memo-11-10-2015-9e

MEMO TO:           Mayor Barber and Board of Commissioners

FROM:                  Frank A. Rush, Jr., Town Manager

SUBJECT:           Resolution Amending Board of Commissioners Rules of Procedure

The Board of Commissioners is asked to approve the attached resolution amending the Board’s formal Rules of Procedure in order to incorporate recent changes to State law regarding voting on zoning ordinances (including rezoning) and zoning protest petitions.

Session Law 2015-160 amends NCGS 160A-75 to alter the voting rules when certain kinds of zoning matters are being considered.  NCGS 160A-75 requires a board member to vote on any matter that comes before the board, unless the member has been excused from voting because either  (1) the matter concerns the member’s own financial or official conduct, or  (2) the member is prohibited from voting on the matter because it is a public contract with direct benefit to the member, is a zoning map or text amendment reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member, or it is a quasi-judicial matter for which the member has a fixed opinion not susceptible to change, undisclosed ex parte communications, a close relationship to an affected person, or a financial interest in the outcome.  Prior to Session Law 2015-160, State law provided that a board member’s failure to vote (abstain) in any situation other than those described above had to be recorded as an affirmative vote if  (1) the member was physically present in the council chamber, or  (2) the member avoided voting by leaving the chamber without being excused by a majority vote of the remaining members present.  This default “yes” rule renders all abstentions as “yes” votes.  Session Law 2015-160 leaves the default “yes” rule in place for all board votes except for those taken under NCGS 160A-385 - votes to amend or repeal zoning ordinances, including rezoning.  Under the new law, when the matter in question is a zoning issue, a board member’s unexcused failure to vote must be recorded as an abstention, not as an affirmative vote.  This limited exception to the default “yes” rule could make it more difficult for a board to put together the majorities necessary to adopt controversial zoning ordinance changes.  It will no longer be possible for a member to supply a vote in favor of such a measure without actually casting a vote in support of it.

The attached resolution amends Rule 21.- Duty to Vote - of the Board’s Rules of Procedures to implement the new law described above.  Essentially, it is now possible for a member of the Emerald Isle Board of Commissioners to abstain from voting on a zoning issue, and it would not be counted as a “yes” vote.  The result of the vote would simply be determined based on the number of actual votes cast.

Session Law 2015-160 also eliminates the ability for citizens affected by a proposed rezoning to file a “zoning protest petition”.  Prior to the new law, a petition filed by the owners of 20% of the area affected by the proposed rezoning or by the owners of 5% of a buffer area triggered a requirement for a zoning decision to achieve a 3/4 super-majority vote in order to be approved (rather than a simple majority).  The attached resolution also amends Rule 23. Adoption of Ordinances and Approval of Contracts to simply delete references to the “zoning protest petition”.

I recommend approval of the attached resolution.