tag: North Carolina Land Use Litigator: Land Use By Another Name?: Local Governments Seek to Tax Softdrinks By Ballot Measure

Wednesday, October 8, 2014, 1:44 PM

Land Use By Another Name?: Local Governments Seek to Tax Softdrinks By Ballot Measure

Our regular readers will know that this blog is as much about land use, specifically, as it is about local government powers, generally, and the direct and indirect impacts on land use.

Voters in two California cities -- San Francisco and Berkeley -- will go to the polls next month to consider a city tax on soft drinks.  Specifically, San Francisco voters will consider a "more aggressive" $.02 tax per ounce, with the tax proceeds going to the City and channeling into health and wellness programs.  Berkeley voters will consider a "taker" $.01 tax per ounce, with the taxes going into the City's general fund.  Such voter measures have not had much success in the U.S., with a measure recent failing in Telluride, Colorado, for example.   We don't know of successful or unsuccessful legal challenges.

These taxes are interesting to us insofar as it represents another means by which a local government could endeavor to control land uses, though with a different power.  For example, we've seen in the past the efforts by local governments in North Carolina to control the existence or location of the promotional sweepstakes industry within municipal borders through the use of the privilege license tax powers.  Could this paradigm we're seeing in California replace the since-repealed privilege license taxing power?

We have not reviewed whether such ballot measures would be legal in North Carolina, but it is worth noting that one of the players in the polling used to support California tax measure is our own flagship University in Chapel Hill, as reported by The New York Times.


"If we tax this an additional $.02, that would double its cost of production."

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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