupancy of such housing accommodation being limited or preference being given to persons of the same religion.
(5)	With respect to discrimination based on age, to any bona fide senior citizen or retirement community, provided, however, that this exemption shall be subject to the following limitations:
a.	The covenants, conditions, and restrictions or other documents or written policy pertaining to such community shall not limit occupancy more proscriptively than to require that one person in each residence be a senior citizen and that each other resident, if any, except the spouse or cohabitant of, or a person who resides with and provides primary physical or economic support to the senior citizen, shall be at least 45 years of age;
b.	The covenants, conditions, and restrictions or other documents or written policy pertaining to such community shall permit temporary residency by a person less than 45 years of age for specified periods of not less than 60 days in any calendar year;
c.	Upon the death or dissolution of marriage, or upon hospitalization, or other prolonged absence of the qualifying resident, any other person who was a qualified permanent resident pursuant to the provisions of this subdivision shall be entitled to continue in residence;
d.	The senior citizen or retirement community shall have been developed for, and initially put to use as, housing for senior citizens, or shall have been substantially rehabilitated or renovated for, and immediately afterward put to use as, housing for senior citizens;
e.	Any person who has the right to reside in, occupy, or use the housing subject to this section prior to the date of its enactment shall not be deprived of the right to continue that residency, occupancy, or use as the result of the enactment of this section.
(6)	Any person subject to this act who adopts and carries out a plan to eliminate present effects of past discriminatory practices or to assure equal opportunity in real estate transactions if the plan is part of a conciliation agreement entered into by that person under the provisions of an ordinance adopted pursuant to this act.
Section 4.  Enforcement.  (a)	A county board of commissioners may create or designate a committee or committees to assume the duty and responsibility of enforcing ordinances adopted pursuant to this act.  Such committee(s) may be granted the necessary authority by the county for the proper enforcement of any fair housing ordinance, including, but not limited to, the power to:
(1)	Promulgate rules for the receipt, initiation, investigation, and conciliation of complaints of violations of the ordinance;
(2)	Require answers to interrogatories, the production of documents and things, and the entry upon land and premises in the possession of a party to a complaint alleging a violation of the ordinance; compel the attendance of witnesses at hearings; administer oaths; and examine witnesses under oath or affirmation;
(3)	Apply to the Superior Court Division of the General Court of Justice, upon the failure of any person to respond to or comply with a lawful interrogatory, request for production of documents and things, request to enter upon land and premises, or subpoena, for an order requiring such person to respond or comply;
(4)	Upon finding reasonable cause to believe that a violation of the ordinance has occurred, to petition the General Court of Justice, Superior Court Division, for appropriate civil relief on behalf of the aggrieved person or persons;
(5)	Sit as arbitrators in binding arbitration pursuant to the Uniform Arbitration Act, embodied in Article 45A of Chapter 1 of the General Statutes, provided that the time within which a party may apply to the General Court of Justice to vacate, modify, or correct an award may be limited to 60 days.
	(b)	Judicial Review of Committee Orders.  Judicial review of committee orders other than arbitration awards shall be in accordance with Article 4 of Chapter 150B of the General Statutes; provided, however, that the provisions of G.S. 150B-45 notwithstanding, petitions for judicial review shall be filed in the superior court of the county; provided, further, the provisions of G.S. 150B-51(b) notwithstanding, the trial court judge may grant to the petitioner, or to any other party, such temporary relief, restraining order, or other order as the court determines is just and proper, and the trial court judge may affirm, modify, or set aside, in whole or in part, the committee's order, or remand the order for further proceedings and enforce the order to the extent that the order is affirmed or modified. The term "Agency", whenever used in Article 4 of Chapter 150B of the General Statutes, shall mean the committee(s) as authorized or created by the board of commissioners of a county under the authority of this act.
	(c)	Enforcement of Committee Orders.
(1)	Decisions of a committee sitting as arbitrators shall be enforced as provided in Article 45A of Chapter 1 of the General Statutes.  Otherwise, if within 60 days after entry of an order of the committee, a respondent has neither complied with nor sought review of such order, any aggrieved person or the committee may apply to the superior court of the county for an order of the court enforcing the order of the committee.
(2)	Within 30 days after the court's receipt of the petition for enforcement of the agency's order or within such additional time as the court may allow, the committee shall transmit to the court the original or a certified copy of the entire record of the proceedings leading to the order.  With the permission of the court, the record may be shortened and testimony submitted by tape recording by stipulation of all parties.  Any party unreasonably refusing to stipulate to limit the record may be taxed by the court for such additional cost as may be occasioned by the refusal.  The court may require or permit subsequent corrections or additions to the record when deemed desirable.
(3)	The hearing on the petition for enforcement of the committee's order shall be conducted by the court without a jury.  The court shall hear oral arguments and receive written briefs, but shall take no evidence not offered at the committee's hearing; except that in cases of alleged irregularities in proceedings before the committee not shown in the record, testimony thereon may be taken by the court; and except that where no record was made of the proceedings or the record is inadequate, the judge in his discretion, may hear all or part of the matter de novo; provided that if the order imposed includes punitive damages, then as to that portion of the order, the respondent shall have a right to a trial de novo on that issue.
(4)	The court shall issue the order requiring compliance with the committee's order unless it finds that enforcement of the committee's order would prejudice substantial rights of the party against whom the order is sought to be enforced because the committee's findings, inferences, conclusions, or decisions are:
a.	In violation of constitutional provisions; or
		b.	In excess of the statutory authority of jurisdiction of the committee; or
		c.	Made upon unlawful procedure; or
d.	Affected by other error of law; or
e.	Unsupported by substantial evidence in view of the entire record as submitted; or
		f.	Arbitrary or capricious.
(5)	If the court declines to enforce the committee's order for one of the reasons specified in subdivision (4) of this section, it shall either:
		a.	Dismiss the petition; or
b.	Modify the committee's order and enforce it as modified; or
c.	Remand the case to the committee for further proceedings.
(6)	Any party to the hearing on the petition for enforcement of the committee's order may appeal the court's decision to the Appellate Division of the General Court of Justice under the rules of procedure applicable to other civil cases.
Section 5. Enforcement.  (a)	Civil Action for Unlawful Housing Practice.  An ordinance adopted pursuant to this act may permit any complainant to bring a civil action in the Superior Court Division of the General Court of Justice of the county against the person allegedly engaging in the unlawful practice.  Such civil action for a housing practice shall be brought no later than one year after an alleged discriminatory housing practice has occurred or terminated.
	(b)	Injunctions; Equitable Relief.  If the court finds that the respondent has engaged in or is engaging in an unlawful housing practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful housing practice, award special damages, actual damages, and punitive damages.
Section 6. Attorneys' Fees. An ordinance adopted pursuant to this act may provide for an award of attorneys' fees to the prevailing party in any action or proceedings under such ordinance other than the committee in the discretion of the committee or court.
Section 7.  Complaints and Other Records.  A county board of commissioners may provide that neither complaints filed with any committee pursuant to the ordinance nor the discovery, or attempts at conciliation, in whatever form prepared and preserved, shall be subject to inspection, examination, or copying under the provisions of what is now Chapter 132 of the General Statutes.
Section 8.  Committee Meetings.  The provisions relating to meetings of governmental bodies as set forth in Article 33C of Chapter 143 of the General Statutes shall apply to the activities of any committee authorized to enforce the ordinance; provided, however, that county may provide that said statutory provisions shall not apply to the activity of a committee to the extent that the committee is:
	(1)	Receiving a complaint; or
(2)	Conducting an investigation, discovery, or conciliation pertaining to a complaint filed pursuant to the ordinance.
Section 9.  Section IV of the Plan of Merger of the Alamance County Schools and the Burlington City Schools, dated June 16, 1994, and filed with the Secretary of State on March 20, 1996, under G.S. 115C-67 reads as rewritten:
"IV.  Establishment of the Permanent Board of Education.
The Alamance County and Burlington City Boards of Education shall continue until the effective date of merger, July 1, 1996, at which time those boards and their respective school districts will cease to exist, and the interim board will become the Alamance-Burlington Board of Education for the merged districts.  Members of the permanent board of education shall be elected for terms of four years on a nonpartisan basis.
The first election will take place on November 4, 1997.  The Alamance County Board of Elections shall establish a special filing period for the 1997 election.  In 1997 four members shall be elected for three-year terms.  Their successors shall be elected in 2000 and quadrennially thereafter for four-year terms. The election in 1998 shall take place on November 3, 1998.  In 1998 and quadrennially thereafter, three members shall be elected to four-year terms.  Vacancies on the permanent board shall be filled in accordance with G.S. 115C-37.
The terms of office of the three board members appointed by the Burlington City School Board and the one member appointed by the Alamance-Burlington Board of Education shall be extended until December 1, 1997, and the terms of the other three board members are extended until December 1, 1998.  
The Alamance-Burlington Board of Education shall have authority and powers as stipulated in Chapter 115C of the General Statutes of North Carolina."
Section 10.  Sections 2 through 8 of this act apply to Durham County only.
Section 11.  This act is effective when it becomes law.