Impermissible Considerations for Legislative Development Decisions

“We don’t want those people to move in here!” “A church may be okay, but not a mosque!” “We need condos, not apartments!” These are a few of the many statements that raise red flags in a zoning matter.

In general, legislative decisions such as zoning map amendments are left to the discretion of the governing board. There are many valid considerations for whether to approve the change: adopted plans and policies, technical analysis, judgment about what is in the best interest of the community, and more.

But there are limits. Some topics are out of bounds, and zoning decisions must not be based on those factors. This blog highlights those impermissible considerations. Read more »

New SOG Bulletin: Ethical Dilemmas in Client Representation for DSS Attorneys in North Carolina

An attorney who represents a department of social services (DSS) faces a variety of unique ethical challenges when it comes to client representation. Who is the attorney’s client? How should the attorney report malfeasance within the agency? A number of factors make these determinations particularly challenging in North Carolina.

First, North Carolina counties use a number of different models to provide legal services to county social services agencies.  DSS attorneys in North Carolina may be staff attorneys employed directly by the county DSS or a consolidated human services agency (CHSA), county or assistant county attorneys, special county attorneys for social services (G.S 108A-16), or attorneys in private practice under contract to represent the county DSS or CHSA. The direction and supervision a DSS attorney receives may vary depending on which type of arrangement a county uses to provide legal services. Read more »

An In-Depth Look at Religious Exemptions from COVID-19 Vaccine Mandates

An increasing number of employers are making vaccination against COVID-19 a condition of employment. In the near future, the federal Occupational Safety and Health Administration (OSHA) and the North Carolina Division of Occupational Safety and Health (NC OSH) are likely to require most larger employers to adopt a vaccine mandate (see here). Vaccine mandates are lawful, subject only to religious exceptions required by Title VII of the Civil Rights Act of 1964 and medical exceptions required by the Americans with Disabilities Act (ADA). Media reports suggest that employees are asking for religious or religious medical exemptions in significant numbers. An earlier blog post discussed medical exemptions from vaccine mandates see here). This blog post looks at the religious exemption under Title VII.  Read more »

Legislature Decriminalizes Local Ordinances

For some time, under North Carolina law, violations of city and county ordinances have been treated as misdemeanors or infractions unless the ordinance explicitly said that they were not.  Starting in 2018, the General Assembly embarked on a project to decriminalize local government ordinances. Some of you may remember the call for a list of your ordinances that were criminally enforceable to be sent to two join legislative committees. This was no small feat, as described  here and here.  The law at the time (GS 153A-123, counties; 160A-175, cities) held that unless the city or county provided otherwise, a violation of an ordinance was a misdemeanor or infraction as provided by G.S. 14-4. So, by default, if city or county didn’t take action otherwise, ordinances were enforced criminally. The result for some units, is that the majority of ordinances were criminally enforced. This year the legislature removed the default criminal penalty, and modified local governments’ authority to enforce ordinances criminally. This blog post summarizes the changes. These provisions become effective on December 1, 2021.  Read more »

Considerations for Legislative Development Decisions

A property owner has requested for the local government to rezone her property to allow for significant new development. This could bring substantial new investments, business, and residents. But it could also change the character of the place, burden public infrastructure, and alter neighborhood demographics. Should the local government approve the rezoning?

In general, legislative decisions such as zoning map amendments are left to the discretion of the governing board. Local elected officials may take in public opinion, technical analysis, and political judgment about what is in the best interest of the community. Some considerations are good and even required—planning board recommendation and comprehensive plan consistency, for example. Other considerations are off limits. Governing board members must not base decisions on the race, ethnicity, or religion of the applicant, landowner, or future tenants of the property.

This blog outlines those good and necessary considerations for legislative development decisions. A separate blog highlights the topics that are out of bounds. Read more »

The Impact of S.L. 2021-132 on the Confidentiality of Child Protective Services Information and Records

As the 2021 Legislative Session continues, one new session law that addresses child welfare, S.L. 2021-132, has raised a number of questions for county department of social services (“DSS”) directors and attorneys. This new session law has many elements related to child welfare court proceedings, which my colleague Sara DePasquale will address in a separate blog post. This blog focuses solely on Section 1.(c) of S.L. 2021-132, which amends G.S. 7B-302 – a law that addresses confidentiality of child protective services (“CPS”) records. The amendment allows members of the North Carolina General Assembly to access confidential social services information and records in certain limited instances. Read more »

Analyzing Property Tax Appeals for Systemic Bias

Last year I wrote about the “assessment gap” that disadvantages poor and minority homeowners in many states, including North Carolina. Intrigued by that national study of the property tax appraisal process, I decided to learn if similar evidence of systemic bias exists in North Carolina’s property tax appeal process.

My goal was to answer two questions about property tax appeal rates and results. First, do poor and minority taxpayers appeal their property tax appraisals as often as do wealthy and White taxpayers? Second, when poor and minority taxpayers appeal their tax appraisals, do they achieve similar results as do wealthy and White taxpayers?

If not, then this “appeal gap” might explain some of the previously identified assessment gap; fewer successful appeals from poor and minority taxpayers would contribute to higher tax appraisals relative to market value for those taxpayers. Read more »