5-a - Zoning Atlas Amendment - Conditional Zoning – Master Plan Development Conditional Zoning District (MPD-CZ) Settlers Point

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7 153A-340(g) states “A member of the board of county commissioners shall not vote on any zoning map or text amendment where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member” (emphasis added). Assuming the facts above to be true: • There appears to be no direct financial impact because you have had no involvement in this project through your employment with Summit and will experience neither a financial benefit or detriment regardless of the outcome of the vote on the project; • Even if there is an indirect financial impact to you from some positive or negative outcome experienced by Summit as a business this indirect impact is not at this time quantifiable and is certainly not so substantial that it is apparent to a neutral observer, so this may not be considered for purposes of whether you may be excused from voting; • Neither your compensation nor your continued employment are related in any way to this project and so I also cannot determine that there is a readily identifiable financial impact to you from the project. There is a North Carolina case that, although not directly on point, provides guidance in this situation on the question of what constitutes direct and substantial impact. City of Albemarle v. Security Bank & Trust Co., involved a council vote on the condemnation of property owned by Security Bank & Trust Co. Three members of the council voted on the condemnation, which directly impacted the bank’s business and property. The three were employed by another bank that was in direct competition with Security Bank & Trust Co. They held positions of Director, Assistant Vice President, and Branch Manager. The Court held that even though they may experience some indirect impact to their financial interest from something negative happening to Security Bank & Trust Co., the impact was “too remote and infinitesimal to give rise to a conflict of interest.” Similarly, you could have some positive or negative experience if the company that employs you has a positive or negative impact from the Board’s vote on the project, but your personal experience will not, pursuant to the facts you’ve provided, be direct, substantial, or readily identifiable. There is no provision in the law as it relates to county boards of commissioners that allows commissioners to recuse themselves from voting. The board itself must excuse, by vote, a member from voting and then only in the stated circumstances. The mere appearance of impropriety or appearance of a conflict of interest is not sufficient to warrant an excusal. To a person unfamiliar with the voting statutes it may appear that impropriety or a conflict exists based on your employment with Summit, however, the facts you’ve related to me suggest no actual impropriety or conflict of interest exists. My conclusion is that you may not be excused by the Board from voting and have a statutory duty to vote on this item. James Bryan will be at tonight’s quarterly public hearing and I’ve discussed this issue with him. I’ve also copied the Board and as you requested the manager and planning director. Let me know if you have any questions. John L. Roberts Orange County Attorney Commissioner Marcoplos said he noticed that schools are an allowable land use, and clarified that a school can be sited there, but there is no land designated for a school in this area. Michael Harvey said yes, there is no designated area. He said the Applicant did request that a school be an allowed use, but noted that staff’s recommendation is that any school developed in this project only be allowed subject to the review and approval of a class A Special 38