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Nov-05-96 03: 14P Coleman Gledhill Hargrave 919 732 7997 <br /> Memo to Moses Carey, Jr. <br /> Page 2 <br /> November 5, 1996 <br /> legislative discretion by the use of joint planning agreements. <br /> Chapter 233 of the 1987 Session Laws of the North Carolina <br /> General assembly gave that authority. However, that authority <br /> must be exercised according to the procedures for adopting <br /> planning legislation generally. <br /> 3. The concept of "public health emergency, " used in the <br /> draft agreement, needs standards and needs clarification as to <br /> who makes the determination as to whether a public health <br /> emergency exists. it is our view that these are primarily health <br /> issues and that the Orange County Health Director should be <br /> involved in their determination. <br /> 4. The draft agreement speaks almost entirely of sewer <br /> matters. There is little or no reference to public water issues <br /> or responsibilities. To the extent that the agreement is <br /> intended to cover public water matters, it might be useful to <br /> include the City of Durham and the Orange Alamance Water System, <br /> a non-profit corporation operating in the central western portion <br /> of Orange County. Further, if public water issues are to be <br /> covered by this Agreement, various existing agreements and <br /> ordinances related to supply, use and conservation of the public <br /> water supply must be taken into consideration. <br /> 5. The draft agreement speaks in terms of "first refusal" <br /> opportunities and responsibilities with respect to sewer lines <br /> extended to serve essential public facilities and to address <br /> public health emergencies. We think this/these concepts should <br /> be clarified. That is, is the "first refusal" to serve an <br /> opportunity or a responsibility? <br /> 6. We have a concern with that portion of the draft <br /> agreement that relates to "equity issues. " As a general <br /> proposition, water and sewer systems are set up and are operated <br /> as "enterprises. " That is, they are typically designed to be <br /> self--sufficient. However, any attempt to enforce that notion <br /> with respect to a local government with taxing power is <br /> problematic. The taxing power and the use of taxes, like land <br /> use planning, involve the exercise of governmental discretion. <br /> They are uniquely political. we see no way to limit the ability <br /> of any governmental member of this agreement to use its tax <br /> proceeds for any public purpose.. This is the teaching of Plant <br /> Food Contpmny v. City of Charlotte, 214 N.C. 518 (1938) _ The <br /> Plant Food case is the most frequently cited case in North <br />