Recent Blog Posts

  • What Conditions Can Be Included in Conditional Zoning?

    Authored by: on Thursday, November 11th, 2021

    Conditional zoning is a popular development regulation tool used in North Carolina. Legislative conditional zoning was first used in the state in the 1990s, was approved by the courts in 2001, and was expressly authorized by the zoning statutes in 2005. It is now the most frequently made rezoning in the state. With this widespread use comes the question of just what conditions can be included in a conditional rezoning. Read more »

  • Administrative Minor Modifications of Development Approvals

    Authored by: on Tuesday, November 9th, 2021

    After site plan approval, the developer discovers a need to alter slightly the layout of the building. After a conditional zoning approval, the property owner decides to alter the parking layout to make better use of green space. And after a special use permit, the applicant requests permission to increase slightly the height of the building based on new architectural drawings. Do these actions require a full review by the board that approved the original development approval? Not necessarily.

    This blog outlines the options and limits for administrative minor modifications for development approvals. Read more »

  • Major Amendments to Approved Developments

    Authored by: on Thursday, November 4th, 2021

    Several years ago the town council approved a major development. Part of the development is complete, but several phases remain. The developer wants to substantially alter the approved plans for the remaining phases.

    Can the developer change the original approval? What is the process to do so? And who has to consent to the change? This blog explores those questions. Read more »

  • Impermissible Considerations for Legislative Development Decisions

    Authored by: on Friday, October 15th, 2021

    “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

    Authored by: on Wednesday, October 13th, 2021

    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

    Authored by: on Friday, October 8th, 2021

    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

    Authored by: on Thursday, October 7th, 2021

    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 »