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.

Variances

State law requires a four-fifths majority of the decision-making board to issue a variance.  G.S. 160D-406(i).  This 4/5 rule applies to any board making the variance decision.

This requirement for a supermajority for variances has been in the North Carolina zoning statute since its adoption in 1923.  When strict application of the terms of the ordinance imposes an unnecessary hardship, variances allow a landowner to be granted relief short of having the ordinance amended or going to court.  See this post for more on the standards for granting a variance. Since a variance authorizes an action contrary to the requirements that apply to everyone else, the requirement of a supermajority helps assure these are only granted when there is a strong consensus of the reviewing board that the rigorous standards for a variance have been met.

When all a board’s members are present and voting, calculation of the required 4/5 majority is straight-forward. Multiply the number of members of the board by 0.8 to get the number of votes required to issue a variance (80% being 4/5 of the board). So, with a typical five-member board, 5 x 0.8 = 4, so four affirmative votes are needed to issue a variance. For a seven-member board, 7 x 0.8 = 5.6, so five votes would be insufficient and six affirmative votes are needed to issue a variance.

The situation gets a bit more complicated if all the board members do not vote. Consider this situation:

Maggie Greene has applied for a variance to locate her new garage 5 feet into the required 20-foot side yard setback.  The variance request is being considered by the Woodbury board of adjustment, which has nine members. Lorrie Grimes, a dedicated member of the board, is home taking care of a sick child so she does not attend the hearing or participate in the case at all. There are no alternate members available to take Lorrie’s place for this case. After hearing all the testimony, the board votes 7-1 to grant the variance.  Can Maggie celebrate and tell her contractor to start work?

This scenario raises the question of the impact a non-voting member has on calculation of the required supermajority.  If the board has nine members and one member is absent, does the variance applicant need four-fifths of nine (the full membership of the board) or four-fifths of eight (the members present and voting)? In our case, if the computation requires four-fifths of all nine members, eight votes are required to grant a variance (9 x 0.8 = 7.2). If the computation requires four-fifths of the eight members present, only seven votes are required to grant the variance (8 x 0.8 = 6.4). So, was the variance granted?

The answer depends on why the member is not voting.

G.S. 160D-406(i) states that “the concurring votes of four-fifths of the board” are required to grant a variance.  Therefore, generally the computation of the supermajority for a variance is based on the full complement of a board’s membership.  However, this statute goes on to state that if a seat is vacant or the member cannot vote due to a conflict of interest, that seat is not counted in computing the required supermajority.

Lorrie is still a member of the board and she did not have a conflict of interest. Therefore, Lorrie’s seat is counted in the calculation. The vote was 7-1 in favor, so Maggie did not receive the necessary eight votes.  The variance was denied.  It does not matter whether the member’s absence is “excused” due to an illness.  (See Frayda Bluestein’s post on excused and unexcused absences.)  For this reason, many local governments set the quorum for boards making variance decisions at four-fifths of the membership.  It is also a reason most of these boards have alternate members who can step in for absent members.  Many boards, when faced with only having four of five members present, will offer a variance applicant the opportunity to continue the hearing to a future meeting to avoid having to get unanimous support of the four members present and voting.

There are two instances, however, where the legislature has determined that this usual calculation would be unfair.  Suppose one of the seats on the board of adjustment was vacant.  In that case there is no vote to be had from that seat one way or the other.  Or suppose that one of the members had a conflict of interest and is ineligible to vote.  Again, there is no vote to be had from that seat.  The legislature has concluded that it is not fair to count a seat from which no vote is possible in the calculation of the required majority. G.S. 160D-406(i) provides that vacant seats and the seats of members who are disqualified from voting on a quasi-judicial matter under G.S. 160D-109(d) are not considered “members of the board” for purposes of the four-fifths vote computation if there are no qualified alternate members available to take the place of such members.

In our example, Lorrie did not vote because she was absent from the meeting tending to a sick child.  But a vote was possible from her seat, so it is considered in the supermajority calculation.  If she had been ineligible to vote due to a conflict of interest, however, her seat would not have been considered. In that case the variance applicant would have needed four-fifths of the eight potential votes, which is seven affirmative votes, and the variance would have been granted.

 Amendments of Development Regulations

The statutes contain detailed procedures that must be followed whenever a city or county adopts and amends development regulations. See this post by Adam Lovelady for more details on the mandated process for these legislative decisions.

The city and county statutes regarding voting by governing boards to adopt ordinances, G.S. 160A-75(c) and 153A-45 respectively, require a simple majority of “all of the members” of the board to adopt, amend, or repeal an ordinance. By referring to all members of the board, rather than all of those present and voting, this requires the majority calculation to be based on the total number of board members.

The supermajorities to adopt an ordinance on first reading do not apply to adoption or amendment of development regulations. The county statute requires a unanimous vote to adopt an ordinance on the date of introduction, but G.S. 153A-45 has long provided that this requirement does not apply to any ordinance that requires a public hearing prior to adoption (which includes all development regulations). G.S. 160A-75(c) requires a two-thirds majority to adopt an ordinance on first reading. However, as part of the enactment of Chapter 160D, that provision was amended to bring the city statute into alliance with the county statute. It now exempts ordinance enactments for development regulations from the first reading supermajority requirement.

As is the case for quasi-judicial decisions, a city or county elected official must not vote on adoption or amendment of a development regulation if the member has a conflict of interest under G.S. 160D-109(a).  G.S. 160A-75(c) specifically says the majority needed to adopt an ordinance must be of all members not excused from voting, so the seat of a member with a conflict of interest is not counted in calculating the voting majority. Prior to the repeal of the zoning protest petition in 2015 by S.L. 2015-160, G.S. 160A-385(a)(1) also explicitly provided that vacant seats, as well as those with a conflict of interest, were not included when computing the supermajority to adopt a rezoning subject to a qualified protest. That explicit provision is no longer in the statutes. But G.S. 160A-74(a) does provide that a vacant seat is not considered in computing the quorum for a governing board, so it is likely a vacant seat similarly is not counted in computing the required majority. See this post by Trey Allen regarding the impact of vacancies and members who do not vote on a quorum calculation. For counties, G.S. 153A-44 provides that a member with a conflict of interest is prohibited from voting, so the rule of not counting those seats likely also applies to county boards of commissioners.

What about a member who is present but does not vote? The voting statues for city councils (but not for county boards of commissioners) include a special provision regarding the required majority for adoption, amendment, or repeal of development regulations. The general rule for North Carolina cities is that a board member who is present must vote on all matters unless they are excused from voting by the rest of the governing board. If a member is present at the meeting but fails to vote without being excused from voting, that is automatically counted as an affirmative vote. G.S. 160A-75(a). But that statute has an exception to the general rule for development regulations (any ordinance subject to the adoption procedures in G.S. 160D-601). It provides that this rule about counting the non-vote as an affirmative vote does not apply to votes on development regulations.

Consider this scenario:

Daryl Dixon applied to have a four-acre parcel rezoned from single-family residential to multi-family residential to build a 180-unit apartment complex.  The town staff and planning board recommended approval.  Despite numerous informal meetings, the immediate neighbors remain adamantly opposed.  The city council has seven members.  Two council members are sympathetic to the neighbors’ concerns, but also see some value in the project. Seeing merits in both sides of the question, both decide to abstain from voting.  The council then votes 3-2 to approve the rezoning, with two members not voting one way or the other.  Was the rezoning adopted?

In this scenario, there is a seven-member city council considering Daryl’s rezoning request.  With a seven-member board, four votes would normally be needed to approve a rezoning or other amendment of a development regulation. Here there were only three affirmative votes. If this were not a zoning issue, the two members who were present, not excused from voting, but did not vote would be counted as affirmative votes. That would result in a 5-2 vote and adoption of the rezoning. But since it is a zoning amendment, those two votes are not counted as affirmative votes, so the final vote stands at 3-2. Since this is less than the four votes needed to be a majority of the “all of the board,” the rezoning failed.

As with variances, there is a likely different outcome if the two members who did not vote had done so because of a conflict of interest. In that situation, their seats would not have been counted in the calculation since you only need a majority of those not excused from voting. Thus, if there had been a conflict of interest for the non-voting members, a 3-2 vote would result in adoption of the rezoning.

Conclusion

In summary, the general rule is that since the statutes require the majority necessary to be calculated based on “all of the members” of a board, the calculation is based on the number of members of the board, not the number of members present and voting.  But an exception to the general rule requires you to know why a member of the board did not vote.  If no vote was cast because the seat was vacant or because the member was ineligible to vote due to a conflict of interest, that seat is not counted when making the required calculation. Also, when a city governing board is amending any development regulation (including a zoning map), the seat of a member who is present but does not vote (and who has not been excused from voting due to a conflict of interest) is not counted as an affirmative vote.