tag: North Carolina Land Use Litigator: Asheville City Hall's Celebratory "Rainbow Flag" Challenged on Basis of Local Government Powers

Friday, October 10, 2014, 2:45 PM

Asheville City Hall's Celebratory "Rainbow Flag" Challenged on Basis of Local Government Powers

All are presumed to know about the recent activity around the legal issue -- not the human issue, the legal issue -- of same-sex marriage.

In Asheville, in response to the coming legal change, the City Council earlier this week placed a rainbow flag on City Hall.  You can read about the decision here.  The image below is of that flag.

Well, today, Carl Mumpower, a former member of the Asheville City Council, and Chad Nesbitt, the former chair of the Buncombe County (in which Asheville sits) G.O.P. party, jointly and publicly expressed disagreement with the City's decision to fly the rainbow.

You can read about the criticism here.

The reason we find this interesting is not at all because of political predilections, and even less so because of the moral, religious and philosophical disagreements that come to bear on the topic of same-sex marriage. Rather, we find this interesting because Messrs. Mumpower and Nesbitt challenge the act of flying the rainbow flag on the basis of local government powers.  Specifically, they take aim at (1) the City Council's decision to instruct the City Manager to fly the flag, which they allege violates the City Charter provisions separating the legislative powers held by the Council from the operational powers held by the City Manager; and (2) the City Council cannot, either arbitrarily or on an emotional whim, instruct the City Manager on operational issues unless the Council goes through the proper legislative process, including advertisement and public hearing.

Local government powers are constantly at the fore.

  "A little to the left.  A little more to the left.  A little bit more to the left.  There!  Perfect."

Mike Thelen practices in Womble, Carlyle's Real Estate Litigation and Land Use practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development matters in both state and federal venues throughout North Carolina.

Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw and "like" us on Facebook here.

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