Does NC's Soil Conservation Districts Law require that appointed members of a Soil and Water Conservation District Board of Supervisors live within the district they are appointed to represent?

Plain-English summary

Two supervisors of the Richmond Soil and Water Conservation District (along with Steve Bennett) asked the AG whether G.S. § 139-7 required appointed supervisors of a district board to actually live in the district they were appointed to represent. The Division of Soil and Water Conservation at DEHNR forwarded the request through Charles Bullock.

Senior Deputy Attorney General Daniel C. Oakley and Associate Attorney General James P. Longest, Jr. walked through the question. They started by noting that the statute had been amended since the AG last addressed the question in 1978. In 1979, the General Assembly enacted House Bill 1102 ("An Act Relating to Membership on Soil and Water Conservation District Boards," 1979 N.C. Sess. Laws, c. 519, s. 2), which clarified that appointive members had to be "from the district" they would represent. That amendment superseded a January 1979 internal memorandum (Dan Oakley to Grady Lane) that had reached a different conclusion.

The key question was what "from the district" means. The phrase is less precise than "resident of," but the AG concluded it expressed the same legislative intent. "From" is a preposition expressing a relationship to a place of origin, and "district" has a precise legal meaning under the Soil Conservation Districts Law. The AG considered three possible readings:

1. "From" means born in the district. The AG said this reading would likely be constitutionally invalid because it would restrict travel and deny equal protection to non-native residents.

2. "From" means owns property in the district. Constitutionally invalid. The NC Constitution prohibits property ownership as a qualification for office.

3. "From" means resident or domiciled in the district. Constitutional and consistent with the statute. This was the AG's reading.

The AG also drew on the constitutional baseline for elected supervisors. NC Constitution Article VI, Section 8 requires that elected supervisors be eligible to vote for the office they seek; Article VI, Section 2 requires NC residency of at least one year and residency in the particular district of at least 30 days before the election to vote there. The General Assembly is presumed to know those constitutional baselines. By using the same preposition "from" to describe both elected supervisors (who must be residents by Constitution) and appointed supervisors, the General Assembly signaled the same residency intent for both.

The opinion's bottom-line application: the non-resident supervisor in question was not eligible to serve as a supervisor under the Soil Conservation Districts Law. Both the District Board and the Soil and Water Conservation Commission acted outside their powers in appointing him.

Currency note

This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

For a current appointment, check the present text of G.S. § 139-7 and applicable constitutional provisions. This opinion addresses the statute as it stood in 1994.

Common questions

Q: Does the residency requirement apply to appointed supervisors?
A: Yes. The AG read "from the district" in G.S. § 139-7 to require an appointed supervisor to reside or be domiciled within the district.

Q: Why did the supervisors ask?
A: Two Richmond district supervisors and Steve Bennett requested an opinion. The AG says the supervisor at issue neither resided in the district nor was eligible to vote there.

Q: Why was the 1979 amendment important?
A: A January 1979 internal AG memorandum (Oakley to Lane) had advised on this question before the amendment. The 1979 amendment changed the statutory text, so the earlier memorandum no longer controlled. The 1994 opinion explicitly said the earlier memorandum was superseded.

Q: Why did the AG bother with the property-ownership reading?
A: Because someone might read "from the district" to mean "with ties to land in the district." The AG ruled that out on NC constitutional grounds: the NC Constitution prohibits property ownership as a qualification for public office. So that reading would render the statute unconstitutional, which is itself a reason to reject the reading under the constitutional-avoidance canon.

Q: What about elected supervisors?
A: The Constitution does the work for them. Article VI, Section 8 requires that elected supervisors be eligible to vote for the office, and Article VI, Section 2 requires NC residency of at least one year plus 30 days in the district before the election. So elected supervisors are statutorily and constitutionally residents. The 1994 opinion used the parallel statutory text ("from the county or counties in the district" for elected, "from the district" for appointed) to argue the General Assembly intended the same residency rule for both.

Q: What is the consequence of an invalid appointment?
A: The AG concluded that the nonresident in the facts presented was ineligible to serve. An appointment of a nonresident on the district board's recommendation was outside the powers of both the board and the Soil and Water Conservation Commission. The opinion does not prescribe a removal, replacement, or election procedure.

Background and statutory framework

The opinion reads the Soil Conservation Districts Law to require appointed supervisors to be residents of the districts they represent. G.S. § 139-7 governs the composition of district boards of supervisors. Each district has supervisors, some elected from within the district and some appointed (typically by the State Soil and Water Conservation Commission on the recommendation of the district board).

In 1979, the General Assembly enacted House Bill 1102, "An Act Relating to Membership on Soil and Water Conservation District Boards" (1979 N.C. Sess. Laws, c. 519, s. 2). The amendment added clarifying language about residency: appointed members must be "from the district" they are appointed to represent. The text was less precise than "resident of," but the AG read it as expressing the same intent.

The constitutional backdrop is NC Constitution Article VI, which sets eligibility for office. Section 8 requires that the candidate for elected office be eligible to vote for the office sought. Section 2 sets the voter-eligibility residency rules (one year in NC, 30 days in the particular district). The AG's parallel-construction argument leveraged Article VI to anchor the residency reading for the statutory text. If elected supervisors must be residents (Constitution) and the statute uses the same preposition "from" for appointed supervisors, the appointed supervisors must be residents too.

The constitutional-avoidance reasoning (rejecting the native-born and property-ownership readings because they would make the statute unconstitutional) is a standard NC interpretive canon. When two readings of a statute are available, the court picks the one that does not raise constitutional problems.

Citations

• N.C.G.S. § 139-7 (membership of Soil and Water Conservation District Boards)
• 1979 N.C. Sess. Laws, c. 519, s. 2 (House Bill 1102; amendment clarifying "from the district" requirement)
• N.C. Const. art. VI, § 2 (voter residency requirements)
• N.C. Const. art. VI, § 8 (eligibility for elected office tied to voter eligibility)

Source

• Landing page: https://ncdoj.gov/opinions/residency-requirements-for-appointed-supervisors/

Original opinion text

August 1, 1994

Charles Bullock Division of Soil and Water Conservation

N.C. Department of Environment, Health and Natural Resources

P.O. Box 27687 Raleigh, N.C. 27611-7687

RE: Advisory Opinion: Richmond Soil and Water Conservation District request for advisory opinion regarding residency requirements for appointed supervisors; G.S. § 139-7.

Dear Mr. Bullock,

Two supervisors of the Richmond Soil and Water Conservation District have written to the Attorney General to request the opinion of this office on the requirements of G.S. § 139-7 for appointed supervisors. A copy of this opinion request is attached. Steve Bennett has also requested an opinion on this question. It should be noted at the outset that the statute in question has been amended since the last time this question was asked by the Soil and Water Conservation Division in December of 1978.

In May of 1979, the General Assembly enacted House Bill 1102 entitled "An Act Relating to Membership on Soil and Water Conservation District Boards." See 1979 N.C. Sess. Laws, c. 519, s. 2. This act amended the existing law and clarified the requirement that appointive members of a Soil and Water Conservation District Board of Supervisors must be "from the district" which they are appointed to represent. An earlier memorandum dated January 2, 1979 from Dan Oakley to Grady Lane on this subject is no longer useful in this regard since it predates the legislative change: to the extent that the advice in that memorandum conflicts with this one, it is to be disregarded.

The essential question presented is what does "from the district" mean in this context. While this prepositional phrase is not as precisely defined as "resident of" or some similar phrase, it certainly indicates the legislative intent to require that supervisors be residents of the nominating district. As a preposition, "from" expresses a relationship to a place of origin and the "district" has a precise legal meaning under the Act. It is our opinion that, read together, "from the district" means that the appointee's place of origin must be within the district's boundaries. One way to read this requirement is that the appointed supervisor was born within the district, but such an interpretation would likely be constitutionally invalid since it would prohibit people's freedom to travel and deprive equal protection of the laws to non-native residents of the district. The requirement could also possibly mean that one must own property within the district boundaries to qualify for appointment, but the North Carolina Constitution prohibits property ownership as a qualification for office. The only logical and consistent way to read this requirement is that it requires residency or domicile within the district. Thus, it is our opinion that any appointment of a person not a resident within the district and upon recommendation of the district board to the Soil and Water Conservation Commission is outside the powers of either body.

It should be noted that the North Carolina Constitution requires that elected supervisors be eligible to vote for the office which they are running. See N.C. Constitution Article VI, Section 8.

In order to be eligible to vote in any election, a person must have been a N.C. resident for one year prior to the election and a resident of the particular district for at least 30 days prior to the election. See N.C. Constitution Article VI, Section 2. The General Assembly is presumed to know that the N.C. Constitution requires that elected supervisors be residents and eligible voters within the county or district of representation. The Soil Conservation Districts Law uses the language "from the county or counties in the district" to describe the elective supervisors. See G.S. § 139-7. The General Assembly added the "county or counties" language to require that where a multi-county district is involved, an elected supervisor must be "from" the county of his election. Because the General Assembly used the same preposition "from" to describe the relationship of elected officials to the district as it did for appointed officials, it is our opinion that the General Assembly's intent was to require that supervisors be residents of the district to which they are appointed. Under the facts as presented, the supervisor in question was not eligible to vote in the district involved, nor did he reside there. Under these facts, it is our opinion that the nonresident is ineligible to serve as a supervisor under the Soil Conservation Districts Law.

Daniel C. Oakley Senior Deputy Attorney General

James P. Longest, Jr.

Associate Attorney General