Calculating the Majority Vote Required for Variances and Development Regulation Amendments

Note:  A version of this post was originally published 9/30/2013. The post was updated and substantially revised on 12/7/21 to reflect repeal of the zoning protest petition statute, adoption of Ch. 160D, and amendment of the city voting statute.

When a governing board, board of adjustment, or planning board decides a matter, the general rule is that a simple majority of the board determines the outcome of the vote.

This general rule gets more complicated for variances and amendments of development regulations. A 4/5 majority is required to grant a development regulation variance. How is this 4/5 majority calculated when there are members absent or a member has a conflict of interest? Do those same rules regarding vacancies and those with conflicts apply to the governing board vote on a zoning map or text amendment? What if a governing board member is present but does not vote on a proposed development regulation amendment?

North Carolina statutes have specific rules that address calculation of the majority required to approve a variance or to amend a development regulation. The statutes specify how an absent member or a member with a conflict of interest affect the majority required. The statutes also have a special rule that applies to city council members who are present but do not vote on a development regulation amendment.

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Permit Choice Rule for Development Regulations

At a prominent corner in downtown, there’s a vacant lot. The adopted Downtown Plan envisions a café or a bookshop or a boutique—something to contribute to a walkable, touristy downtown. The owner of the vacant lot has a different vision. The owner submits a site plan and application for zoning approval for an auto repair shop. Town council is alarmed to learn that the zoning ordinance still allows such auto-oriented uses at prominent sites downtown. Council quickly proceeds to amend the ordinance to prohibit auto repair shops, gas stations, and related auto-oriented businesses in the downtown district.

So, can the owner proceed with the auto repair shop? This blog considers this scenario and the details of the permit choice rule. Read more »

Does the Federal Contractor Vaccine Mandate Apply to Local Governments?

The federal government’s COVID-19 Action Plan has three vaccination prongs:

• a Centers for Medicare and Medicaid Services (CMS) requirement for vaccination of all employees of CMS-certified providers of specific enumerated services;
• an Occupational Safety and Health Administration (OSHA) requirement that employers adopt either a policy requiring vaccinations or a policy allowing employees a choice between vaccination and weekly testing; and
• a requirement that employees of federal contractors receive the final shot in a COVID-19 vaccination series no later than January 4, 2022 (the “federal contractor mandate”).

Previous blog posts have addressed the CMS and OSHA vaccination requirements (see here and here). This blog post addresses the federal contractor vaccination mandate. Read on to see whether the federal contractor vaccination mandate applies to your local government unit. Read more »

The New OSHA COVID-19 Vaccination and Testing ETS: On Hold Now but Maybe Coming Soon

Under the federal government’s COVID-19 Action Plan, three  separate, new vaccine mandates will affect local government employers. Of the three, one from the Occupational Safety and Health Administration (OSHA) will have the greatest impact—if the courts let it stand. The new OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) will require employers to put a vaccine requirement in place or to test employees who are not vaccinated on a weekly basis, beginning on January 4, 2022.

Enforcement of the new OSHA ETS is presently blocked by a court order. When that legal challenge will be resolved is unclear. This blog post highlights the requirements of the new OSHA ETS. Local government employers should begin to prepare now.  If the legal challenge is resolved in favor of the new ETS, compliance could be required quickly. This blog post will be updated when the case is resolved. Read more »

Which Local Health Department Employees Must Be Vaccinated under the New CMS Rule?

Local government employers must now comply with three separate vaccine mandates from the federal government:

• one that requires employees of certain Medicare-certified healthcare organizations to receive a first dose by December 4, 2021 and a second dose by January 6, 2022 (the CMS Rule);
• one that requires employees of federal contractors to be vaccinated by January 4, 2022 (the Federal Contractor Mandate); and
• one that will require local governments to test all employees who are not vaccinated on a weekly basis beginning on January 4, 2022 and possibly later (“the new OSHA ETS”).

This blog post discusses only the first one—the CMS Rule.  The CMS Rule will apply to some local health departments and human services agencies.  But it will not apply to employees of emergency medical services, even if those services are reimbursed by Medicare and Medicaid.

Future blog posts will address the other two—the Federal Contractor Mandate and the new OSHA ETS. They have later effective dates than the CMS Rule. But if you are a local health department or a county human services agency, read on to learn more about CMS Rule.   Read more »

LIHWAP Participation and Disclosure of Public Enterprise Billing Information

*With special thanks to Kara Millonzi and Elsemarie Mullins

As local governments wrestle with administering American Rescue Plan Act (ARPA)-funded programs, the Low-Income Household Water Assistance Program (LIHWAP) has prompted public records and confidentiality questions. To administer LIHWAP, state and local Department of Health and Human Services (DHHS) agencies are requesting that local governments provide the names, addresses, social security numbers, utility account numbers, and utility account balances of qualifying residents. With this information, DHHS can verify residents’ identities to seamlessly make payments with minimal inconvenience. Local governments want to help, but can they? Read more »

Should North Carolina Bet Big on Sports Gambling?

Just three years ago, sports betting was legal in just three states.  Today you can bet legally in 33 states and the District of Columbia. The trigger for this nationwide gambling expansion was a 2018 U.S. Supreme Court decision striking down a federal law that had prevented states from legalizing sporting betting.

North Carolina first stuck a toe in the sports gambling pool in March 2021 when Harrah’s Cherokee Casino Resort accepted a bet on the Tar Heels to beat Wisconsin in the NCAA basketball tournament.  (Happily for this Duke fan, that inaugural bet was a loser.)

Sports gambling in our state is currently limited to in-person betting at two locations on tribal lands (the casinos owned by the Eastern Band of Cherokee Indians in Cherokee and Murphy) with a third (at the Catawba Indian Nation casino in Kings Mountain) opening soon. Read more »