ARTICLE 1. General Provisions.
Sec.
§ 160D-101. Application.
- The provisions of this Article shall apply to all development regulations and programs adopted pursuant to this Chapter or applicable or related local acts. To the extent there are contrary provisions in local charters or acts, G.S. 160D-111 is applicable unless this Chapter expressly provides otherwise. The provisions of this Article also apply to any other local ordinance that substantially affects land use and development.
- The provisions of this Article are supplemental to specific provisions included in other Articles of this Chapter. To the extent there are conflicts between the provisions of this Article and the provisions of other Articles of this Chapter, the more specific provisions shall control.
- Local governments may also apply any of the definitions and procedures authorized by this Chapter to any ordinance that does not substantially affect land use and development adopted under the general police power of cities and counties, Article 8 of Chapter 160A of the General Statutes and Article 6 of Chapter 153A of the General Statutes respectively, and may employ any organizational structure, board, commission, or staffing arrangement authorized by this Chapter to any or all aspects of those ordinances.
- This Chapter does not expand, diminish, or alter the scope of authority for planning and development regulation authorized by other Chapters of the General Statutes.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2019-111, s. 2.4, enacted this Chapter as G.S. 160D-1-1 through 160D-14-5. The sections herein were renumbered as G.S. 160D-101 through 160D-1405 at the direction of the Revisor of Statutes. For effective date and applicability, see below the editor's notes for Session Laws 2019-111, s. 3.2, as amended by Session Laws 2020-3, s. 4.33(a), and as repealed by Session Laws 2020-25, s. 51(a), (d), and for Session Laws 2020-25, s. 51(b).
Session Laws 2019-111, s. 2.8, is a severability clause.
Session Laws 2019-111, s. 2.10, provides: "If Part II of this act becomes law in 2019, it is the intent of the General Assembly that legislation contained in Part I of this act or in other acts enacted in the 2019 Regular Session of the 2019 General Assembly, or that affects statutes repealed and replaced by similar provisions in Chapter 160D of the General Statutes, as enacted by Part II of this act, also be incorporated into Chapter 160D of the General Statutes. It is the further intent of the General Assembly that legislation contained in the telecommunications provisions of Part II of this act makes no substantive policy changes from the statutes repealed. The North Carolina General Statutes Commission shall study the need for legislation to accomplish this intent and shall report its findings and recommendations, including any legislative proposals, to the 2020 Regular Session of the 2019 General Assembly."
Session Laws 2019-111, s. 2.1(a)-(f), provides: "(a) The General Assembly finds that a coherent organization of the statutes that authorize local government planning and development regulation is needed to make the statutes simpler to find, easier to follow, and more uniform for all local governments.
"(b) The General Assembly finds that the parallel system of separate city and county statutes regarding planning and development regulation has led to redundancy and unintended differences in the wording of planning and development regulation statutes on the same subject.
"(c) The General Assembly finds that numerous specialized statutes affecting local planning and development regulation have been added in disparate Chapters of the General Statutes over past decades, and that antiquated and confusing language exists in the planning and development regulation statutes.
"(d) The General Assembly finds that, other than collecting some of these statutes into Article 19 of Chapter 160A of the General Statutes in 1971 and Article 18 of Chapter 153A of the General Statutes in 1973, no comprehensive reorganization of North Carolina's planning and development regulation statutes has been undertaken.
"(e) The intent of the General Assembly by enactment of Part II of this act is to collect and organize existing statutes regarding local planning and development into a single Chapter of the General Statutes and to consolidate the statutes affecting cities and counties.
"(f) The intent of the General Assembly by enactment of Part II of this act is to neither eliminate, diminish, enlarge, nor expand the authority of local governments to exact land, construction, or money as part of the development approval process or otherwise materially alter the scope of local authority to regulate development and any modifications from earlier versions of Part II of this bill should not be interpreted to affect the scope of local government authority."
Session Laws 2019-111, s. 2.9(a)-(c), provides: "(a) Any otherwise valid permit or development approval made prior to January 1, 2021, shall not be invalid based on inconsistency with the provisions of this act. The validity of any plan adopted prior to January 1, 2021, is not affected by a failure to comply with the procedural requirements of G.S. 160D-5-1(b).
"(b) Any special use district or conditional use district zoning district that is valid and in effect as of January 1, 2021, shall be deemed a conditional zoning district consistent with the terms of this act, and the special or conditional use permits issued concurrently with establishment of those districts shall be valid as specified in Section 2.9.(a) of this act. Any valid 'conditional use permit' issued prior to January 1, 2021, shall be deemed a 'special use permit' consistent with the provisions of this act.
"(c) Any local government that has adopted zoning regulations but that has not adopted a comprehensive plan shall adopt such plan no later than July 1, 2022, in order to retain the authority to adopt and apply zoning regulations."
Session Laws 2019-111, s. 3.2 provided for the delayed enactment of this Chapter, effective January 1, 2021, and applicable to local government development regulation decisions made on or after that date, and further provided that "Part II of this act clarifies and restates the intent of existing law and applies to ordinances adopted before, on, and after the effective date." Session Laws 2020-3, s. 4.33(a), extended the delayed enactment date of this Article, making it effective August 1, 2021, and applicable to local government development regulation decisions made on or after that date. Session Laws 2020-25, s. 51(a), (d), repealed Session Laws 2019-111, s. 3.2, and Session Laws 2020-3, s. 4.33, effective June 19, 2020.
Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020.]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Session Laws 2020-97, s. 3.21(a)-(g), as amended by Session Laws 2021-3, s. 2.21(a), provides: '(a) Definitions. - As used in this section, the following definitions apply:
"(1) Development approval. - Any of the following approvals issued by any unit of local government, regardless of the form of the approval, that are for the development of land:
"a. Any approval of an erosion and sedimentation control plan granted by a local government under Article 4 of Chapter 113A of the General Statutes.
"b. Any building permit issued under Article 9 of Chapter 143 of the General Statutes.
"c. Any approval by a county of sketch plans, preliminary plats, plats regarding a subdivision of land, a site-specific development plan or a phased development plan, a development permit, a development agreement, or a building permit under Chapter 160D of the General Statutes.
"d. Any approval by a city of sketch plans, preliminary plats, plats regarding a subdivision of land, a site-specific development plan or a phased development plan, a development permit, a development agreement, or a building permit under Chapter 160D of the General Statutes.
"e. Any certificate of appropriateness issued by a preservation commission of a city under Chapter 160D of the General Statutes.
"(2) Development. - The division of a parcel of land into two or more parcels; the construction, reconstruction, conversion, structural alteration, relocation, or enlargement of any building or other structure or facility; or any grading, soil removal or relocation, excavation or landfill, or any use or change in the use of any building or other structure or land or extension of the use of land.
"(b) For any development approval that is current and valid at any point during the period beginning September 2, 2020, and ending 30 days after Executive Order No. 116 is rescinded, the expiration date of the period of the development approval and any associated vested right under G.S. 160D-108 or G.S. 160D-108.1 is automatically extended 150 days from the date the Executive Order is rescinded.
"(c) This section shall not be construed or implemented to:
"(1) Extend any permit or approval issued by the United States or any of its agencies or instrumentalities.
"(2) Extend any permit or approval for which the term or duration of the permit or approval is specified or determined pursuant to federal law.
"(3) Shorten the duration that any development approval would have had in the absence of this section.
"(4) Prohibit the granting of such additional extensions as are provided by law.
"(5) Affect any administrative consent order issued by the Department of Environmental Quality in effect or issued at any time from the effective date of this section to 30 days after Executive Order No. 116 is rescinded.
"(6) Affect the ability of a government entity to revoke or modify a development approval or to accept voluntary relinquishment of a development approval by the holder of the development approval pursuant to law.
"(7) Modify any requirement of law that is necessary to retain federal delegation by the State of the authority to implement a federal law or program.
"(8) Modify any person's obligations or impair the rights of any party under contract, including bond or other similar undertaking.
"(9) Authorize the charging of a water or wastewater tap fee that has been previously paid in full for a project subject to a development approval.
"(d) The provisions of this section shall be liberally construed to effectuate the purposes of this section.
"(e) For any development approval extended by this section, the holder of the development approval shall:
"(1) Comply with all applicable laws, regulations, and policies in effect at the time the development approval was originally issued by the governmental entity.
"(2) Maintain all performance guarantees that are imposed as a condition of the initial development approval for the duration of the period the development approval is extended or until affirmatively released from that obligation by the issuing governmental entity.
"(3) Complete any infrastructure necessary in order to obtain a certificate of occupancy or other final permit approval from the issuing governmental entity.
"(f) Failure to comply with any condition in this section may result in termination of the extension of the development approval by the issuing governmental entity. In the event of a termination of the extension of a development approval, the issuing governmental entity shall provide written notice to the last known address of the original holder of the development approval of the termination of the extension of the development approval, including the reason for the termination. Termination of an extension of a development approval shall be subject to appeal to the Board of Adjustment under the requirements set forth in law if the development approval was issued by a unit of local government with planning authority under Chapter 160D of the General Statutes.
"(g) This section is effective when it becomes law and expires 30 days after Executive Order No. 116 is rescinded. Any development approval extended in accordance with subsection (b) of this section shall remain in effect until 150 days from the date the Executive Order is rescinded in accordance with subsection (b) of this section."
Session Laws 2020-97, s. 4.5, is a severability clause.
§ 160D-102. Definitions.
Unless otherwise specifically provided, or unless otherwise clearly required by the context, the words and phrases defined in this section shall have the following meanings indicated when used in this Chapter:
- Administrative decision. - Decisions made in the implementation, administration, or enforcement of development regulations that involve the determination of facts and the application of objective standards set forth in this Chapter or local government development regulations. These are sometimes referred to as ministerial decisions or administrative determinations.
- Administrative hearing. - A proceeding to gather facts needed to make an administrative decision.
- Bona fide farm purposes. - Agricultural activities as set forth in G.S. 160D-903.
- Charter. - As defined in G.S. 160A-1(2).
- City. - As defined in G.S. 160A-1(2).
- Comprehensive plan. - A comprehensive plan that has been officially adopted by the governing board pursuant to G.S. 160D-501.
- Conditional zoning. - A legislative zoning map amendment with site-specific conditions incorporated into the zoning map amendment.
- County. - Any one of the counties listed in G.S. 153A-10.
- Decision-making board. - A governing board, planning board, board of adjustment, historic district board, or other board assigned to make quasi-judicial decisions under this Chapter.
- Determination. - A written, final, and binding order, requirement, or determination regarding an administrative decision.
- Developer. - A person, including a governmental agency or redevelopment authority, who undertakes any development and who is the landowner of the property to be developed or who has been authorized by the landowner to undertake development on that property.
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Development. - Any of the following:
- The construction, erection, alteration, enlargement, renovation, substantial repair, movement to another site, or demolition of any structure.
- The excavation, grading, filling, clearing, or alteration of land.
- The subdivision of land as defined in G.S. 160D-802.
- The initiation or substantial change in the use of land or the intensity of use of land.
- Development approval. - An administrative or quasi-judicial approval made pursuant to this Chapter that is written and that is required prior to commencing development or undertaking a specific activity, project, or development proposal. Development approvals include, but are not limited to, zoning permits, site plan approvals, special use permits, variances, and certificates of appropriateness. The term also includes all other regulatory approvals required by regulations adopted pursuant to this Chapter, including plat approvals, permits issued, development agreements entered into, and building permits issued.
- Development regulation. - A unified development ordinance, zoning regulation, subdivision regulation, erosion and sedimentation control regulation, floodplain or flood damage prevention regulation, mountain ridge protection regulation, stormwater control regulation, wireless telecommunication facility regulation, historic preservation or landmark regulation, housing code, State Building Code enforcement, or any other regulation adopted pursuant to this Chapter, or a local act or charter that regulates land use or development.
- Dwelling. - Any building, structure, manufactured home, or mobile home, or part thereof, used and occupied for human habitation or intended to be so used, and includes any outhouses and appurtenances belonging thereto or usually enjoyed therewith. For the purposes of Article 12 of this Chapter, the term does not include any manufactured home, mobile home, or recreational vehicle, if used solely for a seasonal vacation purpose.
- Evidentiary hearing. - A hearing to gather competent, material, and substantial evidence in order to make findings for a quasi-judicial decision required by a development regulation adopted under this Chapter.
- Governing board. - The city council or board of county commissioners. The term is interchangeable with the terms "board of aldermen" and "boards of commissioners" and means any governing board without regard to the terminology employed in charters, local acts, other portions of the General Statutes, or local customary usage.
- Landowner or owner. - The holder of the title in fee simple. Absent evidence to the contrary, a local government may rely on the county tax records to determine who is a landowner. The landowner may authorize a person holding a valid option, lease, or contract to purchase to act as his or her agent or representative for the purpose of making applications for development approvals.
- Legislative decision. - The adoption, amendment, or repeal of a regulation under this Chapter or an applicable local act. The term also includes the decision to approve, amend, or rescind a development agreement consistent with the provisions of Article 10 of this Chapter.
- Legislative hearing. - A hearing to solicit public comment on a proposed legislative decision.
- Local act. - As defined in G.S. 160A-1(5).
- Local government. - A city or county.
- Manufactured home or mobile home. - A structure as defined in G.S. 143-145(7).
- Person. - An individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, the State of North Carolina and its agencies and political subdivisions, or other legal entity.
- Planning and development regulation jurisdiction. - The geographic area defined in Part 2 of this Chapter within which a city or county may undertake planning and apply the development regulations authorized by this Chapter.
- Planning board. - Any board or commission established pursuant to G.S. 160D-301.
- Property. - All real property subject to land-use regulation by a local government. The term includes any improvements or structures customarily regarded as a part of real property.
- Quasi-judicial decision. - A decision involving the finding of facts regarding a specific application of a development regulation and that requires the exercise of discretion when applying the standards of the regulation. The term includes, but is not limited to, decisions involving variances, special use permits, certificates of appropriateness, and appeals of administrative determinations. Decisions on the approval of subdivision plats and site plans are quasi-judicial in nature if the regulation authorizes a decision-making board to approve or deny the application based not only upon whether the application complies with the specific requirements set forth in the regulation, but also on whether the application complies with one or more generally stated standards requiring a discretionary decision on the findings to be made by the decision-making board.
- Site plan. - A scaled drawing and supporting text showing the relationship between lot lines and the existing or proposed uses, buildings, or structures on the lot. The site plan may include site-specific details such as building areas, building height and floor area, setbacks from lot lines and street rights-of-way, intensities, densities, utility lines and locations, parking, access points, roads, and stormwater control facilities that are depicted to show compliance with all legally required development regulations that are applicable to the project and the site plan review. A site plan approval based solely upon application of objective standards is an administrative decision and a site plan approval based in whole or in part upon the application of standards involving judgment and discretion is a quasi-judicial decision. A site plan may also be approved as part of a conditional zoning decision.
- Special use permit. - A permit issued to authorize development or land uses in a particular zoning district upon presentation of competent, material, and substantial evidence establishing compliance with one or more general standards requiring that judgment and discretion be exercised as well as compliance with specific standards. The term includes permits previously referred to as conditional use permits or special exceptions.
- Subdivision. - The division of land for the purpose of sale or development as specified in G.S. 160D-802.
- Subdivision regulation. - A subdivision regulation authorized by Article 8 of this Chapter.
- Repealed by Session Laws 2020-25, s. 3, effective June 19, 2020.
- Zoning map amendment or rezoning. - An amendment to a zoning regulation for the purpose of changing the zoning district that is applied to a specified property or properties. The term also includes (i) the initial application of zoning when land is added to the territorial jurisdiction of a local government that has previously adopted zoning regulations and (ii) the application of an overlay zoning district or a conditional zoning district. The term does not include (i) the initial adoption of a zoning map by a local government, (ii) the repeal of a zoning map and readoption of a new zoning map for the entire planning and development regulation jurisdiction, or (iii) updating the zoning map to incorporate amendments to the names of zoning districts made by zoning text amendments where there are no changes in the boundaries of the zoning district or land uses permitted in the district.
- Zoning regulation. - A zoning regulation authorized by Article 7 of this Chapter.
This definition does not alter the scope of regulatory authority granted by this Chapter.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 3, 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 3, effective June 19, 2020, rewrote subdivision (6); substituted "Any of" for "Unless the context clearly indicates otherwise, the term means any of" in the introductory paragraph of subdivision (12); substituted "means any" for "shall mean any" in subdivision (17); substituted "G.S. 160A-1(5)" for "G.S. 160A-1(2)" in subdivision (21); and deleted subdivision (33), which defined "Vested right."
§ 160D-103. Unified development ordinance.
A local government may elect to combine any of the regulations authorized by this Chapter into a unified ordinance. Unless expressly provided otherwise, a local government may apply any of the definitions and procedures authorized by law to any or all aspects of the unified ordinance and may employ any organizational structure, board, commission, or staffing arrangement authorized by law to any or all aspects of the ordinance. Inclusion of a regulation authorized by this Chapter or local act in a unified development ordinance does not expand, diminish, or alter the scope of authority for those regulations.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-104. Development approvals run with the land.
Unless provided otherwise by law, all rights, privileges, benefits, burdens, and obligations created by development approvals made pursuant to this Chapter attach to and run with the land.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-105. Maps.
- Zoning Map. - Zoning district boundaries adopted pursuant to this Chapter shall be drawn on a map that is adopted or incorporated within a duly adopted development regulation. Zoning district maps that are so adopted shall be maintained for public inspection in the office of the local government clerk or such other office as specified in the development regulation. The maps may be in paper or a digital format approved by the local government.
- Incorporation by Reference. - Development regulations adopted pursuant to this Chapter may reference or incorporate by reference flood insurance rate maps, watershed boundary maps, or other maps officially adopted or promulgated by State and federal agencies. For these maps a regulation text or zoning map may reference a specific officially adopted map or may incorporate by reference the most recent officially adopted version of such maps. When zoning district boundaries are based on these maps, the regulation may provide that the zoning district boundaries are automatically amended to remain consistent with changes in the officially promulgated State or federal maps, provided a copy of the currently effective version of any incorporated map shall be maintained for public inspection as provided in subsection (a) of this section.
- Copies. - Copies of the zoning district map may be reproduced by any method of reproduction that gives legible and permanent copies and, when certified by the local government clerk in accordance with G.S. 160A-79 or G.S. 153A-50, shall be admissible into evidence and shall have the same force and effect as would the original map.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 4.34(a), (b), provides: "(a) Land use development ordinances adopted by a county or city may reference or incorporate by reference flood insurance rate maps, watershed boundary maps, or other maps officially adopted or promulgated by State and federal agencies. For these maps, a land use development ordinance or zoning map may reference a specific officially adopted map or may incorporate by reference the most recent officially adopted version of such maps. When zoning district boundaries are based on these maps, the land use development ordinance may provide that the zoning district boundaries are automatically amended to remain consistent with changes in the officially promulgated State or federal maps, provided a copy of the currently effective version of any incorporated map shall be maintained for public inspection by the county or city.
"(b) This section is effective when it becomes law and expires August 1, 2021."
Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-106. Refund of illegal fees.
If a local government is found to have illegally imposed a tax, fee, or monetary contribution for development or a development approval not specifically authorized by law, the local government shall return the tax, fee, or monetary contribution plus interest of six percent (6%) per annum to the person who made the payment or as directed by a court if the person making the payment is no longer in existence.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-107. Moratoria.
- Authority. - As provided in this section, local governments may adopt temporary moratoria on any development approval required by law, except for the purpose of developing and adopting new or amended plans or development regulations governing residential uses. The duration of any moratorium shall be reasonable in light of the specific conditions that warrant imposition of the moratorium and may not exceed the period of time necessary to correct, modify, or resolve such conditions.
- Hearing Required. - Except in cases of imminent and substantial threat to public health or safety, before adopting a development regulation imposing a development moratorium with a duration of 60 days or any shorter period, the governing board shall hold a legislative hearing and shall publish a notice of the hearing in a newspaper having general circulation in the area not less than seven days before the date set for the hearing. A development moratorium with a duration of 61 days or longer, and any extension of a moratorium so that the total duration is 61 days or longer, is subject to the notice and hearing requirements of G.S. 160D-601.
- Exempt Projects. - Absent an imminent threat to public health or safety, a development moratorium adopted pursuant to this section does not apply to any project for which a valid building permit issued pursuant to G.S. 160D-1108 is outstanding, to any project for which a special use permit application has been accepted as complete, to development set forth in a site-specific vesting plan approved pursuant to G.S. 160D-108.1, to development for which substantial expenditures have already been made in good-faith reliance on a prior valid development approval, or to preliminary or final subdivision plats that have been accepted for review by the local government prior to the call for a hearing to adopt the moratorium. Any preliminary subdivision plat accepted for review by the local government prior to the call for a hearing, if subsequently approved, shall be allowed to proceed to final plat approval without being subject to the moratorium. Notwithstanding the foregoing, if a complete application for a development approval has been submitted prior to the effective date of a moratorium, G.S. 160D-108(b) applies when permit processing resumes.
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Required Statements. - Any development regulation establishing a development moratorium must include, at the time of adoption, each of the following:
- A statement of the problems or conditions necessitating the moratorium and what courses of action, alternative to a moratorium, were considered by the local government and why those alternative courses of action were not deemed adequate.
- A statement of the development approvals subject to the moratorium and how a moratorium on those approvals will address the problems or conditions leading to imposition of the moratorium.
- A date for termination of the moratorium and a statement setting forth why that duration is reasonably necessary to address the problems or conditions leading to imposition of the moratorium.
- A statement of the actions, and the schedule for those actions, proposed to be taken by the local government during the duration of the moratorium to address the problems or conditions leading to imposition of the moratorium.
- Limit on Renewal or Extension. - No moratorium may be subsequently renewed or extended for any additional period unless the local government has taken all reasonable and feasible steps proposed to be taken in its ordinance establishing the moratorium to address the problems or conditions leading to imposition of the moratorium and unless new facts and conditions warrant an extension. Any ordinance renewing or extending a development moratorium must include, at the time of adoption, the findings set forth in subdivisions (1) through (4) of subsection (d) of this section, including what new facts or conditions warrant the extension.
- Expedited Judicial Review. - Any person aggrieved by the imposition of a moratorium on development approvals required by law may apply to the General Court of Justice for an order enjoining the enforcement of the moratorium. Actions brought pursuant to this section shall be scheduled for expedited hearing, and subsequent proceedings in those actions shall be accorded priority by the trial and appellate courts. In such actions, the local government has the burden of showing compliance with the procedural requirements of this subsection.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 4, 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 4, effective June 19, 2020, in subsection (c), in the first sentence, deleted "or phased" preceding "vesting plan" and substituted "G.S. 160D-108.1" for "G.S. 160D-108"; and made minor stylistic changes in subsections (c), (e), and (f).
§ 160D-108. Permit choice and vested rights.
- Findings. - The General Assembly recognizes that local government approval of development typically follows significant investment in site evaluation, planning, development costs, consultant fees, and related expenses. The General Assembly finds that it is necessary and desirable to provide for the establishment of certain vested rights in order to ensure reasonable certainty, stability, and fairness in the development regulation process, to secure the reasonable expectations of landowners, and to foster cooperation between the public and private sectors in land-use planning and development regulation. The provisions of this section and G.S. 160D-108.1 strike an appropriate balance between private expectations and the public interest.
- Permit Choice. - If a land development regulation is amended between the time a development permit application was submitted and a development permit decision is made or if a land development regulation is amended after a development permit decision has been challenged and found to be wrongfully denied or illegal, G.S. 143-755 applies.
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Vested Rights. - Amendments in land development regulations are not applicable or enforceable without the written consent of the owner with regard to any of the following:
- Buildings or uses of buildings or land for which a development permit application has been submitted and subsequently issued in accordance with G.S. 143-755.
- Subdivisions of land for which a development permit application authorizing the subdivision has been submitted and subsequently issued in accordance with G.S. 143-755.
- A site-specific vesting plan pursuant to G.S. 160D-108.1.
- A multi-phased development pursuant to subsection (f) of this section.
- A vested right established by the terms of a development agreement authorized by Article 10 of this Chapter.
- Duration of Vesting. - Upon issuance of a development permit, the statutory vesting granted by subsection (c) of this section for a development project is effective upon filing of the application in accordance with G.S. 143-755, for so long as the permit remains valid pursuant to law. Unless otherwise specified by this section or other statute, local development permits expire one year after issuance unless work authorized by the permit has substantially commenced. A local land development regulation may provide for a longer permit expiration period. For the purposes of this section, a permit is issued either in the ordinary course of business of the applicable governmental agency or by the applicable governmental agency as a court directive.
- Multiple Permits for Development Project. - Subject to subsection (d) of this section, where multiple local development permits are required to complete a development project, the development permit applicant may choose the version of each of the local land development regulations applicable to the project upon submittal of the application for the initial development permit. This provision is applicable only for those subsequent development permit applications filed within 18 months of the date following the approval of an initial permit. For purposes of the vesting protections of this subsection, an erosion and sedimentation control permit or a sign permit is not an initial development permit.
- Multi-Phased Development. - A multi-phased development is vested for the entire development with the land development regulations then in place at the time a site plan approval is granted for the initial phase of the multi-phased development. A right which has been vested as provided for in this subsection remains vested for a period of seven years from the time a site plan approval is granted for the initial phase of the multi-phased development.
- Continuing Review. - Following issuance of a development permit, a local government may make subsequent inspections and reviews to ensure compliance with the applicable land development regulations in effect at the time of the original application.
- Process to Claim Vested Right. - A person claiming a statutory or common law vested right may submit information to substantiate that claim to the zoning administrator or other officer designated by a land development regulation, who shall make an initial determination as to the existence of the vested right. The decision of the zoning administrator or officer may be appealed under G.S. 160D-405. On appeal, the existence of a vested right shall be reviewed de novo. In lieu of seeking such a determination or pursuing an appeal under G.S. 160D-405, a person claiming a vested right may bring an original civil action as provided by G.S. 160D-1403.1.
- Miscellaneous Provisions. - The vested rights granted by this section run with the land except for the use of land for outdoor advertising governed by G.S. 136-131.1 and G.S. 136-131.2 in which case the rights granted by this section run with the owner of a permit issued by the North Carolina Department of Transportation. Nothing in this section precludes judicial determination, based on common law principles or other statutory provisions, that a vested right exists in a particular case or that a compensable taking has occurred. Except as expressly provided in this section, nothing in this section shall be construed to alter the existing common law.
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[Definitions. - ] As used in this section, the following definitions apply:
- Development. - As defined in G.S. 143-755(e)(1).
- Development permit. - As defined in G.S. 143-755(e)(2).
- Land development regulation. - As defined in G.S. 143-755(e)(3).
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Multi-phased development. - A development containing 25 acres or more that is both of the following:
- Submitted for development permit approval to occur in more than one phase.
- Subject to a master development plan with committed elements showing the type and intensity of use of each phase.
The establishment of a vested right under any subdivision of this subsection does not preclude vesting under one or more other subdivisions of this subsection or vesting by application of common law principles. A vested right, once established as provided for in this section or by common law, precludes any action by a local government that would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property allowed by the applicable land development regulation or regulations, except where a change in State or federal law mandating local government enforcement occurs after the development application is submitted that has a fundamental and retroactive effect on the development or use.
Except where a longer vesting period is provided by statute or land development regulation, the statutory vesting granted by this section, once established, expires for an uncompleted development project if development work is intentionally and voluntarily discontinued for a period of not less than 24 consecutive months, and the statutory vesting period granted by this section for a nonconforming use of property expires if the use is intentionally and voluntarily discontinued for a period of not less than 24 consecutive months. The 24-month discontinuance period is automatically tolled during the pendency of any board of adjustment proceeding or civil action in a State or federal trial or appellate court regarding the validity of a development permit, the use of the property, or the existence of the statutory vesting period granted by this section. The 24-month discontinuance period is also tolled during the pendency of any litigation involving the development project or property that is the subject of the vesting.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 5(a), 50(b), 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 4.40(a)-(g), provides: "(a) Definitions. - As used in this section, the following definitions apply:
"(1) Development approval. - Any of the following approvals issued by any unit of local government, regardless of the form of the approval, that are for the development of land:
"a. Any approval of an erosion and sedimentation control plan granted by a local government under Article 4 of Chapter 113A of the General Statutes.
"b. Any building permit issued under Article 9 of Chapter 143 of the General Statutes.
"c. Any approval by a county of sketch plans, preliminary plats, plats regarding a subdivision of land, a site-specific development plan or a phased development plan, a development permit, a development agreement, or a building permit under Article 18 of Chapter 153A of the General Statutes.
"d. Any approval by a city of sketch plans, preliminary plats, plats regarding a subdivision of land, a site-specific development plan or a phased development plan, a development permit, a development agreement, or a building permit under Article 19 of Chapter 160A of the General Statutes.
"e. Any certificate of appropriateness issued by a preservation commission of a city under Part 3C of Article 19 of Chapter 160A of the General Statutes.
"(2) Development. - The division of a parcel of land into two or more parcels, the construction, reconstruction, conversion, structural alteration, relocation, or enlargement of any building or other structure or facility, or any grading, soil removal or relocation, excavation or landfill, or any use or change in the use of any building or other structure or land or extension of the use of land.
"(b) For any development approval that is current and valid at any point during the period beginning March 10, 2020, and ending April 28, 2020, the expiration date of the period of the development approval and any associated vested right under G.S. 153A-344.1 or G.S. 160A-385.1 is extended for five months.
"(c) This section shall not be construed or implemented to:
"(1) Extend any permit or approval issued by the United States or any of its agencies or instrumentalities.
"(2) Extend any permit or approval for which the term or duration of the permit or approval is specified or determined pursuant to federal law.
"(3) Shorten the duration that any development approval would have had in the absence of this section.
"(4) Prohibit the granting of such additional extensions as are provided by law.
"(5) Affect any administrative consent order issued by the Department of Environmental Quality in effect or issued at any time from the effective date of this section to September 28, 2020.
"(6) Affect the ability of a government entity to revoke or modify a development approval or to accept voluntary relinquishment of a development approval by the holder of the development approval pursuant to law.
"(7) Modify any requirement of law that is necessary to retain federal delegation by the State of the authority to implement a federal law or program.
"(8) Modify any person's obligations or impair the rights of any party under contract, including bond or other similar undertaking.
"(9) Authorize the charging of a water or wastewater tap fee that has been previously paid in full for a project subject to a development approval.
"(d) The provisions of this section shall be liberally construed to effectuate the purposes of this section.
"(e) For any development approval extended by this section, the holder of the development approval shall:
"(1) Comply with all applicable laws, regulations, and policies in effect at the time the development approval was originally issued by the governmental entity.
"(2) Maintain all performance guarantees that are imposed as a condition of the initial development approval for the duration of the period the development approval is extended or until affirmatively released from that obligation by the issuing governmental entity.
"(3) Complete any infrastructure necessary in order to obtain a certificate of occupancy or other final permit approval from the issuing governmental entity.
"(f) Failure to comply with any condition in this section may result in termination of the extension of the development approval by the issuing governmental entity. In the event of a termination of the extension of a development approval, the issuing governmental entity shall provide written notice to the last known address of the original holder of the development approval of the termination of the extension of the development approval, including the reason for the termination. Termination of an extension of a development approval shall be subject to appeal to the Board of Adjustment under the requirements set forth in law if the development approval was issued by a unit of local government with planning authority under Article 18 of Chapter 153A of the General Statutes or Article 19 of Chapter 160A of the General Statutes.
"(g) This section is effective when it becomes law and expires September 28, 2020."
Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 5(a), enacted subsection (j) without a heading. The bracketed heading "[Definitions. - ]" has been added to the subsection at the direction of the Revisor of Statutes.
Session Laws 2020-25, s. 50(b), effective June 19, 2020, provides: "Sections 5, 10, 14, 16, 17, 18, 45, 46, 47, [which amended or enacted 160D-108, 160D-108.1, 160D-405, 160D-603, 160D-703, 160D-705, 160D-706, 160D-1402, 160D-1403.1, 160D-1403.2, respectively] and the amendments to G.S. 160D-1405(c) in Section 48 incorporate in Chapter 160D of the General Statutes the provisions of Sections 1.2, 1.3, 1.6, 1.7, 1.8, 1.9, 1.10, 1.12, 1.13, 1.14, 1.15, and 1.17 of S.L. 2019-111 [which amended or enacted former 160A-360.1, 153A-320.1, 160A-385, 160A-385.1, 153A-344, 153A-344.1, 160A-388, 160A-393.1, 160A-364.1, 160A-393, 160A-393.2, 160A-381, 153A-340, 160A-382, 153A-342, 153A-346, and 160A-390, respectively], clarify and restate the intent of existing law, and apply to ordinances adopted before, on, and after the effective date of this act."
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Session Laws 2020-97, s. 3.21(a)-(g), as amended by Session Laws 2021-3, s. 2.21(a), provides: '(a) Definitions. - As used in this section, the following definitions apply:
"(1) Development approval. - Any of the following approvals issued by any unit of local government, regardless of the form of the approval, that are for the development of land:
"a. Any approval of an erosion and sedimentation control plan granted by a local government under Article 4 of Chapter 113A of the General Statutes.
"b. Any building permit issued under Article 9 of Chapter 143 of the General Statutes.
"c. Any approval by a county of sketch plans, preliminary plats, plats regarding a subdivision of land, a site-specific development plan or a phased development plan, a development permit, a development agreement, or a building permit under Chapter 160D of the General Statutes.
"d. Any approval by a city of sketch plans, preliminary plats, plats regarding a subdivision of land, a site-specific development plan or a phased development plan, a development permit, a development agreement, or a building permit under Chapter 160D of the General Statutes.
"e. Any certificate of appropriateness issued by a preservation commission of a city under Chapter 160D of the General Statutes.
"(2) Development. - The division of a parcel of land into two or more parcels; the construction, reconstruction, conversion, structural alteration, relocation, or enlargement of any building or other structure or facility; or any grading, soil removal or relocation, excavation or landfill, or any use or change in the use of any building or other structure or land or extension of the use of land.
"(b) For any development approval that is current and valid at any point during the period beginning September 2, 2020, and ending 30 days after Executive Order No. 116 is rescinded, the expiration date of the period of the development approval and any associated vested right under G.S. 160D-108 or G.S. 160D-108.1 is automatically extended 150 days from the date the Executive Order is rescinded.
"(c) This section shall not be construed or implemented to:
"(1) Extend any permit or approval issued by the United States or any of its agencies or instrumentalities.
"(2) Extend any permit or approval for which the term or duration of the permit or approval is specified or determined pursuant to federal law.
"(3) Shorten the duration that any development approval would have had in the absence of this section.
"(4) Prohibit the granting of such additional extensions as are provided by law.
"(5) Affect any administrative consent order issued by the Department of Environmental Quality in effect or issued at any time from the effective date of this section to 30 days after Executive Order No. 116 is rescinded.
"(6) Affect the ability of a government entity to revoke or modify a development approval or to accept voluntary relinquishment of a development approval by the holder of the development approval pursuant to law.
"(7) Modify any requirement of law that is necessary to retain federal delegation by the State of the authority to implement a federal law or program.
"(8) Modify any person's obligations or impair the rights of any party under contract, including bond or other similar undertaking.
"(9) Authorize the charging of a water or wastewater tap fee that has been previously paid in full for a project subject to a development approval.
"(d) The provisions of this section shall be liberally construed to effectuate the purposes of this section.
"(e) For any development approval extended by this section, the holder of the development approval shall:
"(1) Comply with all applicable laws, regulations, and policies in effect at the time the development approval was originally issued by the governmental entity.
"(2) Maintain all performance guarantees that are imposed as a condition of the initial development approval for the duration of the period the development approval is extended or until affirmatively released from that obligation by the issuing governmental entity.
"(3) Complete any infrastructure necessary in order to obtain a certificate of occupancy or other final permit approval from the issuing governmental entity.
"(f) Failure to comply with any condition in this section may result in termination of the extension of the development approval by the issuing governmental entity. In the event of a termination of the extension of a development approval, the issuing governmental entity shall provide written notice to the last known address of the original holder of the development approval of the termination of the extension of the development approval, including the reason for the termination. Termination of an extension of a development approval shall be subject to appeal to the Board of Adjustment under the requirements set forth in law if the development approval was issued by a unit of local government with planning authority under Chapter 160D of the General Statutes.
"(g) This section is effective when it becomes law and expires 30 days after Executive Order No. 116 is rescinded. Any development approval extended in accordance with subsection (b) of this section shall remain in effect until 150 days from the date the Executive Order is rescinded in accordance with subsection (b) of this section."
Session Laws 2020-97, s. 4.5, is a severability clause.
Effect of Amendments. - Session Laws 2020-25, s. 5(a), effective June 19, 2020, rewrote this section.
Legal Periodicals. - For article, "Out of Focus: The Fuzzy Line Between Regulatory 'Takings' and Valid Zoning-Related 'Exactions' in North Carolina and Federal Jurisprudence," see 16 Campbell L. Rev. 333 (1994).
CASE NOTES
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 153A-320.1, 153A-344.1, and 160A-385.1, and prior law.
North Carolina recognizes two methods for a landowner to establish a vested right in a zoning ordinance: (1) qualify with relevant statutes (G.S. 153A-344.1 and G.S. 160A-385.1) or (2) qualify under the common law. Browning-Ferris Indus. of S. Atl., Inc.
v. Guilford County Bd. of Adjustment, 126 N.C. App. 168, 484 S.E.2d 411 (1997).
Vested Rights Under Building Permits. - Plaintiffs acquired vested rights under G.S. 160A-385 by virtue of the issuance of building permit by town, which the North Carolina General Assembly prohibited interference with by subsequent governmental action. Browning-Ferris Indus. of S. Atl., Inc. v. Wake County, 905 F. Supp. 312 (E.D.N.C. 1995).
Vested Rights Under Common Law. - Regardless of whether G.S. 160A-385(b) and this section were applicable, under North Carolina common law, plaintiffs' rights to develop tract of land had vested where plaintiffs incurred substantial expenditures in reliance on site plan approval and the issuance of building permit by town, and plaintiffs' efforts following the site plan approval were undertaken in good faith and under reasonable reliance on the validity of the approvals they had been granted. Browning-Ferris Indus. of S. Atl., Inc. v. Wake County, 905 F. Supp. 312 (E.D.N.C. 1995).
Illustrative Cases. - Developer acquired a statutory vested right in a governmentally-approved land use plan because the public hearing notice on the adoption of that plan identified the classification of the developer's property and indicated the designation applied to it was used with a general zoning district to modify development conditions according to an approved conditional site plan. Michael Weinman Assocs. v. Town of Huntersville, 147 N.C. App. 231, 555 S.E.2d 342 (2001).
Real estate developer that purchased a subdivision from a bank with the intent to move forward with the original developer's plan for the subdivision was not required to pay newly assessed allocation fees to a sanitary district because the provisions
of 2010 N.C. Session Law ch. 177 applied to the original developer's application for service capacity allocation, and the expiration of the application was therefore tolled. Cambridge Southport, LLC v. Southeast Brunswick Sanitary
Dist., 218 N.C. App. 287, 721 S.E.2d 736 (2012).
§ 160D-108.1. Vested rights - site-specific vesting plans.
- Site-Specific Vesting Plan. - A site-specific vesting plan consists of a plan submitted to a local government in which the applicant requests vesting pursuant to this section, describing with reasonable certainty on the plan the type and intensity of use for a specific parcel or parcels of property. The plan may be in the form of, but not be limited to, any of the following plans or approvals: a planned unit development plan, a subdivision plat, a preliminary or general development plan, a special use permit, a conditional district zoning plan, or any other land-use approval designation as may be utilized by a local government. Unless otherwise expressly provided by the local government, the plan shall include the approximate boundaries of the site; significant topographical and other natural features affecting development of the site; the approximate location on the site of the proposed buildings, structures, and other improvements; the approximate dimensions, including height, of the proposed buildings and other structures; and the approximate location of all existing and proposed infrastructure on the site, including water, sewer, roads, and pedestrian walkways. What constitutes a site-specific vesting plan under this section that would trigger a vested right shall be finally determined by the local government pursuant to a development regulation, and the document that triggers the vesting shall be so identified at the time of its approval. A variance does not constitute a site-specific vesting plan, and approval of a site-specific vesting plan with the condition that a variance be obtained does not confer a vested right unless and until the necessary variance is obtained. If a sketch plan or other document fails to describe with reasonable certainty the type and intensity of use for a specified parcel or parcels of property, it may not constitute a site-specific vesting plan.
- Establishment of Vested Right. - A vested right is established with respect to any property upon the valid approval, or conditional approval, of a site-specific vesting plan as provided in this section. Such a vested right confers upon the landowner the right to undertake and complete the development and use of the property under the terms and conditions of the site-specific vesting plan, including any amendments thereto.
- Approval and Amendment of Plans. - If a site-specific vesting plan is based on an approval required by a local development regulation, the local government shall provide whatever notice and hearing is required for that underlying approval. A duration of the underlying approval that is less than two years does not affect the duration of the site-specific vesting plan established under this section. If the site-specific vesting plan is not based on such an approval, a legislative hearing with notice as required by G.S. 160D-602 shall be held.
- Continuing Review. - Following approval or conditional approval of a site-specific vesting plan, a local government may make subsequent reviews and require subsequent approvals by the local government to ensure compliance with the terms and conditions of the original approval, provided that these reviews and approvals are not inconsistent with the original approval. The local government may, pursuant to G.S. 160D-403(f), revoke the original approval for failure to comply with applicable terms and conditions of the original approval or the applicable local development regulations.
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Duration and Termination of Vested Right. -
- A vested right for a site-specific vesting plan remains vested for a period of two years. This vesting shall not be extended by any amendments or modifications to a site-specific vesting plan unless expressly provided by the local government.
- Notwithstanding the provisions of subdivision (1) of this subsection, a local government may provide for rights to be vested for a period exceeding two years but not exceeding five years where warranted in light of all relevant circumstances, including, but not limited to, the size and phasing of development, the level of investment, the need for the development, economic cycles, and market conditions or other considerations. These determinations are in the sound discretion of the local government and shall be made following the process specified for the particular form of a site-specific vesting plan involved in accordance with subsection (a) of this section.
- Upon issuance of a building permit, the provisions of G.S. 160D-1111 and G.S. 160D-1115 apply, except that a permit does not expire and shall not be revoked because of the running of time while a vested right under this section is outstanding.
- A right vested as provided in this section terminates at the end of the applicable vesting period with respect to buildings and uses for which no valid building permit applications have been filed.
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Subsequent Changes Prohibited; Exceptions. -
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A vested right, once established as provided for in this section, precludes any zoning action by a local government which would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property as set forth in an approved
site-specific vesting plan, except under one or more of the following conditions:
- With the written consent of the affected landowner.
- Upon findings, by ordinance after notice and an evidentiary hearing, that natural or man-made hazards on or in the immediate vicinity of the property, if uncorrected, would pose a serious threat to the public health, safety, and welfare if the project were to proceed as contemplated in the site-specific vesting plan.
- To the extent that the affected landowner receives compensation for all costs, expenses, and other losses incurred by the landowner, including, but not limited to, all fees paid in consideration of financing, and all architectural, planning, marketing, legal, and other consulting fees incurred after approval by the local government, together with interest as provided under G.S. 160D-106. Compensation shall not include any diminution in the value of the property which is caused by the action.
- Upon findings, by ordinance after notice and an evidentiary hearing, that the landowner or the landowner's representative intentionally supplied inaccurate information or made material misrepresentations that made a difference in the approval by the local government of the site-specific vesting plan or the phased development plan.
- Upon the enactment or promulgation of a State or federal law or regulation that precludes development as contemplated in the site-specific vesting plan or the phased development plan, in which case the local government may modify the affected provisions, upon a finding that the change in State or federal law has a fundamental effect on the plan, by ordinance after notice and an evidentiary hearing.
- The establishment of a vested right under this section does not preclude the application of overlay zoning or other development regulations which impose additional requirements but do not affect the allowable type or intensity of use, or ordinances or regulations which are general in nature and are applicable to all property subject to development regulation by a local government, including, but not limited to, building, fire, plumbing, electrical, and mechanical codes. Otherwise applicable new regulations become effective with respect to property which is subject to a site-specific vesting plan upon the expiration or termination of the vesting rights period provided for in this section.
- Notwithstanding any provision of this section, the establishment of a vested right does not preclude, change, or impair the authority of a local government to adopt and enforce development regulations governing nonconforming situations or uses.
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A vested right, once established as provided for in this section, precludes any zoning action by a local government which would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property as set forth in an approved
site-specific vesting plan, except under one or more of the following conditions:
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Miscellaneous Provisions. -
- A vested right obtained under this section is not a personal right, but attaches to and runs with the applicable property. After approval of a site-specific vesting plan, all successors to the original landowner are entitled to exercise these rights.
- Nothing in this section precludes judicial determination, based on common law principles or other statutory provisions, that a vested right exists in a particular case or that a compensable taking has occurred. Except as expressly provided in this section, nothing in this section shall be construed to alter the existing common law.
- In the event a local government fails to adopt a development regulation setting forth what constitutes a site-specific vesting plan triggering a vested right, a landowner may establish a vested right with respect to property upon the approval of a zoning permit, or otherwise may seek appropriate relief from the Superior Court Division of the General Court of Justice.
A local government may approve a site-specific vesting plan upon any terms and conditions that may reasonably be necessary to protect the public health, safety, and welfare. Conditional approval results in a vested right, although failure to abide by the terms and conditions of the approval will result in a forfeiture of vested rights. A local government shall not require a landowner to waive the landowner's vested rights as a condition of developmental approval. A site-specific vesting plan is deemed approved upon the effective date of the local government's decision approving the plan or another date determined by the governing board upon approval. An approved site-specific vesting plan and its conditions may be amended with the approval of the owner and the local government as follows: any substantial modification must be reviewed and approved in the same manner as the original approval; minor modifications may be approved by staff, if such are defined and authorized by local regulation.
History
(2020-25, ss. 5(b), 50(b).)
Editor's Note. - Session Laws 2020-25, s. 52 made this section effective June 19, 2020.
Session Laws 2020-3, s. 4.40(a)-(g), provides: "(a) Definitions. - As used in this section, the following definitions apply:
"(1) Development approval. - Any of the following approvals issued by any unit of local government, regardless of the form of the approval, that are for the development of land:
"a. Any approval of an erosion and sedimentation control plan granted by a local government under Article 4 of Chapter 113A of the General Statutes.
"b. Any building permit issued under Article 9 of Chapter 143 of the General Statutes.
"c. Any approval by a county of sketch plans, preliminary plats, plats regarding a subdivision of land, a site-specific development plan or a phased development plan, a development permit, a development agreement, or a building permit under Article 18 of Chapter 153A of the General Statutes.
"d. Any approval by a city of sketch plans, preliminary plats, plats regarding a subdivision of land, a site-specific development plan or a phased development plan, a development permit, a development agreement, or a building permit under Article 19 of Chapter 160A of the General Statutes.
"e. Any certificate of appropriateness issued by a preservation commission of a city under Part 3C of Article 19 of Chapter 160A of the General Statutes.
"(2) Development. - The division of a parcel of land into two or more parcels, the construction, reconstruction, conversion, structural alteration, relocation, or enlargement of any building or other structure or facility, or any grading, soil removal or relocation, excavation or landfill, or any use or change in the use of any building or other structure or land or extension of the use of land.
"(b) For any development approval that is current and valid at any point during the period beginning March 10, 2020, and ending April 28, 2020, the expiration date of the period of the development approval and any associated vested right under G.S. 153A-344.1 or G.S. 160A-385.1 is extended for five months.
"(c) This section shall not be construed or implemented to:
"(1) Extend any permit or approval issued by the United States or any of its agencies or instrumentalities.
"(2) Extend any permit or approval for which the term or duration of the permit or approval is specified or determined pursuant to federal law.
"(3) Shorten the duration that any development approval would have had in the absence of this section.
"(4) Prohibit the granting of such additional extensions as are provided by law.
"(5) Affect any administrative consent order issued by the Department of Environmental Quality in effect or issued at any time from the effective date of this section to September 28, 2020.
"(6) Affect the ability of a government entity to revoke or modify a development approval or to accept voluntary relinquishment of a development approval by the holder of the development approval pursuant to law.
"(7) Modify any requirement of law that is necessary to retain federal delegation by the State of the authority to implement a federal law or program.
"(8) Modify any person's obligations or impair the rights of any party under contract, including bond or other similar undertaking.
"(9) Authorize the charging of a water or wastewater tap fee that has been previously paid in full for a project subject to a development approval.
"(d) The provisions of this section shall be liberally construed to effectuate the purposes of this section.
"(e) For any development approval extended by this section, the holder of the development approval shall:
"(1) Comply with all applicable laws, regulations, and policies in effect at the time the development approval was originally issued by the governmental entity.
"(2) Maintain all performance guarantees that are imposed as a condition of the initial development approval for the duration of the period the development approval is extended or until affirmatively released from that obligation by the issuing governmental entity.
"(3) Complete any infrastructure necessary in order to obtain a certificate of occupancy or other final permit approval from the issuing governmental entity.
"(f) Failure to comply with any condition in this section may result in termination of the extension of the development approval by the issuing governmental entity. In the event of a termination of the extension of a development approval, the issuing governmental entity shall provide written notice to the last known address of the original holder of the development approval of the termination of the extension of the development approval, including the reason for the termination. Termination of an extension of a development approval shall be subject to appeal to the Board of Adjustment under the requirements set forth in law if the development approval was issued by a unit of local government with planning authority under Article 18 of Chapter 153A of the General Statutes or Article 19 of Chapter 160A of the General Statutes.
"(g) This section is effective when it becomes law and expires September 28, 2020."
Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 50(b), effective June 19, 2020, provides: "Sections 5, 10, 14, 16, 17, 18, 45, 46, 47, [which amended or enacted 160D-108, 160D-108.1, 160D-405, 160D-603, 160D-703, 160D-705, 160D-706, 160D-1402, 160D-1403.1, 160D-1403.2, respectively] and the amendments to G.S. 160D-1405(c) in Section 48 incorporate in Chapter 160D of the General Statutes the provisions of Sections 1.2, 1.3, 1.6, 1.7, 1.8, 1.9, 1.10, 1.12, 1.13, 1.14, 1.15, and 1.17 of S.L. 2019-111 [which amended or enacted former 160A-360.1, 153A-320.1, 160A-385, 160A-385.1, 153A-344, 153A-344.1, 160A-388, 160A-393.1, 160A-364.1, 160A-393, 160A-393.2, 160A-381, 153A-340, 160A-382, 153A-342, 153A-346, and 160A-390, respectively], clarify and restate the intent of existing law, and apply to ordinances adopted before, on, and after the effective date of this act."
Session Laws 2020-97, s. 3.21(a)-(g), as amended by Session Laws 2021-3, s. 2.21(a), provides: '(a) Definitions. - As used in this section, the following definitions apply:
"(1) Development approval. - Any of the following approvals issued by any unit of local government, regardless of the form of the approval, that are for the development of land:
"a. Any approval of an erosion and sedimentation control plan granted by a local government under Article 4 of Chapter 113A of the General Statutes.
"b. Any building permit issued under Article 9 of Chapter 143 of the General Statutes.
"c. Any approval by a county of sketch plans, preliminary plats, plats regarding a subdivision of land, a site-specific development plan or a phased development plan, a development permit, a development agreement, or a building permit under Chapter 160D of the General Statutes.
"d. Any approval by a city of sketch plans, preliminary plats, plats regarding a subdivision of land, a site-specific development plan or a phased development plan, a development permit, a development agreement, or a building permit under Chapter 160D of the General Statutes.
"e. Any certificate of appropriateness issued by a preservation commission of a city under Chapter 160D of the General Statutes.
"(2) Development. - The division of a parcel of land into two or more parcels; the construction, reconstruction, conversion, structural alteration, relocation, or enlargement of any building or other structure or facility; or any grading, soil removal or relocation, excavation or landfill, or any use or change in the use of any building or other structure or land or extension of the use of land.
"(b) For any development approval that is current and valid at any point during the period beginning September 2, 2020, and ending 30 days after Executive Order No. 116 is rescinded, the expiration date of the period of the development approval and any associated vested right under G.S. 160D-108 or G.S. 160D-108.1 is automatically extended 150 days from the date the Executive Order is rescinded.
"(c) This section shall not be construed or implemented to:
"(1) Extend any permit or approval issued by the United States or any of its agencies or instrumentalities.
"(2) Extend any permit or approval for which the term or duration of the permit or approval is specified or determined pursuant to federal law.
"(3) Shorten the duration that any development approval would have had in the absence of this section.
"(4) Prohibit the granting of such additional extensions as are provided by law.
"(5) Affect any administrative consent order issued by the Department of Environmental Quality in effect or issued at any time from the effective date of this section to 30 days after Executive Order No. 116 is rescinded.
"(6) Affect the ability of a government entity to revoke or modify a development approval or to accept voluntary relinquishment of a development approval by the holder of the development approval pursuant to law.
"(7) Modify any requirement of law that is necessary to retain federal delegation by the State of the authority to implement a federal law or program.
"(8) Modify any person's obligations or impair the rights of any party under contract, including bond or other similar undertaking.
"(9) Authorize the charging of a water or wastewater tap fee that has been previously paid in full for a project subject to a development approval.
"(d) The provisions of this section shall be liberally construed to effectuate the purposes of this section.
"(e) For any development approval extended by this section, the holder of the development approval shall:
"(1) Comply with all applicable laws, regulations, and policies in effect at the time the development approval was originally issued by the governmental entity.
"(2) Maintain all performance guarantees that are imposed as a condition of the initial development approval for the duration of the period the development approval is extended or until affirmatively released from that obligation by the issuing governmental entity.
"(3) Complete any infrastructure necessary in order to obtain a certificate of occupancy or other final permit approval from the issuing governmental entity.
"(f) Failure to comply with any condition in this section may result in termination of the extension of the development approval by the issuing governmental entity. In the event of a termination of the extension of a development approval, the issuing governmental entity shall provide written notice to the last known address of the original holder of the development approval of the termination of the extension of the development approval, including the reason for the termination. Termination of an extension of a development approval shall be subject to appeal to the Board of Adjustment under the requirements set forth in law if the development approval was issued by a unit of local government with planning authority under Chapter 160D of the General Statutes.
"(g) This section is effective when it becomes law and expires 30 days after Executive Order No. 116 is rescinded. Any development approval extended in accordance with subsection (b) of this section shall remain in effect until 150 days from the date the Executive Order is rescinded in accordance with subsection (b) of this section."
Session Laws 2020-97, s. 4.5, is a severability clause.
§ 160D-109. Conflicts of interest.
- Governing Board. - A governing board member shall not vote on any legislative decision regarding a development regulation adopted pursuant to this Chapter where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member. A governing board member shall not vote on any zoning amendment if the landowner of the property subject to a rezoning petition or the applicant for a text amendment is a person with whom the member has a close familial, business, or other associational relationship.
- Appointed Boards. - Members of appointed boards shall not vote on any advisory or legislative decision regarding a development regulation adopted pursuant to this Chapter where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member. An appointed board member shall not vote on any zoning amendment if the landowner of the property subject to a rezoning petition or the applicant for a text amendment is a person with whom the member has a close familial, business, or other associational relationship.
- Administrative Staff. - No staff member shall make a final decision on an administrative decision required by this Chapter if the outcome of that decision would have a direct, substantial, and readily identifiable financial impact on the staff member or if the applicant or other person subject to that decision is a person with whom the staff member has a close familial, business, or other associational relationship. If a staff member has a conflict of interest under this section, the decision shall be assigned to the supervisor of the staff person or such other staff person as may be designated by the development regulation or other ordinance.
- Quasi-Judicial Decisions. - A member of any board exercising quasi-judicial functions pursuant to this Chapter shall not participate in or vote on any quasi-judicial matter in a manner that would violate affected persons' constitutional rights to an impartial decision maker. Impermissible violations of due process include, but are not limited to, a member having a fixed opinion prior to hearing the matter that is not susceptible to change, undisclosed ex parte communications, a close familial, business, or other associational relationship with an affected person, or a financial interest in the outcome of the matter.
- Resolution of Objection. - If an objection is raised to a board member's participation at or prior to the hearing or vote on a particular matter and that member does not recuse himself or herself, the remaining members of the board shall by majority vote rule on the objection.
- Familial Relationship. - For purposes of this section, a "close familial relationship" means a spouse, parent, child, brother, sister, grandparent, or grandchild. The term includes the step, half, and in-law relationships.
No staff member shall be financially interested or employed by a business that is financially interested in a development subject to regulation under this Chapter unless the staff member is the owner of the land or building involved. No staff member or other individual or an employee of a company contracting with a local government to provide staff support shall engage in any work that is inconsistent with his or her duties or with the interest of the local government, as determined by the local government.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-110. Chapter construction.
- G.S. 153A-4 and G.S. 160A-4 are applicable to this Chapter.
- "Written" or "in writing" is deemed to include electronic documentation.
- Unless specified otherwise, in the absence of evidence to the contrary, delivery by first-class mail shall be deemed received on the third business day following deposit of the item for mailing with the United States Postal Service, and delivery by electronic mail shall be deemed received on the date sent.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-111. Effect on prior laws.
- The enactment of this Chapter does not require the readoption of any local government ordinance enacted pursuant to laws that were in effect before June 19, 2020 and are restated or revised herein. The provisions of this Chapter do not affect any act heretofore done, any liability incurred, any right accrued or vested, or any suit or prosecution begun or cause of action accrued as of June 19, 2020. The enactment of this Chapter does not amend the geographic area within which local government development regulations adopted prior to June 19, 2020, are effective.
- G.S. 153A-3 and G.S. 160A-3 are applicable to this Chapter. Nothing in this Chapter repeals or amends a charter or local act in effect as of June 19, 2020 unless this Chapter or a subsequent enactment of the General Assembly clearly shows a legislative intent to repeal or supersede that charter or local act.
- Whenever a reference is made in another section of the General Statutes or any local act, or any local government ordinance, resolution, or order, to a portion of Article 19 of Chapter 160A of the General Statutes or Article 18 of Chapter 153A of the General Statutes that is repealed or superseded by this Chapter, the reference is deemed amended to refer to that portion of this Chapter that most nearly corresponds to the repealed or superseded portion of Article 19 of Chapter 160A or Article 18 of Chapter 153A of the General Statutes.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 6, 51(a)-(d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Session Laws 2020-25, s. 51(c), provides: "The Revisor of Statutes is authorized to substitute the effective date of this act for 'January 1, 2021' throughout Chapter 160D of the General Statutes." Pursuant to this authority, the Revisor of Statutes substituted "June 19, 2020” for "January 1, 2021” in this section.
Effect of Amendments. - Session Laws 2020-25, s. 6, effective June 19, 2020, substituted "January 1, 2021" for "January 1, 2019" in subsection (a); and made minor stylistic changes throughout the section.
ARTICLE 2. Planning and Development Regulation Jurisdiction.
Sec.
§ 160D-201. Planning and development regulation jurisdiction.
- Cities. - All of the powers granted by this Chapter may be exercised by any city within its corporate limits and within any extraterritorial area established pursuant to G.S. 160D-202.
- Counties. - All of the powers granted by this Chapter may be exercised by any county throughout the county except in areas subject to municipal planning and development regulation jurisdiction.
- Partial Jurisdiction Regulation in Cities and Counties. - If a city elects to adopt zoning or subdivision regulations, each must be applied to the city's entire planning and development regulation jurisdiction. If a county elects to adopt zoning or subdivision regulations, each may be applied to all or part of the county's planning and development regulation jurisdiction. A local government's planning and development regulation jurisdiction does not include an area in which it has ceded jurisdiction pursuant to an agreement under G.S. 160D-203.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 7, 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 7, effective June 19, 2020, in subsection (a), substituted "Cities" for "Municipalities" in the heading and substituted "G.S. 160D-202" for "this Article"; and added subsection (c).
Legal Periodicals. - For article, "Out of Focus: The Fuzzy Line Between Regulatory 'Takings' and Valid Zoning-Related 'Exactions' in North Carolina and Federal Jurisprudence," see 16 Campbell L. Rev. 333 (1994).
For article, "Searching Everywhere for a Section 24(1)(A) Standard: City of Asheville, Town of Boone, and the Unclear Future of Local-State Relations in North Carolina," see 96 N.C.L. Rev. 1882 (2018).
CASE NOTES
I. IN GENERAL.
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 153A-320, former G.S. 160A-360, and prior law.
II. DECISIONS UNDER FORMER G.S. 153A-320.
Editor's Note. - The following cases were decided under former G.S. 153A-320 and prior law.
A county sign ordinance did not violate the equal protection clause of U.S. Const., Amend. XIV or N.C. Const., Art. I,
§
19, because the county would not enforce the ordinance with respect to any person owning or operating a sign in certain municipalities within the county since the county could not exercise zoning authority within
a city which had enacted a zoning ordinance and it could defer from zoning within cities. County of Cumberland v. Eastern Fed. Corp., 48 N.C. App. 518, 269 S.E.2d 672, cert. denied, 301 N.C. 527,
273 S.E.2d 453 (1980).
Procedures of Article 18 Did Not Apply to County Sign Ordinance - The enactment of the Sign Control Ordinance of Transylvania County, North Carolina, was a valid exercise of the general police power of Transylvania County, North Carolina, under G.S. 153A-121,
and, therefore, Transylvania County did not have to follow the enactment procedures of ch. 153A, art. 18 in enacting the ordinance. Transylvania County v. Moody, 151 N.C. App. 389, 565 S.E.2d 720 (2002).
A county may not exercise jurisdiction over any part of a city located within its borders. Davidson County v. City of High Point, 321 N.C. 252, 362 S.E.2d 553 (1987).
Statutes do not give a county authority over provision of sewer services within a city, or over newly annexed areas of the city which also lie in the county. Davidson County v. City of High Point, 321 N.C. 252,
362 S.E.2d 553 (1987).
Use of City-Owned Sewage Treatment Plant Without Prior Approval of County. - Since county had no authority to restrict or regulate city's provision of sewer service to its residents, the city could use city-owned sewage treatment plant located outside
the city but within the county, which was upgraded pursuant to the county's special use permit, with a condition attached to the permit requiring the county's prior approval of service to county citizens, to meet its statutory
mandate to provide sewer service to residents in newly annexed areas without seeking the county's prior approval, even though the facility was located in the county. Davidson County v. City of High Point,
321 N.C. 252, 362 S.E.2d 553 (1987).
III. DECISIONS UNDER FORMER G.S. 160A-360.
Editor's Note. - The following cases were decided under former G.S. 160A-360 and prior law.
The obvious purpose of the statutory mandate in subsection (b) requiring that boundaries be defined in terms of geographical features identifiable on the ground is that boundaries be defined, to the extent feasible, so that owners of property outside
the city can easily and accurately ascertain whether their property is within the area over which the city exercises its extraterritorial zoning authority. Sellers v. City of Asheville, 33 N.C. App. 544, 236 S.E.2d 283 (1977).
Interpretation. - Appellate court erred in affirming the trial court's entry of summary judgment in favor of a town in its action against a county to adopt a resolution authorizing its extraterritorial jurisdiction (ETJ) expansion because there was no
irreconcilable conflict between the subsections of the subject statute, and while the statute, as amended in 1999, allowed the town to extend its ETJ up to two miles beyond its corporate limits, the town was prohibited from
doing so into the subject area since the county had adopted and was enforcing a zoning ordinance and subdivision regulations, was enforcing the State Building Code, and did not approve the requested resolution. Town of Pinebluff
v. Moore Cty., 374 N.C. 254, 839 S.E.2d 833 (2020).
Standing to Contest Annexation Scheme of Neighboring Town. - Section 160A-31 describes a voluntary annexation undertaken at the request of land owners and does not authorize suit by neighboring municipalities; only if another town owned property in the
annexed area, or if both towns were simultaneously attempting to annex controverted property, could there be a justiciable controversy, giving one town standing to contest the annexation by the other, and, even then, this section
provides a way to resolve such a conflict. Town of Ayden v. Town of Winterville, 143 N.C. App. 136, 544 S.E.2d 821 (2001).
Standing to Contest City's Attempt to Exercise Extraterritorial Jurisdiction. - Trial court properly dismissed the claims brought by a county and the county commissioners in their official capacities challenging a city's attempt to exercise extraterritorial
jurisdiction because the county had stated no legal or factual basis for its claim that its tax base and planning jurisdiction would be affected by the city exercising extraterritorial jurisdiction, and the commissioners acknowledged
that they were not the real parties in interest; thus, neither the county nor the commissioners were the real parties in interest. Macon County v. Town of Highlands, 187 N.C. App. 752, 654 S.E.2d 17 (2007).
County Lacked Discretion to Disapprove Requests Regarding Exercise of Extraterritorial Jurisdiction. - G.S 160A-360(f), as modified by 1999 N.C. Sess. Laws 35, is clear: Moore County does not retain the discretion to disapprove of Pinebluff's requests
to exercise its extraterritorial jurisdiction within the two-mile limit authorized by the alteration to G.S. 160A-360(a); G.S. 160A-360(f), as modified, provides that Pinebluff can exercise extraterritorial jurisdiction within
two miles of its corporate limits, as allowed by G.S. 160A-360(a), even if Moore County is exercising the powers in G.S. 160A-360(e). Town of Pinebluff v. Moore Cty., 374 N.C. 254,
839 S.E.2d 833 (2020).
A county may not exercise jurisdiction over any part of a city located within its borders. Davidson County v. City of High Point, 321 N.C. 252, 362 S.E.2d 553 (1987).
Statutes do not give a county authority over provision of sewer services within a city, or over newly annexed areas of the city which also lie in the county. Davidson County v. City of High Point, 321 N.C. 252,
362 S.E.2d 553 (1987).
Use of City-Owned Sewage Treatment Plant Without Prior Approval of County. - Since county had no authority to restrict or regulate city's provision of sewer service to its residents, the city could use city-owned sewage treatment plant located outside
the city but within the county, which was upgraded pursuant to the county's special use permit, with a condition attached to the permit requiring the county's prior approval of service to county citizens, to meet its statutory
mandate to provide sewer service to residents in newly annexed areas without seeking the county's prior approval, even though the facility was located in the county. Davidson County v. City of High Point,
321 N.C. 252, 362 S.E.2d 553 (1987).
Town Not Exempt from Description Requirements. - By enacting Session Laws 1973, c. 131, which provided that Town of Lake Waccamaw "may exercise the powers set forth" in this section, et seq. within one mile of the town limits and within 2,000 feet of
Lake Waccamaw's high water mark, the legislature did not exercise extraterritorial jurisdiction on behalf of Lake Waccamaw, but merely permitted it to be done. Therefore, the Town of Lake Waccamaw was not exempted thereby from
the description requirements of subsection (b) of this section. Town of Lake Waccamaw v. Savage, 86 N.C. App. 211, 356 S.E.2d 810, cert. denied, 320 N.C. 797,
361 S.E.2d 89 (1987).
County Zoning Ordinance Did Not Preclude Town's Extension. - Town was not precluded from extending its extraterritorial jurisdiction pursuant to G.S. 160A-360(e) because an earlier county ordinance did not extend zoning into the proposed area under G.S.
153A-344(a), and a subsequent county zoning ordinance was enacted arbitrarily and capriciously under G.S. 153A-340(a) and G.S. 153A-341. Town of Green Level v. Alamance County, 184 N.C. App. 665, 646 S.E.2d 851, review denied, 361 N.C. 704, 655 S.E.2d 402 (2007).
Definition of Boundaries Held Not to Comply with Subsection (b). - Extraterritorial jurisdiction ordinance exacted by town, which defined extraterritorial boundaries by reference to a map showing the boundaries drawn in sweeping curves around town limits
and lake, did not comply with the description requirements of subsection (b) of this section. Town of Lake Waccamaw v. Savage, 86 N.C. App. 211, 356 S.E.2d 810, cert.
denied, 320 N.C. 797, 361 S.E.2d 89 (1987).
Definiteness in Boundary Descriptions Not Met. - The boundaries of a city's proposed extraterritorial zone failed to meet the degree of definiteness mandated by subsection (b) where the only description merely referred to "the territory beyond the corporate
limits for a distance of one mile in all directions" and the map showed the "mile boundary" drawn in sweeping curves. Sellers v. City of Asheville, 33 N.C. App. 544,
236 S.E.2d 283 (1977).
Failure to Record Descriptions Not Fatal. - The city substantially complied with this section although it failed to timely record the map or written description of the ordinance in which it exercised extraterritorial jurisdiction; therefore, the plaintiff-store
owner was barred from attacking the validity of the ordinance based on procedural grounds by the statute of limitations provided in G.S. 160A-364.1. Potter v. City of Hamlet, 141 N.C. App. 714, 541 S.E.2d 233, cert. denied, 355 N.C. 379, 547 S.E.2d 814 (2001).
Adult Business Ordinance Held Vague. - Because a county's adult business ordinance was ambiguous as to whether it applied to businesses outside a city's business limits or only to businesses outside the city's extraterritorial jurisdiction, it was interpreted
as applying only to the latter. State v. Baggett, 133 N.C. App. 47, 514 S.E.2d 536 (1999).
Zoning Ordinance Held Void. - Plaintiff town did not satisfy requirements of this section and G.S. 160A-364 where its notice of a public hearing failed to apprise defendants, or any other property owners within the affected area, of the nature and character
of proposed actions to exert extra-territorial jurisdiction, failed to describe in any way the area in question, and failed to comport with the clear requirements of G.S. 160A-364 in that it was not published in two successive
calendar weeks, and where, furthermore, plaintiff's ordinance was adopted in a proceeding held over eight months subsequent to its initial hearing, and without either further public hearing or notice, and plaintiff never recorded
a boundary description as required by subsection (b) of this section; therefore, the court correctly ruled plaintiff's extraterritorial zoning ordinance void and ineffective as against defendants. Town of Swansboro v. Odum,
96 N.C. App. 115, 384 S.E.2d 302 (1989).
§ 160D-202. Municipal extraterritorial jurisdiction.
- Geographic Scope. - Any city may exercise the powers granted to cities under this Chapter within a defined area extending not more than one mile beyond its contiguous corporate limits. In addition, a city of 10,000 or more population but less than 25,000 may exercise these powers over an area extending not more than two miles beyond its limits and a city of 25,000 or more population may exercise these powers over an area extending not more than three miles beyond its limits. In determining the population of a city for the purposes of this Chapter, the city council and the board of county commissioners may use the most recent annual estimate of population as certified by the Secretary of the North Carolina Department of Administration. Pursuant to G.S. 160A-58.4, extraterritorial municipal planning and development regulation may be extended only from the primary corporate boundary of a city and not from the boundary of satellite areas of the city.
- Authority in the Extraterritorial Area. - A city may not exercise any power conferred by this Chapter in its extraterritorial jurisdiction that it is not exercising within its corporate limits. A city may exercise in its extraterritorial area all powers conferred by this Chapter that it is exercising within its corporate limits. If a city fails to extend a particular type of development regulation to the extraterritorial area, the county may elect to exercise that particular type of regulation in the extraterritorial area.
- County Approval of City Jurisdiction. - Notwithstanding subsection (a) of this section, no city may extend its extraterritorial powers into any area for which the county has adopted and is enforcing county zoning and subdivision regulations. However, the city may do so where the county is not exercising both of these powers, or when the city and the county have agreed upon the area within which each will exercise the powers conferred by this Chapter. No city may extend its extraterritorial powers beyond one mile from its corporate limits without the approval of the board or boards of county commissioners with jurisdiction over the area.
- Notice of Proposed Jurisdiction Change. - Any municipality proposing to exercise extraterritorial jurisdiction under this Chapter shall notify the owners of all parcels of land proposed for addition to the area of extraterritorial jurisdiction, as shown on the county tax records. The notice shall be sent by first-class mail to the last addresses listed for affected property owners in the county tax records. The notice shall inform the landowner of the effect of the extension of extraterritorial jurisdiction, of the landowner's right to participate in a legislative hearing prior to adoption of any ordinance extending the area of extraterritorial jurisdiction, as provided in G.S. 160D-601, and of the right of all residents of the area to apply to the board of county commissioners to serve as a representative on the planning board and the board of adjustment, as provided in G.S. 160D-303. The notice shall be mailed at least 30 days prior to the date of the hearing. The person or persons mailing the notices shall certify to the city council that the notices were sent by first-class mail, and the certificate shall be deemed conclusive in the absence of fraud.
- Boundaries. - Any council exercising extraterritorial jurisdiction under this Chapter shall adopt an ordinance specifying the areas to be included based upon existing or projected urban development and areas of critical concern to the city, as evidenced by officially adopted plans for its development. A single jurisdictional boundary shall be applicable for all powers conferred in this Chapter. Boundaries shall be defined, to the extent feasible, in terms of geographical features identifiable on the ground. Boundaries may follow parcel ownership boundaries. A council may, in its discretion, exclude from its extraterritorial jurisdiction areas lying in another county, areas separated from the city by barriers to urban growth, or areas whose projected development will have minimal impact on the city. The boundaries specified in the ordinance shall at all times be drawn on a map, set forth in a written description, or shown by a combination of these techniques. This delineation shall be maintained in the manner provided in G.S. 160A-22 for the delineation of the corporate limits and shall be recorded in the office of the register of deeds of each county in which any portion of the area lies.
- County Authority Within City Jurisdiction. - The county may, on request of the city council, exercise any or all of these powers in any or all areas lying within the city's corporate limits or within the city's specified area of extraterritorial jurisdiction.
- Transfer of Jurisdiction. - When a city annexes, or a new city is incorporated in, or a city extends its jurisdiction to include, an area that is currently being regulated by the county, the county development regulations and powers of enforcement shall remain in effect until (i) the city has adopted such development regulations or (ii) a period of 60 days has elapsed following the annexation, extension, or incorporation, whichever is sooner. Prior to the transfer of jurisdiction, the city may hold hearings and take any other measures consistent with G.S. 160D-204 that may be required in order to adopt and apply its development regulations for the area at the same time it assumes jurisdiction.
- Relinquishment of Jurisdiction. - When a city relinquishes jurisdiction over an area that it is regulating under this Chapter to a county, the city development regulations and powers of enforcement shall remain in effect until (i) the county has adopted such development regulation or (ii) a period of 60 days has elapsed following the action by which the city relinquished jurisdiction, whichever is sooner. Prior to the transfer of jurisdiction, the county may hold hearings and take other measures consistent with G.S. 160D-204 that may be required in order to adopt and apply its development regulations for the area at the same time it assumes jurisdiction.
- Process for Local Government Approval. - When a local government is granted powers by this section subject to the request, approval, or agreement of another local government, the request, approval, or agreement shall be evidenced by a formally adopted resolution of the governing board of the local government. Any such request, approval, or agreement can be rescinded upon two years' written notice to the other governing boards concerned by repealing the resolution. The resolution may be modified at any time by mutual agreement of the governing boards concerned.
- Local Acts. - Nothing in this section shall repeal, modify, or amend any local act that defines the boundaries of a city's extraterritorial jurisdiction by metes and bounds or courses and distances.
- Effect on Vested Rights. - Whenever a city or county, pursuant to this section, acquires jurisdiction over a territory that theretofore has been subject to the jurisdiction of another local government, any person who has acquired vested rights in the surrendering jurisdiction may exercise those rights as if no change of jurisdiction had occurred. The city or county acquiring jurisdiction may take any action regarding such a development approval, certificate, or other evidence of compliance that could have been taken by the local government surrendering jurisdiction pursuant to its development regulations. Except as provided in this subsection, any building, structure, or other land use in a territory over which a city or county has acquired jurisdiction is subject to the development regulations of the city or county.
Where the extraterritorial jurisdiction of two or more cities overlaps, the jurisdictional boundary between them shall be a line connecting the midway points of the overlapping area unless the city councils agree to another boundary line within the overlapping area based upon existing or projected patterns of development.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-203. Split jurisdiction.
If a parcel of land lies within the planning and development regulation jurisdiction of more than one local government, for the purposes of this Chapter, the local governments may, by mutual agreement pursuant to Article 20 of
Chapter 160A of the General Statutes and with the written consent of the landowner, assign exclusive planning and development regulation jurisdiction
under this Chapter for the entire parcel to any one of those local governments. Such a mutual agreement shall only be applicable to development regulations and shall not affect taxation or other nonregulatory matters. The mutual agreement
shall be evidenced by a resolution formally adopted by each governing board and recorded with the register of deeds in the county where the property is located within 14 days of the adoption of the last required resolution.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-204. Pending jurisdiction.
After consideration of a change in local government jurisdiction has been formally proposed, the local government that is potentially receiving jurisdiction may receive and process proposals to adopt development regulations and any application for development approvals that would be required in that local government if the jurisdiction is changed. No final decisions shall be made on any development approval prior to the actual transfer of jurisdiction. Acceptance of jurisdiction, adoption of development regulations, and decisions on development approvals may be made concurrently and may have a common effective date.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
ARTICLE 3. Boards and Organizational Arrangements.
Sec.
§ 160D-301. Planning boards.
-
Composition. - A local government may by ordinance provide for the appointment and compensation of a planning board or may designate one or more boards or commissions to perform the duties of a planning board. A planning board established pursuant to
this section may include, but shall not be limited to, one or more of the following:
- A planning board of any size or composition deemed appropriate, organized in any manner deemed appropriate; provided, however, the board shall have at least three members.
- A joint planning board created by two or more local governments pursuant to Part 1 of Article 20 of Chapter 160A of the General Statutes.
-
Duties. - A planning board may be assigned the following powers and duties:
- To prepare, review, maintain, monitor, and periodically update and recommend to the governing board a comprehensive plan, and such other plans as deemed appropriate, and conduct ongoing related research, data collection, mapping, and analysis.
- To facilitate and coordinate citizen engagement and participation in the planning process.
- To develop and recommend policies, ordinances, development regulations, administrative procedures, and other means for carrying out plans in a coordinated and efficient manner.
- To advise the governing board concerning the implementation of plans, including, but not limited to, review and comment on all zoning text and map amendments as required by G.S. 160D-604.
- To exercise any functions in the administration and enforcement of various means for carrying out plans that the governing board may direct.
- To provide a preliminary forum for review of quasi-judicial decisions, provided that no part of the forum or recommendation may be used as a basis for the deciding board.
- To perform any other related duties that the governing board may direct.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Legal Periodicals. - For comment, "Planned Unit Development and North Carolina Enabling Legislation," see 51 N.C.L. Rev. 1455 (1973).
For article discussing North Carolina special exception and zoning amendment cases, see 53 N.C.L. Rev. 925 (1975).
For note on historic district zoning, see 16 Wake Forest L. Rev. 495 (1980).
For article, "Moving Toward the Bargaining Table: Contract Zoning, Development Agreements, and the Theoretical Foundations of Government Land Use Deals," see 65 N.C.L. Rev. 957 (1987).
CASE NOTES
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 153A-321, 153A-344, 160A-361, 160A-387, and prior law.
The planning board (zoning commission) has no legislative, judicial or quasi-judicial power. Its recommendations do not restrict or otherwise affect the legislative power of the legislative body, i.e., the city council. Allred v. City of Raleigh,
277 N.C. 530, 178 S.E.2d 432 (1971), decided under former G.S. 160-22 and 160-177.
The municipality must designate a planning agency to develop and certify a zoning ordinance. George v. Town of Edenton, 31 N.C. App. 648, 230 S.E.2d 695 (1976), rev'd on other grounds, 294 N.C. 679,
242 S.E.2d 877 (1978).
Planning Agency Has No Legislative, Judicial or Quasi-Judicial Power. - A municipal planning and zoning commission has no legislative, judicial or quasi-judicial power, and the city council acts in the exercise of its legislative function in determining whether the commission's recommendations in regard to the enactment of zoning ordinances should be followed. In re Markham, 259 N.C. 566, 131 S.E.2d 329, cert. denied, 375 U.S. 931, 84 S. Ct. 332, 11 L. Ed. 2d 263 (1963).
The planning board (zoning commission) has no legislative, judicial or quasi-judicial power. Its recommendations do not restrict or otherwise affect the legislative power of the city council. Allred v. City of Raleigh, 277 N.C. 530,
178 S.E.2d 432 (1971).
Planning Agency Functions Only in an Advisory Capacity. - The planning agency is not a legislative body. In relation to the town council, it functions only in an advisory capacity, and its recommendations are in no way binding on the council. George v.
Town of Edenton, 31 N.C. App. 648, 230 S.E.2d 695 (1976), rev'd on other grounds, 294 N.C. 679, 242 S.E.2d 877 (1978).
This section does not expressly restrict its application to a municipality's initial adoption of a comprehensive zoning ordinance. Such certification may also be required for subsequent comprehensive revisions of an ordinance, as distinguished from acts
by which ordinances are amended, supplemented or changed. George v. Town of Edenton, 294 N.C. 679, 242 S.E.2d 877 (1978).
Amendment to county zoning ordinance constituted a valid legislative prerogative to change the sanitary landfill use from a "special use permit" category to a "use by right under prescribed conditions" category and that section of the county zoning ordinance,
which allowed the county zoning administrator to approve the county's permit application for the siting of a landfill, was constitutional and lawful on its face. County of Lancaster v. Mecklenburg County,
334 N.C. 496, 434 S.E.2d 604 (1993).
When Enactment or Amendment Is Invalid. - The legislative act of enacting or amending a zoning ordinance is invalid if it is unreasonable, arbitrary, or an unequal exercise of legislative power. Chrismon v. Guilford County,
85 N.C. App. 211, 354 S.E.2d 309 (1987), rev'd on other grounds, 322 N.C. 611, 370 S.E.2d 579 (1988); Alderman v. Chatham County, 89 N.C. App. 610, 366 S.E.2d 885, cert. denied, 323 N.C. 171, 373 S.E.2d 103 (1988).
County Zoning Ordinance Did Not Preclude Town's Extension. - Pursuant to G.S. 160A-360(e) because an earlier county ordinance did not extend zoning into the proposed area under G.S. 153A-344(a); the county ordinance was not sufficiently detailed, nor
did the county maintain or control a required map. Town of Green Level v. Alamance County, 184 N.C. App. 665, 646 S.E.2d 851, review denied, 361 N.C. 704,
655 S.E.2d 402 (2007).
Amendment Held Not Applicable to Defendants. - Where the uncontradicted forecast of evidence established as a matter of law that defendants made substantial expenditures for the operation of a quarry on the property in question in good faith and in reliance
upon the special use permit previously granted by the Zoning Board, a later amendment by the Zoning Board precluding operation of a quarry on such property would not apply to defendants. Cardwell v. Smith,
106 N.C. App. 187, 415 S.E.2d 770, cert. denied, 332 N.C. 146, 419 S.E.2d 569 (1992).
The manifest intention of the General Assembly was that a public hearing be conducted at which those who opposed and those who favored adoption of an ordinance would have a fair opportunity to present their respective views. Orange County v. Heath,
278 N.C. 688, 180 S.E.2d 810 (1971), decided under former law.
The requirement that a public hearing be conducted is mandatory. Orange County v. Heath, 278 N.C. 688, 180 S.E.2d 810 (1971), decided under former law.
Building Permits. - Plaintiffs had a valid building permit because their appeal of the order that prevented them from building tolled the statutory time period in which plaintiffs could resume construction under their office building permit; however,
the building permit only authorized the construction of an office building it did not establish a statutory vested right to mine the property. Sandy Mush Props. v. Rutherford County, 181 N.C. App. 224, 638 S.E.2d 557 (2007), petition allowed as to additional issues, 361 N.C. 569, 689 S.E.2d 874, 2007 N.C. LEXIS 958 (2007).
Spot Zoning. - Because it zones a small area differently than a much larger area surrounding it, spot zoning, by definition, conflicts with the whole purpose of planned zoning. Therefore, unless there is a clear showing of a reasonable basis, spot zoning
is beyond the authority of the county or municipality. Chrismon v. Guilford County, 85 N.C. App. 211, 354 S.E.2d 309 (1987), rev'd on other grounds, 322 N.C. 611,
370 S.E.2d 579 (1988), cert. denied, 323 N.C. 171, 373 S.E.2d 103 (1988).
Spot zoning is not invalid per se, but rather, it is beyond the authority of the municipality or county and therefore void only in the absence of a clear showing of a reasonable basis therefor. Chrismon v. Guilford County,
322 N.C. 611, 370 S.E.2d 579 (1988).
Clear Showing of Reasonable Basis for Spot Zoning. - While the rezoning of two tracts from A-1 to CU-M-2, so as to allow the storage and sale of agricultural chemicals, constituted a form of spot zoning, this activity was legal and not illegal spot zoning.
Because of the substantial benefits created for the surrounding community by the rezoning and because of the close relationship between the likely uses of the rezoned property and the uses already present in the surrounding tracts,
there was a clear showing of a reasonable basis for the spot zoning. Chrismon v. Guilford County, 322 N.C. 611, 370 S.E.2d 579 (1988).
Rezoning. - It is not necessary that property rezoned to a conditional use district be available for all of the uses allowed under the corresponding general use district. Chrismon v. Guilford County, 322 N.C. 611, 370 S.E.2d 579 (1988).
Rezoning lacks a permissible basis where it is done on consideration of assurances that a particular tract or parcel will be developed in accordance with restricted approval plans. Chrismon v. Guilford County, 85 N.C. App. 211, 354 S.E.2d 309 (1987), rev'd on other grounds, 322 N.C. 611, 370 S.E.2d 579 (1988).
Rezoning Held Valid Conditional Use Zoning. - The rezoning of two tracts of land from A-1 to CU-M-2 so as to allow the storage and sale of agricultural chemicals was valid conditional use zoning and not illegal contract zoning. Chrismon v. Guilford County, 322 N.C. 611, 370 S.E.2d 579 (1988).
As the board of commissioners' enactment of a rezoning ordinance was a legislative act reviewable under the "whole record" test, the trial court erred in considering evidence outside the record of the rezoning process. Kerik v. Davidson County,
145 N.C. App. 222, 551 S.E.2d 186 (2001).
Changes in Zoning Classifications Held Invalid. - Changes in zoning classification were never considered by the Planning Board but were instead handled by the planning staff, which meant that the approved 404 changes in zoning violated G.S. 153A-344;
this violation, among other violations, provided a basis for declaring the Buncombe County, N.C. Amended Zoning Ordinance invalid. The language of G.S. 153A-344 was mandatory, not discretionary. Thrash Ltd. P'ship v. County of
Buncombe, 195 N.C. App. 678, 673 S.E.2d 706 (2009).
Opinions of Attorney General
Editor's Note. - The opinion below was rendered under former G.S. 153A-321, or prior law.
Member of County Planning Board Serves at Will of Commissioners. - See opinion of Attorney General to Mr. William C. Reeves, Madison County Attorney, 41 N.C.A.G. 230 (1971).
§ 160D-302. Boards of adjustment.
- Composition. - A local government may by ordinance provide for the appointment and compensation of a board of adjustment consisting of five or more members, each to be appointed for three-year terms. In appointing the original members or in the filling of vacancies caused by the expiration of the terms of existing members, the governing board may appoint certain members for less than three years so that the terms of all members shall not expire at the same time. The governing board may appoint and provide compensation for alternate members to serve on the board in the absence or temporary disqualification of any regular member or to fill a vacancy pending appointment of a member. Alternate members shall be appointed for the same term, at the same time, and in the same manner as regular members. Each alternate member serving on behalf of any regular member has all the powers and duties of a regular member.
- Duties. - The board shall hear and decide all matters upon which it is required to pass under any statute or development regulation adopted under this Chapter. The ordinance may designate a planning board or governing board to perform any of the duties of a board of adjustment in addition to its other duties and may create and designate specialized boards to hear technical appeals. If any board other than the board of adjustment is assigned decision-making authority for any quasi-judicial matter, that board shall comply with all of the procedures and the process applicable to a board of adjustment in making quasi-judicial decisions.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Legal Periodicals. - For article on power of zoning board of adjustment to grant variances from zoning ordinance, see 29 N.C.L. Rev. 245 (1951).
For comment, "Planned Unit Development and North Carolina Enabling Legislation," see 51 N.C.L. Rev. 1455 (1973).
For article discussing North Carolina special exception and zoning amendment cases, see 53 N.C.L. Rev. 925 (1975).
For article, "A Powerless Judiciary? The North Carolina Courts' Perceptions of Review of Administrative Action," see 12 N.C. Cent. L.J. 21 (1980).
For note on historic district zoning, see 16 Wake Forest L. Rev. 495 (1980).
CASE NOTES
I. IN GENERAL.
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 153A-345.1, former G.S. 160A-388, and prior law.
Construction of Section. - The purpose of this section is to provide a right of review, and statutes providing for review of administrative decisions should be liberally construed to preserve and effectuate that right. Mize v. County of Mecklenburg, 80 N.C. App. 279, 341 S.E.2d 767 (1986) (decided under former G.S. 153A-345).
N.C. R. App. P. 10(b) did not apply to an appeal by certiorari to the superior court from a hearing before a county zoning board of adjustment because the North Carolina Rules of Appellate Procedure were inapplicable as there was no direct right of appeal
from the board of adjustment to the appellate division; the board of adjustment was not a trial tribunal as defined by N.C. R. App. P. 1(c), and appeals from the board of adjustment were to the superior court, by certiorari
pursuant to G.S. 153A-345(e) (now repealed). Cook v. Union County Zoning Bd. of Adjustment, 185 N.C. App. 582, 649 S.E.2d 458 (2007) (decided under former G.S. 153A-345).
Construction with Other Laws. - In the context of an appeal from the grant of a special use permit, G.S. 160A-388(e) is a substantially parallel statute to G.S. 153A-345(e) (repealed - see now G.S. 153A-345.1 and this section). Sarda v. City/ Durham Bd.
of Adjustment, 156 N.C. App. 213, 575 S.E.2d 829 (2003).
Standing. - Appellate court had jurisdiction to review a conditional use permit's denial after the applicant withdrew the application because (1) site owners had standing and continued to seek the permit, and (2) the denial was a reviewable final judgment.
Dellinger v. Lincoln Cty., 266 N.C. App. 275, 832 S.E.2d 172 (2019).
Authority of Town's Board of Commissioners. - A town's board of commissioners authority to organize city government pursuant to G.S. 160A-146 includes the power to abolish a board of adjustment, appointed and created pursuant to this section, and to thereafter
create a new board of adjustment and make appointments thereto. Board of Adjustment v. Town of Swansboro, 334 N.C. 421, 432 S.E.2d 310, rehearing denied, 335 N.C. 182,
436 S.E.2d 369 (1993).
Power of Board to Impose Civil Penalties. - Since the Board possesses all powers of the enforcement officer for non-compliance, the trial court did not err in finding that the Board had authority to impose civil penalties. JWL Invs., Inc. v. Guilford
County Bd. of Adjustment, 133 N.C. App. 426, 515 S.E.2d 715 (1999) (decided under former G.S. 153A-345).
Finality of Board's Decisions. - The decisions of the board are final, subject to the right of the courts to review errors in law and to give relief against its orders which are arbitrary, oppressive or attended with manifest abuse of authority. Jackson v. Guilford County Bd. of Adjustment, 2 N.C. App. 408, 163 S.E.2d 265 (1968), aff'd, 275 N.C. 155, 166 S.E.2d 78 (1969) (decided under former G.S. 153A-345).
Decisions of the board of adjustment are final, subject to the right of courts on certiorari to review errors in law and to give relief against its orders which are arbitrary, oppressive or attended with manifest abuse of authority. County of Durham v.
Addison, 262 N.C. 280, 136 S.E.2d 600 (1964) (decided under former G.S. 153A-345).
Conclusive Effect of Board's Findings. - Upon review by a superior court upon writ of certiorari issued pursuant to subsection (e) of this section, the findings of fact made by the board, if supported by evidence introduced at the hearing before the board,
are conclusive. Godfrey v. Zoning Bd. of Adjustment, 317 N.C. 51, 344 S.E.2d 272 (1986) (decided under former G.S. 153A-345).
Enforcement of Zoning Ordinances. - Section 153A-123 and this section give the superior court the power to enforce zoning ordinances through the issuance of an injunction. Mize v. County of Mecklenburg, 80 N.C. App. 279, 341 S.E.2d 767 (1986) (decided under former G.S. 153A-345).
County Board of Adjustment Rightly Applied Local Notice Provision. - Section 1A-1-6 did not apply in a case where the language of a local ordinance was clear and unambiguous in its requirement that a minimum ten-day "notice of public hearing" be given
and further stated how that ten days should be calculated. Richardson v. Union County Bd. of Adjustment, 136 N.C. App. 134, 523 S.E.2d 432 (1999) (decided under former
G.S. 153A-345).
Zoning Administrator's Duties Regarding Appeals. - Zoning administrator was bound to transmit petitioner's appeal to the county board of adjustment and whether petitioner had standing fell within the province of the board, and thus mandamus relief was
proper; the statute does not establish any exception or other circumstances in which the officer may decline to transmit the appropriate materials, and thus it was mandatory that the administrator immediately transmit the appeal
to the board, as the statute was not intended to permit zoning officers to block appeals from their own zoning determinations. Morningstar Marinas/Eaton Ferry, LLC v. Warren Cnty., 368 N.C. 360,
777 S.E.2d 733 (2015).
Appellate Jurisdiction of Board. - Subsection (b) of this section clearly confers on the board only appellate jurisdiction, as distinguished from original jurisdiction, to decide whether a particular use is permitted under the zoning ordinance. Tate v. Board of Adjustment, 83 N.C. App. 512, 350 S.E.2d 873 (1986).
Absent any indication that city zoning enforcement officials had made a decision whether petitioners' use of pool on their property in conjunction with child care center was permitted or not, the board of adjustment lacked jurisdiction to decide such question. Tate v. Board of Adjustment, 83 N.C. App. 512, 350 S.E.2d 873 (1986).
Town board of adjustment did not have jurisdiction to review and reverse the decision of the town board of commissioners. Garrity v. Morrisville Zoning Bd. of Adjustment, 115 N.C. App. 273, 444 S.E.2d 653, cert. denied, 337 N.C. 692, 448 S.E.2d 523 (1994).
In reviewing the determination of an administrative enforcement officer that a sawmill on residential property violated a city ordinance, city's board of adjustment only had the authority to reverse, affirm, or modify the officer's determination that the owner's use of the sawmill violated the zoning ordinance, and the board did not have the authority to rule on the owner's constitutional challenges to the validity of the zoning ordinance itself. Dobo v. Zoning Bd. of Adjustment, 149 N.C. App. 701, 562 S.E.2d 108 (2002), rev'd on other grounds, 356 N.C. 656, 576 S.E.2d 324, 2003 N.C. LEXIS 34 (2003).
City zoning board of adjustment had jurisdiction to hear an appeal taken from the municipal tax collector's denial of a business privilege license application based upon his assessment that the business was in violation of local zoning laws. Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 162 N.C. App. 603, 592 S.E.2d 205, cert. denied, 358 N.C. 543, 599 S.E.2d 43 (2004).
If a zoning administrator denies a zoning certificate on the grounds that a project does not conform to zoning ordinance setback requirements, that decision can be appealed to the Board of Adjustment. Under G.S. 160A-388(b), the Board of Adjustment has
the authority to issue a variance and allow a nonconforming project to continue. Meares v. Town of Beaufort, 193 N.C. App. 49, 667 S.E.2d 244 (2008).
Amelioration of General Zoning Regulations Intended. - The plain intent and purpose of former G.S. 160-178 was to permit, through the board of adjustment, the amelioration of the rigors of necessarily general zoning regulations by eliminating the necessity
for a slavish adherence to the precise letter of the regulations where, in a given case, little or no good on the one side and undue hardship on the other would result from a literal enforcement. Lee v. Board of Adjustment,
226 N.C. 107, 37 S.E.2d 128 (1946).
Planning and zoning commission is separate and distinct from the board of adjustment. In re Markham, 259 N.C. 566, 131 S.E.2d 329, cert. denied, 375 U.S. 931, 84 S. Ct. 332, 11 L. Ed. 2d 263 (1963).
The board is not a law-making body and has no power to amend a zoning ordinance either to permit the construction of a building prohibited by ordinance or to prohibit the construction of one permitted by ordinance. In re Rea Constr. Co.,
272 N.C. 715, 158 S.E.2d 887 (1968).
No legislative authority in board of adjustment. - Former G.S. 160-172 and 160-178 did not grant board of adjustment legislative authority, and therefore, board was without power to amend an ordinance under which it functioned. Lee v. Board of Adjustment,
226 N.C. 107, 37 S.E.2d 128 (1946).
The legislative body may not delegate to the municipal board of adjustment the power to zone. Keiger v. Winston-Salem Bd. of Adjustment, 278 N.C. 17, 178 S.E.2d 616 (1971).
It would constitute an unlawful delegation of the legislative power vested by the General Assembly in a board of aldermen to allow the board of adjustment to deny a special permit on the ground that the board of adjustment did not consider a use specified
in the ordinance as a conditional permissible use to be in accord with the "purpose and intent" of the ordinance. Keiger v. Winston-Salem Bd. of Adjustment, 278 N.C. 17,
178 S.E.2d 616 (1971).
In exercising discretion, board of adjustment must abide by the rules provided by the local ordinance enacted in accord with and by permission of the State zoning law. Jackson v. Guilford County Bd. of Adjustment, 2 N.C. App. 408, 163 S.E.2d 265 (1968), aff'd, 275 N.C. 155, 166 S.E.2d 78 (1969).
Rule which demands that a board of adjustment consistently follow its procedural rules is equally applicable to a case involving a variance; therefore, where the board of adjustment rules then applicable stated that an application for rehearing "shall
be denied by the board if in its judgment there has been no substantial change in the facts, evidence or conditions in the case," the board violated its own procedural rules when it agreed to rehear application for a variance,
since it was clear that there had been no change in the "facts, evidence or conditions in the case." Kirby v. Board of Adjustment, 95 N.C. App. 182, 381 S.E.2d 889, cert.
denied, 325 N.C. 707, 388 S.E.2d 458 (1989).
Reduction of Terms. - If a board of adjustment is created, then it must consist of at least five appointees, each with three-year terms. Such terms may not be reduced by the city council as long as the board of adjustment is in existence. However, the
prohibition against the reduction of the length of the terms of the members of an existing board of adjustment does not diminish the authority of the city council to abolish the board. Board of Adjustment v. Town of Swansboro,
108 N.C. App. 198, 423 S.E.2d 498 (1992), aff'd, 334 N.C. 421, 432 S.E.2d 310, reh'g denied, 335 N.C. 182, 436 S.E.2d 369 (1993).
Quasi-Judicial Capacity of Board. - A board of adjustment is an administrative agency which acts in a quasi-judicial capacity. In re Rea Constr. Co., 272 N.C. 715, 158 S.E.2d 887 (1968); Jackson v. Guilford County Bd. of Adjustment, 2 N.C. App. 408, 163 S.E.2d 265 (1968), aff'd, 275 N.C. 155, 166 S.E.2d 78 (1969).
The board of adjustment is clothed, if not with judicial, at least with quasi-judicial power; it being its duty to investigate facts and from its investigation to draw conclusions as a basis of official action, and to exercise discretion of a judicial nature. Harden v. City of Raleigh, 192 N.C. 395, 135 S.E. 151 (1926); In re Markham, 259 N.C. 566, 131 S.E.2d 329, cert. denied, 375 U.S. 931, 84 S. Ct. 332, 11 L. Ed. 2d 263 (1963); Jackson v. Guilford County Bd. of Adjustment, 2 N.C. App. 408, 163 S.E.2d 265 (1968), aff'd, 275 N.C. 155, 166 S.E.2d 78 (1969).
A board of adjustment has a quasi-judicial power under subsection (d) of this section to vary or modify zoning regulations only so long as the spirit of the ordinance continues to be observed. Sherrill v. Town of Wrightsville Beach,
76 N.C. App. 646, 334 S.E.2d 103 (1985).
Delegation of Authority to Determine Facts and Draw Conclusions. - The legislature may delegate to the board of adjustment, as a quasi-judicial body, the authority to determine facts and therefrom to draw conclusions as a basis of its official action.
Jackson v. Guilford County Bd. of Adjustment, 2 N.C. App. 408, 163 S.E.2d 265 (1968), aff'd, 275 N.C. 155, 166 S.E.2d 78 (1969).
The principal function of a board of adjustment is to issue variance permits so as to prevent injustice by a strict application of the ordinance. In re Rea Constr. Co., 272 N.C. 715, 158 S.E.2d
887 (1968).
Board of adjustment cannot permit type of business or building prohibited by zoning ordinance, for to do so would be an amendment of law and not a variance of its regulations. Lee v. Board of Adjustment, 226 N.C. 107,
37 S.E.2d 128 (1946).
Board of Adjustment Can Merely "Vary" Regulations. - The board of adjustment cannot disregard the provisions of the enabling act or regulations enacted in accordance with zoning law, but can merely "vary" them to prevent injustice when the strict letter
of the provisions would work "unnecessary hardship." Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128 (1946); In re Markham, 259 N.C. 566,
131 S.E.2d 329, cert. denied, 375 U.S. 931, 84 S. Ct. 332, 11 L. Ed. 2d 263 (1963).
Issuance of Special Permit on Making of Specified Findings Not Unlawful Exercise of Power. - Where a municipal ordinance required the board of adjustment to issue a special use permit when it made certain affirmative findings specified in the ordinance,
the board's determination of whether to issue a special use permit was not an unlawful exercise of legislative power. Kenan v. Board of Adjustment, 13 N.C. App. 688,
187 S.E.2d 496, cert. denied, 281 N.C. 314, 188 S.E.2d 897 (1972).
Standing to Challenge Zoning Ordinance. - A corporation which did not have any legal interest in property affected by a zoning ordinance did not have standing to challenge that zoning ordinance when only twelve of its 114 members the members/shareholders had standing as individuals to challenge the zoning ordinance. Northeast Concerned Citizens, Inc. v. City of Hickory, 143 N.C. App. 272, 545 S.E.2d 768 (2001).
Where an owner was granted a special use permit to operate a paintball playing field on the owner's property, the adjoining neighbors lacked standing to appeal the grant of the permit, as their mere averment that they owned land in the immediate vicinity
of the subject property, absent an allegation of special damages distinct from the rest of the community, was insufficient to confer standing upon them. Sarda v. City/ Durham Bd. of Adjustment,
156 N.C. App. 213, 575 S.E.2d 829 (2003).
Zoning ordinances may be challenged by individuals in an action for declaratory judgment or a writ of certiorari under G.S. 160A-388(e); individuals have standing under either if they have a specific legal interest that is directly and uniquely affected
by the zoning ordinance (an aggrieved party under G.S. 160A-388(e)). State Emples. Ass'n of N.C. Inc. v. State, 154 N.C. App. 207, 573 S.E.2d 525 (2002).
No Ground for Equitable Relief Absent Invasion of Property Rights or Lack of Other Adequate Remedy. - There is no ground for equitable relief against zoning where there has been no invasion of property rights, or where there is an adequate remedy at law,
as by certiorari or mandamus, or by pursuit of a statutory remedy. Michael v. Guilford County, 269 N.C. 515, 153 S.E.2d 106 (1967) (decided under former G.S. 153A-345).
"Unnecessary hardship" does not mean a pecuniary loss to a single owner in being denied a building permit for a nonconforming structure pursuant to zoning regulations binding upon all alike. Lee v. Board of Adjustment,
226 N.C. 107, 37 S.E.2d 128 (1946).
Depreciation of Complainant's Property Does Not Invalidate Ordinance. - The mere fact that a zoning ordinance seriously depreciates the value of complainant's property is not enough, standing alone, to establish its invalidity. Michael v. Guilford County,
269 N.C. 515, 153 S.E.2d 106 (1967) (decided under former G.S. 153A-345).
Special Exception Defined. - A special exception, within the meaning of a zoning ordinance, is one which is expressly permitted in a given zone upon proof that certain facts and conditions detailed in the ordinance exist. It is granted by the board, after
a public hearing, upon a finding that the specified conditions have been satisfied. In re Ellis, 277 N.C. 419, 178 S.E.2d 77 (1970) (decided under former G.S. 153A-345).
A "special exception" within the meaning of a zoning ordinance is one which is expressly permitted in a given zone upon proof that certain facts and conditions detailed in the ordinance exist. It is granted by the board of adjustment, after a public hearing,
upon a finding that the specified conditions have been satisfied. Keiger v. Winston-Salem Bd. of Adjustment, 278 N.C. 17, 178 S.E.2d 616 (1971).
A special permit is not a legal right but is a concession in exceptional cases which the board, in the exercise of its discretion, may grant, subject to court review. Craver v. Zoning Bd. of Adjustment, 267 N.C. 40,
147 S.E.2d 599 (1966).
Nonconforming building or use that conflicts with general purpose or spirit of zoning ordinance can only be authorized by the board of aldermen acting in their legislative capacity to rezone, not under the guise of a variance permit. Sherrill v. Town
of Wrightsville Beach, 76 N.C. App. 646, 334 S.E.2d 103 (1985).
No Authority to Permit Duplexes by Variance in R-1 Area. - As the purpose of an R-1 designation is to limit density, while the purpose and effect of a duplex is to increase density, variance requested by petitioners, who sought to build duplexes in R-1
areas, was directly contrary to the zoning ordinance; in these circumstances the board of adjustment had no legal authority under subsection (d) of this section to grant the requested variance, and thus there was no need for
it to make findings on the merits of the request. Sherrill v. Town of Wrightsville Beach, 76 N.C. App. 646, 334 S.E.2d 103 (1985).
Safeguards against arbitrary action by zoning boards in granting or denying special use permits are not only to be found in specific guidelines for their action. Equally important are the requirements that in each instance the board (1) follow the procedures
specified in the ordinance; (2) conduct its hearings in accordance with fair-trial standards; (3) base its findings of fact only upon competent, material, and substantial evidence; and (4) in allowing or denying the application,
state the basic facts on which it relied with sufficient specificity to inform the parties, as well as the court, what induced its decision. Humble Oil & Ref. Co. v. Board of Aldermen,
284 N.C. 458, 202 S.E.2d 129 (1974).
Board's Findings May Not Be Based on Unsworn Statements. - Absent stipulations or waiver, a board of adjustment may not base critical findings of fact as to the existence or nonexistence of a nonconforming use on unsworn statements. Jarrell v. Board of Adjustment, 258 N.C. 476, 128 S.E.2d 879 (1963).
Where one asserts a legal right to a nonconforming use, whether he has such legal right depends upon factual findings, and in the determination of such factual findings unsworn statements may not be considered either competent or substantial. Jarrell
v. Board of Adjustment, 258 N.C. 476, 128 S.E.2d 879 (1963).
Waiver of Right to Insist That Witnesses Be Under Oath. - By voluntary participation in a hearing, a party may waive the right to insist that the witnesses should be under oath. Craver v. Zoning Bd. of Adjustment, 267 N.C. 40,
147 S.E.2d 599 (1966).
Action of Board Held Not Res Judicata upon Second Application. - Approval by the board of adjustment of denial of a permit to erect a filling station on certain land did not constitute res judicata upon a second application made therefor three years after
the first application, upon substantial change of the traffic conditions. In re Broughton's Estate, 210 N.C. 62, 185 S.E. 434 (1936).
The general administrative agencies review statutes are applicable to municipal agencies such as zoning boards. Humble Oil & Ref. Co. v. Board of Aldermen, 284 N.C. 458, 202 S.E.2d 129 (1974).
As to similarity of zoning provisions relating to municipalities and counties under former law, see Jackson v. Guilford County Bd. of Adjustment, 2 N.C. App. 408, 163 S.E.2d 265 (1968), aff'd,
275 N.C. 155, 166 S.E.2d 78 (1969).
As to invalidity of ordinances prescribing procedure for enforcement of zoning regulations in conflict with former statutory provisions, see Mitchell v. Barfield, 232 N.C. 325, 59 S.E.2d 810 (1950).
Where plaintiff was not the owner of any of the property that was the subject of an inspection decision such building inspector's decisions did not affect a property interest belonging to plaintiff as defined by state law and summary judgment against
plaintiff was proper. Gentile v. Town of Kure Beach, 91 N.C. App. 236, 371 S.E.2d 302 (1988).
Petitioner Not Barred by Ordinance Time Requirements or Laches. - Petitioner was not barred by ordinance time requirements from challenging interpretation relating to kitchen, adult day-care, and offices, nor was he barred by laches. Laches will only
work as a bar when the claimant knew of the existence of the grounds for the claim. There was no showing that petitioner knew of grounds for appeal before letter of August 10, 1989. Allen v. City of Burlington Bd. of Adjustment,
100 N.C. App. 615, 397 S.E.2d 657 (1990).
Constructive Notice Barred Challenge to Operation of Homeless Shelter. - Petitioner conceded that he had constructive notice of an interpretation allowing homeless shelter, since it has been in operation since 1986, and was barred from challenging the
operation of the shelter as it currently stood. This time bar also applied to subsequent planned expansion of the shelter. Allen v. City of Burlington Bd. of Adjustment, 100 N.C. App. 615, 397 S.E.2d 657 (1990).
Cemetery was not estopped from asserting that no special use permit was required for the construction and installation of facilities for above-ground burial since such facilities were not an unlawful extension of its nonconforming use of its cemetery
property. Stegall v. Zoning Bd. of Adjustment, 87 N.C. App. 359, 361 S.E.2d 309 (1987), cert. denied, 321 N.C. 480, 364 S.E.2d 671 (1988)
(decided under former G.S. 153A-345).
Above-Ground Burial Facilities Held Legal Extension of Cemetery's Nonconforming Use of Cemetery Property. - Where the Zoning Ordinance provides for the continuation of pre-existing nonconforming uses of property, a cemetery construction of above-ground
burial facilities relates to the process by which the nonconforming activity is conducted and does not amount to a change in the nature and kind of use to which the property was devoted. Stegall v. Zoning Bd. of Adjustment,
87 N.C. App. 359, 361 S.E.2d 309 (1987), cert. denied, 321 N.C. 480, 364 S.E.2d 671 (1988) (decided under former G.S. 153A-345).
Right to a special exception permit cannot be made to hinge upon whether the board considers proposed structure beneficial or harmful to the community. Such power would subject the board to the pressures of individuals or groups who, for an infinite variety
of reasons, might oppose the permit, and enable it to make a different rule of law in every case. Statute empowering the commissioners to authorize the board of adjustment to permit special exceptions in the classes of cases
or situations and in accordance with the principles, conditions, safeguards, and procedures specified in the ordinance does not purport to confer such unbridled discretion upon it. In re Ellis,
277 N.C. 419, 178 S.E.2d 77 (1970) (decided under former G.S. 153A-345).
Provision of a county ordinance requiring board of adjustment to deny a permit if it found the granting of it would adversely affect the public interest was in excess of the authority which the statute permitted to be so conferred upon the board. Jackson
v. Guilford County Bd. of Adjustment, 275 N.C. 155, 166 S.E.2d 78 (1969) (decided under former G.S. 153A-345).
Issuance of Special Permit Upheld - Application which a developer submitted, seeking a special use permit allowing construction of an apartment complex on land that was zoned for residential and agricultural use was not defective because it was signed
by the developer, but not by people who owned the land, and the trial court found that the board's decision granting the special use permit was supported by the record. Cox v. Hancock, 160 N.C. App. 473, 586 S.E.2d 500 (2003).
Right to Impartial Hearing Denied. - Site owners seeking a conditional use permit were denied the due process right to an impartial hearing because (1) a member of the board of county commissioners considering the application had previously actively opposed
the application, contributed money to that effort, openly communicated that opposition to others, and presented biased evidence in opposition, (2) the member refused to recuse, and (3) substantial evidence did not rebut the
member's prima facie bias. Dellinger v. Lincoln Cty., 266 N.C. App. 275, 832 S.E.2d 172 (2019).
Denial of Cell Tower Permit Unsupported by Substantial Evidence. - City council's denial of a special use permit to build a cell tower on the grounds that the tower would endanger the public health or safety and not be in harmony with the surrounding
area was reversed because the applicant presented competent, material, and substantial evidence establishing the facts and conditions which the ordinance required for the issuance of the permit, and the denial was based on
the residents' speculative opinions, unsupported by any documentary or testimonial evidence. Blair Invs., LLC v. Roanoke Rapids City Council, 231 N.C. App. 318, 752 S.E.2d
524 (2013).
Interpretation of an Ordinance by a Board of Adjustment. - Board of adjustment erred in prohibiting an outdoor advertising company from relocating a sign, to accommodate a state highway project, because the board's interpretation of the word "work" in
a sign ordinance constituted an error of law as the term "work" had a broader meaning than mere visible evidence of construction. The company took multiple steps to lawfully relocate its sign within the six month period prescribed
in its sign permit as the company, during the six month period following the issuance of the sign permit, communicated with a state agency about removing the sign, started renegotiating a lease, and secured a building permit.
Morris Communs. Corp. v. City of Bessemer, 365 N.C. 152, 712 S.E.2d 868 (2011).
Board Of Adjustment Had Authority to Grant Variance. - Trial court erred in finding that a board of adjustment had no authority to grant a variance for petitioners' sign because the sign was not contrary to Matthews, N.C. Zoning Code
§
153.140(A); section 153.140(A) was intended to protect the general appearance of commercial properties and prevent hazards and nuisances, and the ordinance was also intended to provide means for adequate and effective
signage, prevent driver confusion, and allow for flexibility to meet individual needs for business identification, which was the very problems of which petitioners complain. Premier Plastic Surgery Ctr., PLLC v. Bd. of Adjustment
for Matthews, 213 N.C. App. 364, 713 S.E.2d 511 (2011).
Board's Action Upheld. - Petitioners failed to show that Board of Adjustment acted arbitrarily or capriciously in combining standards for granting a special use permit to a broadcasting company. Richardson v. Union County Bd. of Adjustment, 136 N.C. App. 134, 523 S.E.2d 432 (1999) (decided under former G.S. 153A-345).
Superior court, pursuant to G.S. 153A-345(e) (now repealed), properly affirmed a county board of adjustment's approval of a special use permit to allow a park owner to build and operate a go-cart track because (1) the board properly placed the burden
of proof on the park owner to prove that the health and safety requirements of the county's special use permit ordinance were met; and (2) the findings of fact and conclusions of law were supported by competent, material, and
substantial evidence in the record as a whole, based on the testimony of a civil engineer as to sound levels and the sound test results from an engineering firm. Harding v. Bd. of Adjustment,
170 N.C. App. 392, 612 S.E.2d 431 (2005) (decided under former G.S. 153A-345).
Board's Action Vacated. - Superior court properly vacated a special use permit issued by a county zoning board of adjustment because the county and the abutting landowners were denied due process by the board's failure to comply with hearing procedures
as set forth in a county zoning ordinance. Cook v. Union County Zoning Bd. of Adjustment, 185 N.C. App. 582, 649 S.E.2d 458 (2007) (decided under former G.S. 153A-345).
County Zoning Board Exceeded Its Delegated Authority. - County zoning board exceeded its authority when it voided a mine operator's special use exception permit after finding violations, then treated the mine operator's current permit application as one
for a new permit and applied the standard under a new ordinance; instead of voiding the original permit, which was issued in 1997, the board should have considered the application in light of the standards in effect prior to
October of 2000, the date of the new ordinance, and had the board done so, it should have found that the mine operator met the burden when the mine operator produced a current permit from the Department of Environment, Health,
and Natural Resources, Division of Land Resources for the activities contemplated and the 1997 ordinance had no other, more stringent conditions specified. Hewett v. County of Brunswick, 155 N.C. App. 138, 573 S.E.2d 688 (2002) (decided under former G.S. 153A-345).
Voluntary dismissal rule does not apply to a petition for a writ of certiorari; therefore, property owners were not allowed to refile their petition that was seeking review of a decision from a board of adjustment within a year because this was not timely.
Not all of the North Carolina Rules of Civil Procedure applied to certiorari proceedings. Henderson v. Cnty. of Onslow, 245 N.C. App. 151, 782 S.E.2d 57 (2016).
II. JUDICIAL REVIEW.
Editor's Note. - The following cases were decided under former G.S. 160A-388 and prior law.
Constitutional Sufficiency of Review. - City tax collector's zoning decision to deny a business privilege license application was immediately appealable to the city zoning board of adjustment, and the board's decision could be reviewed in superior court
upon the filing of a petition for certiorari; the judicial relief provided in G.S. 160A-388 was constitutionally sufficient because the license applicant was afforded the possibility of sufficiently prompt judicial review.
Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 162 N.C. App. 603, 592 S.E.2d 205, cert. denied, 358 N.C. 543, 599 S.E.2d 43 (2004).
Time for Filing Petition for Review. - The language of this section requires only that any petition seeking review by the superior court be filed with the clerk of superior court within 30 days after the decision of the board is filed or after a written
copy has been delivered to every aggrieved party. Mize v. County of Mecklenburg, 80 N.C. App. 279, 341 S.E.2d 767 (1986) (decided under former G.S. 153A-345).
Time for Petition for Certiorari. - Subsection (e) of this section clearly gives petitioners 30 days after the letter of delivery of the board's decision to petitioners or the filing of the decision with the office specified in the ordinance within which
to petition for certiorari. Ad/Mor v. Town of Southern Pines, 88 N.C. App. 400, 363 S.E.2d 220 (1988).
Appeal Held Not Taken Within Reasonable Time. - Where Board of Adjustment failed to prescribe any time within which an appeal had to be taken from a zoning compliance officer, a notice of appeal, consisting of a letter from an attorney representing adjacent
landowners, filed 322 days after the officer issued the certificate of zoning compliance, was not taken within a reasonable time. See Teen Challenge Training Center, Inc. v. Board of Adjustment,
90 N.C. App. 452, 368 S.E.2d 661 (1988) (decided under former G.S. 153A-345).
Decisions of the board of adjustment are final, subject to the right of the courts to review errors in law and to give relief against orders which are arbitrary, oppressive, or attended with manifest abuse of authority. Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128 (1946); County of Durham v. Addison, 262 N.C. 280, 136 S.E.2d 600 (1964).
Quasi-judicial functions, when exercised, not arbitrarily, but in subordination to a uniform rule prescribed by statute, ordinarily are not subject to judicial control. It is only in extreme cases, those which are arbitrary, oppressive, or attended with
manifest abuse, that the courts will interfere. Harden v. City of Raleigh, 192 N.C. 395, 135 S.E. 151 (1926). See also, Rosenthal v. City of Goldsboro, 149 N.C. 128,
62 S.E. 905 (1908).
When the decision was filed in the appropriate office is a question of fact, the resolution of which is essential to determine whether petitioners are entitled to judicial review. Ad/Mor v. Town of Southern Pines, 88 N.C. App. 400, 363 S.E.2d 220 (1988).
Exhaustion of Remedies. - In a case concerning restrictive covenants, because a side setback requirement was an issue directly related to the issuance of a zoning permit, an appeal should have first been filed with a board of adjustment in order to exhaust
administrative remedies. Having failed to exhaust administrative remedies, a trial court was without subject matter jurisdiction to rule on a request for a writ of mandamus. Sanford v. Williams,
221 N.C. App. 107, 727 S.E.2d 362 (2012).
Interpretation of Local Ordinance. - Board of Adjustment did not misinterpret City of Salisbury, N.C. Land Development Ordinance, § 13.3(C) by concluding that an applicant's proposed modifications to its asphalt plant would expand or enlarge the applicant's non-conforming use of the property based on a finding that the proposed modifications would expand the capacity of the plant to recycle asphalt because a reduction in the plant's materials costs was irrelevant to the Board's conclusion that the modifications would expand or enlarge the applicant's non-conforming use; applicant cited no legal authority in support of its assertion as required by N.C. R. App. P. 28(b)(6). APAC-Atlantic, Inc. v. City of Salisbury, 210 N.C. App. 668, 709 S.E.2d 390 (2011).
Superior court erred in affirming a county board of adjustment's order because the board improperly concluded that a property owner was in violation of an ordinance; the board improperly concluded that under the amended ordinance, a change in ownership constituted a change in use and that the owner was required to amend its zoning permit to legally continue the same use of the property because the change of ownership had no impact on the use of the property. Starlites Tech Corp. v. Rockingham Cty., - N.C. App. - , 840 S.E.2d 231 (2020).
Property owner's challenge to a county board of adjustment's interpretation of an ordinance warranted reversal of the board's ultimate decision because the interpretation constituted an error of law. Starlites Tech Corp. v. Rockingham Cty., - N.C. App. - , 840 S.E.2d 231 (2020).
Writ permitted to obtain review of the decision of a board of adjustment is a writ to bring the matter before the court upon the evidence presented by the record itself for review of alleged errors of law. Jackson v. Guilford County Bd. of Adjustment,
2 N.C. App. 408, 163 S.E.2d 265 (1968), aff'd, 275 N.C. 155, 166 S.E.2d 78 (1969) (decided under former G.S. 153A-345).
Deficient Record on Appeal. - Property owner's appeal of a trial court's judgment upholding the decision of a board of adjustment finding that a limitation on a prior agreement allowing access to a developer's adjacent parcel across the owner's land was
void for lack of board approval was dismissed because it could not be determined from the record on appeal if a zoning ordinance in effect when the development plan in issue was approved was superseded by a subsequent zoning
ordinance, so the record was deficient, under N.C. R. App. P. 9(a)(2)(e), as the record did not contain all items properly before the trial court that were necessary to decide the errors assigned. CRLP Durham, LP v. Durham
City/County Bd. of Adjustment, 210 N.C. App. 203, 706 S.E.2d 317 (2011).
Record Was Adequate. - Record a city provided to the trial court did not deprive homeowners of their right to due process because the record adequately conveyed the substance of the homeowners' missing audio testimony; the record included a copy of the
homeowners' appeal, which appeal included inter an affidavit from one of them, and the homeowners did not specifically identify any other competent or substantial evidence that could be missing and that would have prevented
the trial court from reviewing their claim. Fehrenbacher v. City of Durham, 239 N.C. App. 141, 768 S.E.2d 186 (2015).
Abandonment Of Issue. - Petitioners abandoned their claim that the trial court erred by applying the wrong standard when reviewing the decision of a board of adjustment because they failed to provide any reason or argument in support of their assertion
pursuant to N.C. R. App. P. 28(b)(6). Premier Plastic Surgery Ctr., PLLC v. Bd. of Adjustment for Matthews, 213 N.C. App. 364, 713 S.E.2d 511 (2011).
Scope of Judicial Review. - The task of a court reviewing a decision made by a town board sitting as a quasi-judicial body on an application for a conditional use permit includes: (1) reviewing the record for errors in law; (2) insuring that procedures specified by law in both statute and ordinance are followed; (3) insuring that appropriate due process rights of a petitioner are protected, including the right to offer evidence, to cross-examine witnesses, and to inspect documents; (4) insuring that the decision of the town board is supported by competent, material and substantial evidence in the whole record; and (5) insuring that the decision is not arbitrary and capricious. Both the superior court and the appellate courts are bound by all the standards of review noted above. Coastal Ready-Mix Concrete Co. v. Board of Comm'rs, 299 N.C. 620, 265 S.E.2d 379, rehearing denied, 300 N.C. 562, 270 S.E.2d 106 (1980).
The scope of review under subsection (e) of this section is: (1) Reviewing the record for errors in law; (2) insuring that procedures specified by law in both statute and ordinance are followed; (3) insuring that appropriate due process rights of a petitioner are protected, including the right to offer evidence, cross-examine witnesses and inspect documents; (4) insuring that the decisions of zoning boards are supported by competent, material and substantial evidence in the whole record; and (5) insuring that decisions are not arbitrary and capricious. Mize v. County of Mecklenburg, 80 N.C. App. 279, 341 S.E.2d 767 (1986) (decided under former G.S. 153A-345).
It is not the function of the reviewing court, upon writ of certiorari under subsection (e) of this section, to find the facts, but to determine whether the findings of fact made by the board are supported by the evidence before the board. It may vacate an order based upon a finding of fact not supported by the evidence. Godfrey v. Zoning Bd. of Adjustment, 317 N.C. 51, 344 S.E.2d 272 (1986) (decided under former G.S. 153A-345).
The matter is before the court upon writ of certiorari under subsection (e) of this section to determine whether an error of law has been committed and to give relief from an order of the board which is found to be arbitrary, oppressive or attended with manifest abuse of authority. Godfrey v. Zoning Bd. of Adjustment, 317 N.C. 51, 344 S.E.2d 272 (1986) (decided under former G.S. 153A-345).
In reviewing zoning decisions, the superior court is not the trier of fact; it sits in the posture of an appellate court. There is no necessity for, or entitlement to, a jury trial. Mize v. County of Mecklenburg, 80 N.C. App. 279, 341 S.E.2d 767 (1986) (decided under former G.S. 153A-345).
On review of zoning board decision, it was incumbent on the trial court to insure that the board's decision was not contrary to State law and was authorized by local ordinance; and if the ABC Commission had rendered a statutorily authorized decision contrary
to the board's decision to deny petitioner's special exception permit request, then it was necessary for the trial court to consider the question of whether the board's decision was contrary to State law. Melkonian v. Board
of Adjustment, 85 N.C. App. 351, 355 S.E.2d 503, cert. denied and appeal dismissed, 320 N.C. 631, 360 S.E.2d 91 (1987).
Improper Standard of Review Applied. - Board's determination that a company's facility did not constitute a vocational school was proper given that the facility did not teach a skill or trade, but instead provided training to existing members of a profession
to refine their skills, and because the zoning ordinance failed to specifically prohibit the use of land as a firing range, it was allowed as a use by right pursuant to the ordinance; the trial court improperly applied de novo
review and erred by reversing the board's conclusion that the facility did not fall within the classification of a vocational school. Fort v. County of Cumberland, 235 N.C. App. 541, 761 S.E.2d 744 (2014).
As to the scope of review under former statutory provisions, see Jarrell v. Board of Adjustment, 258 N.C. 476, 128 S.E.2d 879 (1963); In re Coleman, 11 N.C. App. 124,
180 S.E.2d 439 (1971).
Power to review. - The superior court, pursuant to a writ of certiorari under subsection (e), only has the power to review the issue of whether a permit was properly granted or denied. Simpson v. City of Charlotte, 115 N.C. App. 51, 443 S.E.2d 772 (1994).
In reviewing the city board of adjustment's affirmance of an administrative enforcement officer decision that a sawmill on residential property violated a city ordinance, the superior court had the statutory power to review only the issue of whether the officer's determination was properly affirmed, and did not have the statutory authority to address the owner's constitutional challenges to the validity of the zoning ordinance. Dobo v. Zoning Bd. of Adjustment, 149 N.C. App. 701, 562 S.E.2d 108 (2002), rev'd on other grounds, 356 N.C. 656, 576 S.E.2d 324, 2003 N.C. LEXIS 34 (2003).
Because petitioners did not appeal the decision of a board of adjustment to deny the appeal of the revocation of a sign permit, the board's determination that the permit was issued in error and properly revoked was the law of the case, and the parties
were bound by the decision; because petitioners did not appeal the board's decision, they were bound by the decision and could not assert that the town was barred by estoppel or laches from revoking the permit. Premier Plastic
Surgery Ctr., PLLC v. Bd. of Adjustment for Matthews, 213 N.C. App. 364, 713 S.E.2d 511 (2011).
The inquiry on review upon writ of certiorari under this section is whether the board committed an error of law or whether an order of the board is arbitrary, oppressive or attended with manifest abuse of authority. Teen Challenge Training Center, Inc.
v. Board of Adjustment, 90 N.C. App. 452, 368 S.E.2d 661 (1988) (decided under former G.S. 153A-345).
When a superior court reviews the decision of a board of adjustment on certiorari, the court sits as an appellate court. CG & T Corp. v. Board of Adjustment, 105 N.C. App. 32, 411 S.E.2d 655
(1992).
Superior Court Not the Trier of Fact. - On review of the sufficiency and competency of the evidence at the appellate level, the question is not whether the evidence before the superior court supported that court's order, but whether the evidence before
the town board was supportive of its action. In proceedings of this nature, the superior court is not the trier of fact. Such is the function of the town board. Coastal Ready-Mix Concrete Co. v. Board of Comm'rs,
299 N.C. 620, 265 S.E.2d 379, rehearing denied, 300 N.C. 562, 270 S.E.2d 106 (1980).
Findings of Fact Necessary. - Findings of fact are an important safeguard against arbitrary and capricious action by the board of adjustment because they establish a sufficient record upon which the appellate court can review the board's decision. Crist v. City of Jacksonville, 131 N.C. App. 404, 507 S.E.2d 899 (1998).
Trial court erred in concluding that a board of adjustment made sufficient findings of facts to support its denial of petitioners' application for a variance because the board's findings of fact lacked the specificity necessary for the court of appeals
to determine whether the board had acted arbitrarily or had committed errors of law; the board's findings presented no reasoning, were conclusory statements, and were not supported by any evidence in the record but were mere
conjecture. Premier Plastic Surgery Ctr., PLLC v. Bd. of Adjustment for Matthews, 213 N.C. App. 364, 713 S.E.2d 511 (2011).
Whole Record Test. - Because the trial court was reviewing whether the board's decision that the facility's impacts were most similar to recreation/amusement, the court should have applied the whole record test. Fort v. County of Cumberland,
235 N.C. App. 541, 761 S.E.2d 744 (2014).
Review of Questions of Fact. - The writ of certiorari is a writ to bring the matter before the court, upon the evidence presented by the record itself, for review of alleged errors of law. It does not lie to review questions of fact to be determined by evidence outside the record. In re Pine Hill Cemeteries, 219 N.C. 735, 15 S.E.2d 1 (1941). See Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128 (1946); Jarrell v. Board of Adjustment, 258 N.C. 476, 128 S.E.2d 879 (1963).
Determination of questions of fact by the board of adjustment will not be disturbed when its findings are supported by evidence and are made in good faith. In re Hasting, 252 N.C. 327, 113 S.E.2d
433 (1960).
Rezoning Petition Cannot Be Used to Circumvent Appeals Process. - The plaintiff-store owner who failed to file an appeal with the City's Board of Adjustment contesting the zoning officer's determination that the sale of beer in his store would constitute
an unlawful expansion of a non-conforming use pursuant to the requirements of this section, and who instead filed a rezoning petition requesting that his property be rezoned from I-2 to B-3, failed to avail himself of the only
judicial review authorized by statute and could not collaterally attack the determination of the zoning officer by appeal to the court. Potter v. City of Hamlet, 141 N.C. App. 714, 541 S.E.2d 233, cert. denied, 355 N.C. 379, 547 S.E.2d 814 (2001).
Challenge Under Dillon's Rule - Certiorari Not Necessary. - Where owner of mobile home challenged validity of city ordinance as violating requirements of Dillon's Rule, complaint did not need to be in form of a petition for certiorari since trial court
should have allowed owner to attack ordinance directly; owner stated direct attack on ordinance so long as she could show that attack was timely under G.S. 153A-348. White v. Union County,
93 N.C. App. 148, 377 S.E.2d 93 (1989) (decided under former G.S. 153A-345).
Decisions of a board of adjustment are not subject to collateral attack. County of Durham v. Addison, 262 N.C. 280, 136 S.E.2d 600 (1964) (decided under former G.S. 153A-345).
For case holding that defendant in action for violating zoning ordinance, having failed to exhaust his statutory remedies, could not challenge validity of ordinance, see Forsyth County v. York, 19 N.C. App. 361, 198 S.E.2d 770, cert. denied, 284 N.C. 253, 200 S.E.2d 653 (1973) (decided under former G.S. 153A-345).
Since Board Decision Would Be Rendered Meaningless. - To allow a collateral attack on an unappealed board decision would make the decision meaningless. New Hanover County v. Pleasant, 59 N.C. App. 644, 297 S.E.2d 760 (1982) (decided under former G.S. 153A-345).
Judicial review of town's decisions to grant or deny conditional use permits is provided for in subsection (e) of this section. Coastal Ready-Mix Concrete Co. v. Board of Comm'rs, 299 N.C. 620,
265 S.E.2d 379, rehearing denied, 300 N.C. 562, 270 S.E.2d 106 (1980).
Jurisdiction to Review Interpretation of Variance. - The Superior Court clearly had jurisdiction under subsection (e) of this section to review Board of Adjustment's April 15, 1985, interpretation of a Nov. 26, 1984, variance granted to petitioner, where
petitioner was aggrieved by the latter order, under its writ of certiorari, and the Court of Appeals had jurisdiction to review the court's decision. Brummer v. Board of Adjustment, 81 N.C. App. 307, 343 S.E.2d 603, cert. denied, 318 N.C. 413, 349 S.E.2d 590 (1986).
Review Limited to Whether Variance Properly Denied Absent Challenge to Validity of Ordinance. - Upon denial of a variance by the board of aldermen, sitting in their quasi-judicial capacity as the board of adjustment, the superior court, and hence the
Court of Appeals through its derivative appellate jurisdiction, had the statutory power to review only the issue of whether the variance was properly denied. The constitutionality of the zoning ordinance was a separate issue
not properly a part of these proceedings, since the denial of the variance request never addressed the validity of the zoning ordinance, and since the superior court sat in the posture of an appellate court, so that it was
not in a position to address constitutional issues that were not before the board. Sherrill v. Town of Wrightsville Beach, 76 N.C. App. 646, 334 S.E.2d 103 (1985).
Who May Appeal from Order. - Any owner whose property is affected has the right to apply to the courts for review of an order of a municipal board of adjustment. Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128 (1946).
Any aggrieved party may appeal from a ruling of the city building inspector to the board of adjustment, and such an aggrieved party may then appeal from the board to superior court by way of certiorari. Pigford v. Board of Adjustment, 49 N.C. App. 181, 270 S.E.2d 535 (1980), cert. denied and appeal dismissed, 301 N.C. 722, 274 S.E.2d 230 (1981).
An order of a board of adjustment which exceeds its authority under the zoning ordinance may be appealed by nearby landowners who will sustain special damage from the proposed use. Heery v. Town of Highlands Zoning Bd. of Adjustment, 61 N.C. App. 612, 300 S.E.2d 869 (1983).
In order to seek review of board of adjustment decisions made under zoning ordinances, petitioners must be aggrieved persons within the meaning of this section. This means only that the appealing party must have some interest in the property affected. However, the "property affected" is not limited to the property subject to the special use permit. Heery v. Town of Highlands Zoning Bd. of Adjustment, 61 N.C. App. 612, 300 S.E.2d 869 (1983).
Allegations and evidence presented by the neighbors in regards to the increased traffic, increased water runoff, parking, and safety concerns, as well as the secondary adverse effects on the neighbors' businesses, were sufficient special damages to give standing to the neighbors to challenge, pursuant to G.S. 160A-388(e2), the issuance of a special use permit for the opening of an adult establishment. Mangum v. Raleigh Bd. of Adjustment, 362 N.C. 640, 669 S.E.2d 279 (2008).
Appellate court had jurisdiction to review a conditional use permit's denial after the applicant withdrew the application because (1) site owners had standing and continued to seek the permit, and (2) the denial was a reviewable final judgment. Dellinger
v. Lincoln Cty., 266 N.C. App. 275, 832 S.E.2d 172 (2019).
Only persons "aggrieved" within the meaning of this section possess standing to seek judicial review. Lloyd v. Town of Chapel Hill, 127 N.C. App. 347, 489 S.E.2d 898 (1997).
An adjoining property owner was an aggrieved party, even though she failed to allege such, and the trial court had jurisdiction to allow her to amend her petition for certiorari, where she sought certiorari for judicial review of the zoning board's grant
of a setback variance. Darnell v. Town of Franklin, 131 N.C. App. 846, 508 S.E.2d 841 (1998).
The Zoning Board of Adjustment is a necessary party respondent to a petition filed pursuant to subsection (e) of this section. Mize v. County of Mecklenburg, 80 N.C. App. 279, 341 S.E.2d 767 (1986)
(decided under former G.S. 153A-345).
Board of Adjustment Necessary Party. - In dispute over zoning code the trial court did not err in dismissing the action based on the failure to join the Board of Adjustment as a necessary party to the lawsuit. City of Raleigh v. Hudson Belk Co.,
114 N.C. App. 815, 443 S.E.2d 112 (1994) (decided under former G.S. 153A-345).
In addition to the Zoning Board of Adjustment, other parties may in fact be necessary to determine issues raised in a petition under subsection (e) of this section. Mize v. County of Mecklenburg, 80 N.C. App. 279, 341 S.E.2d 767 (1986) (decided under former G.S. 153A-345).
Amendment of Petition to Join Party. - Where petitioners complied with all the express requirements of this vague section by filing a petition in Mecklenburg County Superior Court within 30 days of the decision of the board, under the circumstances presented,
the court abused its discretion by failing to allow the petitioners to amend the petition to join the Zoning Board of Adjustment. Mize v. County of Mecklenburg, 80 N.C. App. 279, 341 S.E.2d 767 (1986) (decided under former G.S. 153A-345).
Standing. - Where an owner was granted a special use permit to operate a paintball playing field on the owner's property, the adjoining neighbors lacked standing to appeal the grant of the permit, as their mere averment that they owned land in the immediate vicinity of the subject property, absent an allegation of special damages distinct from the rest of the community, was insufficient to confer standing upon them. Sarda v. City/ Durham Bd. of Adjustment, 156 N.C. App. 213, 575 S.E.2d 829 (2003) (decided under former G.S. 153A-345).
County did not need to show that it was an aggrieved person to have standing to appeal pursuant to a petition for certiorari the grant of a special use permit by a county zoning board of adjustment because G.S. 153A-345 (now repealed) indicated that such an appeal was permitted; moreover, the abutting landowners to the subject property, upon which a retailer intended to build a large store, had standing because they suffered special damages to their properties that were unique in character and quantity and distinct from those inflicted upon the community at large, including a reduction in the values of their properties. Cook v. Union County Zoning Bd. of Adjustment, 185 N.C. App. 582, 649 S.E.2d 458 (2007) (decided under former G.S. 153A-345).
Dismissal of owners' petition seeking review of a board's decision granting buyers' application for a conditional use permit for property was proper because standing was required before a petitioner was allowed to seek review of a special use permit or conditional use permit, and because the owners failed to allege any damages whatsoever, they lacked standing. Casper v. Chatham County, 186 N.C. App. 456, 651 S.E.2d 299 (2007) (decided under former G.S. 153A-345).
Where a county zoning officer granted a building permit to a church, an adjacent property owner lacked standing to appeal from the zoning officer to the zoning board under G.S. 153A-345(b) (now repealed) or 1947 N.C. Sess. Laws, ch. 677, § 33, because the property owner did not allege or show the requisite special damages to assert standing as a person aggrieved since the application did not allege that the zoning decisions had decreased the value of the property owner's property or would do so in the future. Smith v. Forsyth County Bd. of Adjustment, 186 N.C. App. 651, 652 S.E.2d 355 (2007) (decided under former G.S. 153A-345).
Residents had standing to participate in special use permit hearings because (1) the applicable ordinance let any member of the public appear and present evidence, and (2) the applicant agreed to allow the residents to intervene in the reviewing trial
court. Little River, LLC v. Lee Cty., 257 N.C. App. 55, 809 S.E.2d 42 (2017), review denied, 818 S.E.2d 692, 2018 N.C. LEXIS 878 (N.C. 2018).
Adverse Decision of Board of Aldermen. - Section 160A-381, and not subsection (e) of this section, grants applicants the right to petition the superior court for writ of certiorari from adverse decisions of boards of aldermen. White Oak Properties, Inc. v. Town of Carrboro, 71 N.C. App. 360, 322 S.E.2d 400 (1984), rev'd on other grounds, 313 N.C. 306, 327 S.E.2d 882 (1985).
The same procedures should be followed when seeking review of adverse decisions on application for conditional use permits, whether delivered by a board of aldermen or a board of adjustment. In the absence of a specified time for applying for certiorari
from a board of aldermen which is different from that allowed for appeal from a board of adjustment, the reasonable conclusion is that the time limit is the same for both. White Oak Properties, Inc. v. Town of Carrboro,
71 N.C. App. 360, 322 S.E.2d 400 (1984), rev'd on other grounds, 313 N.C. 306, 327 S.E.2d 882 (1985).
An aggrieved person in a zoning proceeding must own the affected property or have some interest in it. Wil-Hol Corp. v. Marshall, 71 N.C. App. 611, 322 S.E.2d 655 (1984).
Petitioner Held Not "Aggrieved Party." - Where it did not appear in the record that petitioner was the owner of property affected by a ruling of defendant board of adjustment, petitioner was not an aggrieved party entitled to judicial review, and proceedings in the superior court were therefore nullities. Pigford v. Board of Adjustment, 49 N.C. App. 181, 270 S.E.2d 535 (1980), cert. denied and appeal dismissed, 301 N.C. 722, 274 S.E.2d 230 (1981).
Since optionee had no present right to erect a building on the land, the withholding of a building permit from him could not in law impose an "undue and unnecessary hardship" upon him as a predicate for relief from an order of a municipal board of adjustment. Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128 (1946).
Plaintiffs, an unincorporated association of owners of business, who challenged the issuance of a permit to allow renovation of a structure to be used as a shelter for the homeless, lacked standing to seek review of the zoning board's decision, where they failed to allege, and the superior court failed to find, that plaintiffs would be subject to special damages distinct from the rest of the community and alleged nothing more than that they were nearby or adjacent property owners. Concerned Citizens v. Board of Adjustment, 94 N.C. App. 364, 380 S.E.2d 130 (1989).
Where a county zoning officer granted a building permit to a church, an adjacent property owner lacked standing to appeal from the zoning officer to the zoning board under G.S. 153A-345(b) (now repealed) or 1947 N.C. Sess. Laws, ch. 677,
§
33, because the property owner did not allege or show the requisite special damages to assert standing as a person aggrieved since the application did not allege that the zoning decisions had decreased the value
of the property owner's property or would do so in the future. Smith v. Forsyth County Bd. of Adjustment, 186 N.C. App. 651, 652 S.E.2d 355 (2007).
As to necessity for prosecution of a legal proceeding by a legal person, see In re Coleman, 11 N.C. App. 124, 180 S.E.2d 439 (1971).
Applicability of principles of
§
150B-51. - While the specific review provision of the North Carolina Administrative Procedure Act, G.S. 150B-51, is
not directly applicable to reviews of town board zoning decisions, the principles that provision embodies are highly pertinent. Coastal Ready-Mix Concrete Co. v. Board of Comm'rs, 299 N.C. 620,
265 S.E.2d 379, rehearing denied, 300 N.C. 562, 270 S.E.2d 106 (1980).
This section contains no requirement that a complete record be submitted to the superior court for review. Burton v. New Hanover County Zoning Bd. of Adjustment, 49 N.C. App. 439, 271 S.E.2d 550
(1980), cert. denied, 302 N.C. 217, 276 S.E.2d 914 (1981).
Collateral Attack Held Not Available. - Where defendants failed to exercise the remedies available to them under a zoning ordinance by seeking judicial review of a denial of their request for a variance from the planting strip provision of the ordinance, they could not collaterally attack the validity of the planting strip provision in plaintiff city's action for an injunction requiring them to comply with the ordinance. City of Elizabeth City v. LFM Enterprises, Inc., 48 N.C. App. 408, 269 S.E.2d 260 (1980).
A zoning ordinance could not be collaterally attacked by a party who failed to avail herself of the judicial review that the ordinance and statutes authorized. Wil-Hol Corp. v. Marshall, 71 N.C. App. 611, 322 S.E.2d 655 (1984).
In action by plaintiff seeking civil penalties and injunctive relief against defendant for displaying portable signs, where defendant failed to file any notice of appeal with the zoning administrator or the board of adjustment within the required 30 days
after he received the notice of the zoning administrator's determination, he waived any right to raise in superior court defenses he might have had to the assessment. Having failed to exercise his administrative remedies, defendant
could not collaterally attack the determination of the zoning administrator. Grandfather Village v. Worsley, 111 N.C. App. 686, 433 S.E.2d 13 (1993).
Mandamus but Not Appeal Held Available. - Plaintiff could not attack special use permits where she failed to first appeal to the board of zoning adjustment. However, plaintiff stated a proper claim against town for mandamus by alleging that zoning administrators
failed to enforce ordinance. Midgette v. Pate, 94 N.C. App. 498, 380 S.E.2d 572 (1989).
Entry of Consent Order Did Not Render Appeal Moot. - Appeal by proposed intervenors in an appeal under G.S. 160A-388(e) of the decision of a town board of adjustment denying a conditional use permit for a residential development was not rendered moot
by the entry of a consent decree between the developer and the board requiring the board to issue the permit; the intervenors, who were nearby landowners opposed to the development, sought not only to prevent the issuance of
the permit but also alleged that the trial court's action in approving the consent decree was unlawful and that there were sufficient special damages to entitle them to intervention as a matter of right. Councill v. Town of
Boone Bd. of Adjustment, 146 N.C. App. 103, 551 S.E.2d 907, cert. denied, 354 N.C. 360, 560 S.E.2d 130 (2001).
Modifications to Facility Expanded Non-conforming Use. - Substantial evidence supported the finding of a Board of Adjustment that an applicant's proposed modifications to its asphalt plant would enlarge the commercial viability of the plant by reducing
future operating costs because the testimony indicated that the new equipment would significantly decrease operating costs and enable the plant to operate more efficiently, and that testimony was sufficient to support a finding
that the new equipment would enlarge the plant's commercial viability; Board did not err by considering the plant's commercial viability in concluding that the proposed modifications would expand or enlarge the non-conforming
use. APAC-Atlantic, Inc. v. City of Salisbury, 210 N.C. App. 668, 709 S.E.2d 390 (2011).
Use of Property as Improper Challenge to Expansion. - Board of Adjustment properly held that petitioner could not challenge the expansion of the homeless shelter on the grounds of the use of the property. Allen v. City of Burlington Bd. of Adjustment,
100 N.C. App. 615, 397 S.E.2d 657 (1990).
Expansion of Non-Conforming Use. - Superior court did not err in affirming the finding of a Board of Adjustment that an applicant's proposed modifications to its asphalt plant would expand or enlarge the non-conforming use pursuant to City of Salisbury, N.C. Land Development Ordinance, § 13.3(C) because an enlargement or expansion in the plant's maximum operating capacity constituted an impermissible enlargement or expansion of the applicant's non-conforming use since at least one result of the proposed modifications would be an expanded capacity to produce asphalt; application of whole record and de novo review to separate components of the Board's decision that the proposed modifications would expand or enlarge the non-conforming use was appropriate. APAC-Atlantic, Inc. v. City of Salisbury, 210 N.C. App. 668, 709 S.E.2d 390 (2011).
Because a Board of Adjustment did not err by concluding that an applicant's proposed modifications to its asphalt plant constituted an expansion or enlargement of the applicant's non-conforming use, the proposed modifications would be impermissible. APAC-Atlantic,
Inc. v. City of Salisbury, 210 N.C. App. 668, 709 S.E.2d 390 (2011).
Grant of Variance Affirmed. - Town of Surf City board of adjustment's decision to grant a variance of approximately 7.2 inches to property owners was based upon competent evidence and was not arbitrary or capricious because: (1) there was sufficient evidence
to support the board's finding that literal enforcement of the Surf City, N.C. Zoning Ordinance would result in an unnecessary hardship for the owners; (2) the variance would allow the owners to continue their construction
project that was started only after obtaining a legitimate construction permit; (3) there was no indication that granting the variance would harm neighboring properties or structures, and would not give any special privileges
to the owners; (4) the board followed the procedures for granting a variance as outlined in the ordinance; and (5) the owners followed the necessary procedures to obtain a building permit before they began construction on their
property and the hardship that they faced was not one of their own making. Turik v. Town of Surf City, 182 N.C. App. 427, 642 S.E.2d 251 (2007).
Review of Denial of Subdivision Application. - Denial of a property owner's subdivision application was properly reversed because the property owner complied with the general and technical requirements of the town's subdivision ordinance since substantial
evidence did not support findings regarding overcrowding of schools, increased traffic, and incompatibility with the existing neighborhood; also, remand for clarification of subjective criteria in the ordinance was reasonable.
Blue Ridge Co., L.L.C. v. Town of Pineville, 188 N.C. App. 466, 655 S.E.2d 843, review denied, review dismissed, as moot, 362 N.C. 679, 669
S.E.2d 742 (2008).
Appeal rights do not resurface simply because a use which has been found to be permissible on the property is being expanded. Any challenge to this expansion would have to be based on factors other than use. Allen v. City of Burlington Bd. of Adjustment,
100 N.C. App. 615, 397 S.E.2d 657 (1990).
Proper Review at Appellate Level Considers Whether Evidence Before Town Board Was Supportive of Its Action. - In reviewing sufficiency and competency of the evidence at the appellate level, the question is not whether the evidence before the superior
court supported that court's order, but whether the evidence before, the town board was supportive of its action. Coulter v. City of Newton, 100 N.C. App. 523, 397 S.E.2d
244 (1990).
Notice of Appeal. - Resident's oral request via voicemail to a village's did not comply with G.S. 160A-388(e2) because it was not made (1) in writing, (2) to the secretary or chairman of the board of adjustment, or (3) at the time of the board's hearing
of the case; rather, the request was made (1) orally, (2) to counsel who had represented the village in the hearing, and (3) on the day after the hearing concluded. McCrann v. Vill. of Pinehurst,
216 N.C. App. 291, 716 S.E.2d 667 (2011).
Insufficient Pleadings. - In action to contest decision of town board of adjustment issuing special exception permit for expansion of present nonconforming building, allegation that landowner was the "owner of adjoining property" did not satisfy the pleading
requirement, in that there was no allegation relating to whether and in what respect landowner's land would be adversely affected by the board's issuance of the special exception permit. Kentallen, Inc. v. Town of Hillsborough,
110 N.C. App. 767, 431 S.E.2d 231 (1993).
Time for Appeal. - The fact that the town planner failed to inform the landowner of its right to appeal a zoning decision did not preclude enforcement of the town's 30-day limitation period for filing an appeal, where the planner's letter was silent, but the landowner was presumed to know the law governing such appeals. Water Tower Office Assocs. v. Town of Cary Bd. of Adjustment, 131 N.C. App. 696, 507 S.E.2d 589 (1998).
Trial court did not err in denying residents' petition for review of a village's decision to issue a corporation a special use zoning permit because the petition was not timely filed under G.S. 160A-388(e2); the residents did not file their petition until 31 days after the order granting the permit was filed, and they did not file a written request for such copy with the secretary or chairman of the board of adjustment at the time of its hearing of the case, which would have tolled the start of the 30-day filing period until their receipt of a copy of the order. McCrann v. Vill. of Pinehurst, 216 N.C. App. 291, 716 S.E.2d 667 (2011).
Village and a corporation were not estopped from asserting G.S. 160A-388(e2) as a bar to residents' petition for judicial review of the village's decision to issue the corporation a special use permit because resident's failed to assert the essential elements of estoppel; the residents did not argue that the cooperative interactions of the village and the corporation with the residents concealed or misrepresented the requirements of G.S. 160A-388(e2) or were undertaken in order to dupe the residents into filing their petition outside the permitted time period. McCrann v. Vill. of Pinehurst, 216 N.C. App. 291, 716 S.E.2d 667 (2011).
Superior court properly dismissed a land owner's amended petition for judicial review under writ of certiorari because the town, and not the town's board of adjustment, was statutorily required to be named as the respondent in the owner's petition for
judicial review, the owner's initial petition failed to name the town, while his amended petition named the town, it was filed long after the 30-day statute of limitations for appealing such decisions, and the owner's amended
petition did not relate back to his initial petition inasmuch as the town did not waived his failure to name it as the respondent in his initial petition by participating in the hearing on the board of adjustment's motion to
dismiss. Azar v. Town of Indian Trail Bd. of Adjustment, 257 N.C. App. 1, 809 S.E.2d 17 (2017).
Appeal Held Timely. - The trial court erred by affirming the Board of Adjustment's determination that petitioner was time-barred from bringing appeal, relying on local ordinance and laches. Burlington Zoning Ordinance G.S. 32.15(H) provided that appeals
were to be taken within a "reasonable time." Reasonable was not defined. In making a determination of what is reasonable, the time begins to run when a party has actual or constructive notice of the zoning decision. There is
no evidence that petitioner had actual notice of the building inspector's decision until letter of August 10, 1989. Petitioner appealed this decision on September 8, 1989, within a reasonable period. Allen v. City of Burlington
Bd. of Adjustment, 100 N.C. App. 615, 397 S.E.2d 657 (1990).
Remand, Not Granting Variance, Was Proper. - Although denial of an owner's request for a variance was improper, the proper course was for the trial court to remand the case to the board, not to grant the variance. Stealth Props., LLC v. Town of Pinebluff
Bd. of Adjustment, 183 N.C. App. 461, 645 S.E.2d 144 (2007).
"Aggrieved Party" Defined. - An aggrieved party is one who can either show an interest in the property affected, or if the party is a nearby property owner, some special damage, distinct from the rest of the community, amounting to a reduction in the value of his property. Allen v. City of Burlington Bd. of Adjustment, 100 N.C. App. 615, 397 S.E.2d 657 (1990).
An aggrieved party is one who either shows a legal interest in the property affected or, in the case of a nearby property owner, shows some special damage, distinct from the rest of the community, amounting to a reduction in value of the owner's property.
Lloyd v. Town of Chapel Hill, 127 N.C. App. 347, 489 S.E.2d 898 (1997).
Petitioner Held to Be "Aggrieved Party". - Board of Adjustment's determination that petitioner was not an aggrieved person was not supported by evidence in the record where: the record revealed competent evidence of such special damages through petitioner's
own testimony; respondents' expert testified in general terms about the neighborhood and his opinion as to the appropriateness of the proposed uses in the area; and nothing in his testimony could reasonably be concluded to
negative petitioner's testimony about his property. Allen v. City of Burlington Bd. of Adjustment, 100 N.C. App. 615, 397 S.E.2d 657 (1990).
Standing of Aggrieved Party to Appeal. - Appeals may be taken to the Board of Adjustment from a building inspector's decision only by a "person aggrieved" by that decision. Allen v. City of Burlington Bd. of Adjustment,
100 N.C. App. 615, 397 S.E.2d 657 (1990).
Appeal by Intervenors Dismissed. - Appeal by intervenors was dismissed where there was no evidence of a diminishment of property values or an assertion of special damages distinct from the rest of the community. Lloyd v. Town of Chapel Hill,
127 N.C. App. 347, 489 S.E.2d 898 (1997).
Trial court did not err in allowing neighboring property owners to intervene in a developer's appeal from a determination that property sought to be developed was in a Conservation Overlay District, because the intervenors alleged that development of
the property without the performance controls required of property associated with a Conservation Overlay District would significantly increase traffic, light pollution, noise and other related pollution that will all lead
to a pecuniary loss in the value of the intervenors' properties. Bailey & Assocs. v. Wilmington Bd. of Adjustment, 202 N.C. App. 177, 689 S.E.2d 576 (2010).
De Novo Review - A zoning board of adjustment's determination of nonconforming use is subject to a review de novo. Welter v. Rowan County Bd. of Comm'rs, 160 N.C. App. 358, 585 S.E.2d 472 (2003).
Trial court properly reviewed the denial of a conditional use permit (CUP) de novo because this was the standard used to determine if a developer showed prima facie entitlement to a CUP. PHG Asheville, LLC v. City of Asheville,
262 N.C. App. 231, 822 S.E.2d 79 (2018), aff'd, 374 N.C. 133, 839 S.E.2d 755, 2020 N.C. LEXIS 274 (N.C. 2020).
Superior court properly exercised its scope of review in affirming a decision by a city zoning board of adjustment to affirm the denial of a business privilege license by a city tax collector for a sexually oriented business that sought to operate in
violation of a city ordinance because competent, material, and substantial evidence existed in the record to support the decision. Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 162 N.C. App. 603, 592 S.E.2d 205, cert. denied, 358 N.C. 543, 599 S.E.2d 43 (2004).
Appealable Controversy. - Pursuant to G.S. 160A-388(b), the controversy surrounding a town historic preservation commission's denial of a developer's design application remained after the application was denied because the issuance of a certificate of appropriateness by the commission was not dependent upon the issuance of a zoning certificate. Meares v. Town of Beaufort, 193 N.C. App. 96, 667 S.E.2d 239 (2008).
Upon de novo review, the appellate court found that the superior court erred when it dismissed the appeal of town residents, the country club residents, the architects, and the development team members under G.S. 160A-381(c) and G.S. 160A-388 pursuant
to a writ of certiorari for lack of standing because the proposed development would have been unlawful without an amendment to the town's zoning ordinances and the issuance of a conditional use permit. Furthermore, in conjunction
with the allegations of proximity contained in the petition, the testimony was sufficient to establish the town residents, the country club residents, the architects, and the development team members' standing with special
damages resulting from water runoff, septic tank pollution, increased noise, increased traffic on narrow roadways, and the danger to the town residents and neighborhood children on the roadways. McMillan v. Town of Tryon,
200 N.C. App. 282, 683 S.E.2d 743 (2009).
Board Properly Considered Stated Purpose of Local Ordinance. - Superior court did not err in concluding that a Board of Adjustment did not improperly impose additional requirements from City of Salisbury, N.C. Land Development Ordinance,
§
13.1 in its conclusions of law because the Board affirmed the denial of the applicant's site plan on the basis that the modifications violated City of Salisbury, N.C. Land Development Ordinance,
§
13.3(B) and (C), and its order demonstrates that, in reaching those conclusions, it merely considered the stated purposes in
§
13.1. APAC-Atlantic, Inc. v. City of Salisbury, 210 N.C. App. 668, 709 S.E.2d 390 (2011).
Error in Affirming Denial of Permit. - Trial court erred in affirming the decision of the county board of adjustment to uphold the denial of a limited liability company's application for a High Impact Land Use (HILU) permit on the ground that its proposed
asphalt plant site was located within 1,500 feet of an education center because the center did not qualify as an "educational facility" under the county's HILU ordinance. Appalachian Materials, LLC v. Watauga Cty.,
262 N.C. App. 156, 822 S.E.2d 57 (2018), review denied, 824 S.E.2d 419, 2019 N.C. LEXIS 273 (2019).
Erroneous Denial of Conditional Use Permit. - City lacked the authority to deny a requested conditional use permit because the applicant presented competent, material, and substantial evidence; through the testimony of architects, an appraiser, a traffic
engineer, a certified planner, and the vice president of the applicant, that the applicant's proposed construction of a hotel satisfied the relevant conditional use permit standards set out in the city's unified development
ordinance. PHG Asheville, LLC v. City of Asheville, 374 N.C. 133, 839 S.E.2d 755 (2020).
§ 160D-303. Historic preservation commission.
- Composition. - Before it may designate one or more landmarks or historic districts pursuant to Part 4 of Article 9 of this Chapter, the governing board shall establish a historic preservation commission. The governing board shall determine the number of the members of the commission, which shall be at least three, and the length of their terms, which shall be no greater than four years. A majority of the members of the commission shall have demonstrated special interest, experience, or education in history, architecture, archaeology, or related fields. All the members shall reside within the planning and development regulation jurisdiction of the local government as established pursuant to this Chapter. The commission may appoint advisory bodies and committees as appropriate. Members of the commission may be reimbursed for actual expenses incidental to the performance of their duties within the limits of any funds available to the commission but shall serve without pay unless otherwise provided in the ordinance establishing the commission.
- Alternative Forms. - In lieu of establishing a historic preservation commission, a local government may designate as its historic preservation commission (i) a separate historic districts commission or a separate historic landmarks commission established pursuant to this Chapter to deal only with historic districts or landmarks respectively, (ii) a planning board established pursuant to this Chapter, or (iii) a community appearance commission established pursuant to this Chapter. In order for a commission or board other than the historic preservation commission to be designated, at least three of its members shall have demonstrated special interest, experience, or education in history, architecture, or related fields. At the discretion of a local government, the ordinance may also provide that the preservation commission may exercise within a historic district any or all of the powers of a planning board or a community appearance commission.
- Joint Commissions. - Local governments may establish or designate a joint preservation commission. If a joint commission is established or designated, it shall have the same composition as specified by this section, and the local governments involved shall determine the residence requirements of members of the joint preservation commission.
- Duties. - The historic preservation commission shall have the duties specified in G.S. 160D-942.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-304. Appearance commission.
- Composition. - Each local government may create a special commission, to be known as the appearance commission. The commission shall consist of not less than seven nor more than 15 members, to be appointed by the governing board for terms not to exceed four years, as the governing board may by ordinance provide. All members shall be residents of the local government's area of planning and development regulation jurisdiction at the time of appointment. Where possible, appointments shall be made in such a manner as to maintain on the commission at all times a majority of members who have had special training or experience in a design field, such as architecture, landscape design, horticulture, city planning, or a related field. Members of the commission may be reimbursed for actual expenses incidental to the performance of their duties within the limits of any funds available to the commission but shall serve without pay unless otherwise provided in the ordinance establishing the commission. Membership of the commission is an office that may be held concurrently with any other elective or appointive office pursuant to Section 9 of Article VI of the North Carolina Constitution.
- Joint Commissions. - Local governments may establish a joint appearance commission. If a joint commission is established, it shall have the same composition as specified by this section, and the local governments involved shall determine the residence requirements for members of the joint commission.
- Duties. - The community appearance commission shall have the duties specified in G.S. 160D-960.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-305. Housing appeals board.
- Composition. - The governing board may by ordinance provide for the creation and organization of a housing appeals board. Instead of establishing a housing appeals board, a local government may designate the board of adjustment as its housing appeals board. The housing appeals board, if created, shall consist of five members to serve for three-year staggered terms.
- Duties. - The housing appeals board shall have the duties specified in G.S. 160D-1208.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-306. Other advisory boards.
A local government may by ordinance establish additional advisory boards as deemed appropriate. The ordinance establishing such boards shall specify the composition and duties of such boards.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-307. Extraterritorial representation on boards.
- Proportional Representation. - When a city elects to exercise extraterritorial powers under this Chapter, it shall provide a means of proportional representation based on population for residents of the extraterritorial area to be regulated. The population estimates for this calculation shall be updated no less frequently than after each decennial census. Representation shall be provided by appointing at least one resident of the entire extraterritorial planning and development regulation area to the planning board, board of adjustment, appearance commission, and the historic preservation commission if there are historic districts or designated landmarks in the extraterritorial area.
- Appointment. - Membership of joint municipal-county planning agencies or boards of adjustment may be appointed as agreed by counties and cities. The extraterritorial representatives on a city advisory board authorized by this Article shall be appointed by the board of county commissioners with jurisdiction over the area. The county shall make the appointments within 90 days following the receipt of a request from the city that the appointments be made. Once a city provides proportional representation, no power available to a city under this Chapter is ineffective in its extraterritorial area solely because county appointments have not yet been made. If there is an insufficient number of qualified residents of the extraterritorial area to meet membership requirements, the board of county commissioners may appoint as many other residents of the county as necessary to make up the requisite number. When the extraterritorial area extends into two or more counties, each board of county commissioners concerned shall appoint representatives from its portion of the area, as specified in the ordinance. If a board of county commissioners fails to make these appointments within 90 days after receiving a resolution from the city council requesting that they be made, the city council may make them.
- Voting Rights. - If the ordinance so provides, the outside representatives may have equal rights, privileges, and duties with the other members of the board to which they are appointed, regardless of whether the matters at issue arise within the city or within the extraterritorial area; otherwise, they shall function only with respect to matters within the extraterritorial area.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 8, 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 8, effective June 19, 2020, in subsection (b), substituted "cities" for "municipalities" at the end of the first sentence, substituted "the receipt of a request from the city that the appointments be made" for "the hearing" in the third sentence, and made a minor stylistic change in the fourth sentence.
CASE NOTES
Editor's Note. - The case cited under this section was decided under former G.S. 160A-362.
Proportional Representation. - Trial court properly granted a city summary judgment on the claims brought by one commissioner in his individual capacity challenging the city's attempt to exercise extraterritorial jurisdiction because the commissioner
failed to demonstrate that the city's method of proportional representation under former G.S. 160A-362 was unreasonable, nor had the commissioner demonstrated that a city could not provide its own means of proportional representation.
Macon County v. Town of Highlands, 187 N.C. App. 752, 654 S.E.2d 17 (2007).
§ 160D-308. Rules of procedure.
Rules of procedure that are consistent with the provisions of this Chapter may be adopted by the governing board for any or all boards created under this Article. In the absence of action by the governing board, each board created under this Article is authorized to adopt its own rules of procedure that are consistent with the provisions of this Chapter. A copy of any adopted rules of procedure shall be maintained by the local government clerk or such other official as designated by ordinance and posted on the local government Web site if one exists. Each board shall keep minutes of its proceedings.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-309. Oath of office.
All members appointed to boards under this Article shall, before entering their duties, qualify by taking an oath of office as required by G.S. 153A-26 and G.S. 160A-61.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-310. Appointments to boards.
Unless specified otherwise by statute or local ordinance, all appointments to boards authorized by this Chapter shall be made by the governing board of the local government. The governing board may establish reasonable procedures to solicit, review, and make appointments.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
ARTICLE 4. Administration, Enforcement, and Appeals.
Sec.
§ 160D-401. Application.
- The provisions of this Article shall apply to all development regulations adopted pursuant to this Chapter. Local governments may apply any of the definitions and procedures authorized by this Article to any ordinance adopted under the general police power of cities and counties, Article 8 of Chapter 160A of the General Statutes, and Article 6 of Chapter 153A of the General Statutes, respectively, and may employ any organizational structure, board, commission, or staffing arrangement authorized by this Article to any or all aspects of those ordinances. The provisions of this Article also apply to any other local ordinance that substantially affects land use and development.
- The provisions of this Article are supplemental to specific provisions included in other Articles of this Chapter. To the extent there is a conflict between the provisions of this Article and other Articles, the more specific provision shall control. This Article does not expand, diminish, or alter the scope of authority for development regulations authorized by this Chapter.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
CASE NOTES
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 153A-324, former G.S. 160A-365, and prior law.
Zoning Ordinance May Be Enforced by Injunction. - The relevant enabling acts provide for enforcement of the provisions of a zoning ordinance by injunction. County of Durham v. Addison, 262 N.C. 280,
136 S.E.2d 600 (1964), decided under former law.
Ordinance Itself Need Not Provide for Equitable Enforcement. - It is unnecessary for a zoning ordinance itself to contain any specific provision for equitable enforcement because this section allows any remedy under G.S. 153A-123 to be used at the county's
election as a matter of right and without qualification, unless the county's zoning ordinance provides otherwise. New Hanover County v. Pleasant, 59 N.C. App. 644, 297 S.E.2d
760 (1982).
Legislative Intent. - Section 160A-175(f) and this section demonstrate a general intent by the legislature to defer to the decisions of cities on which remedies and penalties shall be used to achieve enforcement of planning and zoning ordinances. Town
of Pine Knoll Shores v. Evans, 104 N.C. App. 79, 407 S.E.2d 895 (1991).
City Has Limited Choice of Remedies and Penalties. - Under G.S. 160A-175(f) and this section, the choice of remedies and penalties for enforcement of planning and zoning ordinances remains with the city. The choice of remedies and penalties, however,
is limited to those remedies and penalties available in G.S. 160A-175. Town of Pine Knoll Shores v. Evans, 104 N.C. App. 79, 407 S.E.2d 895 (1991).
§ 160D-402. Administrative staff.
- Authorization. - Local governments may appoint administrators, inspectors, enforcement officers, planners, technicians, and other staff to develop, administer, and enforce development regulations authorized by this Chapter.
- Duties. - Duties assigned to staff may include, but are not limited to, drafting and implementing plans and development regulations to be adopted pursuant to this Chapter; determining whether applications for development approvals are complete; receiving and processing applications for development approvals; providing notices of applications and hearings; making decisions and determinations regarding development regulation implementation; determining whether applications for development approvals meet applicable standards as established by law and local ordinance; conducting inspections; issuing or denying certificates of compliance or occupancy; enforcing development regulations, including issuing notices of violation, orders to correct violations, and recommending bringing judicial actions against actual or threatened violations; keeping adequate records; and any other actions that may be required in order adequately to enforce the laws and development regulations under their jurisdiction. A development regulation may require that designated staff members take an oath of office. The local government shall have the authority to enact ordinances, procedures, and fee schedules relating to the administration and the enforcement of this Chapter. The administrative and enforcement provisions related to building permits set forth in Article 11 of this Chapter shall be followed for those permits.
- Alternative Staff Arrangements. - A local government may enter into contracts with another city, county, or combination thereof under which the parties agree to create a joint staff for the enforcement of State and local laws specified in the agreement. The governing boards of the contracting parties may make any necessary appropriations for this purpose.
- Financial Support. - The local government may appropriate for the support of the staff any funds that it deems necessary. It shall have power to fix reasonable fees for support, administration, and implementation of programs authorized by this Chapter, and all such fees shall be used for no other purposes. When an inspection, for which the permit holder has paid a fee to the local government, is performed by a marketplace pool Code-enforcement official upon request of the Insurance Commissioner under G.S. 143-151.12(9)a., the local government shall promptly return to the permit holder the fee collected by the local government for such inspection. This subsection applies to the following types of inspection: plumbing, electrical systems, general building restrictions and regulations, heating and air-conditioning, and the general construction of buildings.
In lieu of joint staff, a governing board may designate staff from any other city or county to serve as a member of its staff with the approval of the governing board of the other city or county. A staff member, if designated from another city or county under this section, shall, while exercising the duties of the position, be considered an agent of the local government exercising those duties. The governing board of one local government may request the governing board of a second local government to direct one or more of the second local government's staff members to exercise their powers within part or all of the first local government's jurisdiction, and they shall thereupon be empowered to do so until the first local government officially withdraws its request in the manner provided in G.S. 160D-202.
A local government may contract with an individual, company, council of governments, regional planning agency, metropolitan planning organization, or rural planning agency to designate an individual who is not a city or county employee to work under the supervision of the local government to exercise the functions authorized by this section. The local government shall have the same potential liability, if any, for inspections conducted by an individual who is not an employee of the local government as it does for an individual who is an employee of the local government. The company or individual with whom the local government contracts shall have errors and omissions and other insurance coverage acceptable to the local government.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-403. Administrative development approvals and determinations.
- Development Approvals. - To the extent consistent with the scope of regulatory authority granted by this Chapter, no person shall commence or proceed with development without first securing any required development approval from the local government with jurisdiction over the site of the development. A development approval shall be in writing and may contain a provision requiring the development to comply with all applicable State and local laws. A local government may issue development approvals in print or electronic form. Any development approval issued exclusively in electronic form shall be protected from further editing once issued. Applications for development approvals may be made by the landowner, a lessee or person holding an option or contract to purchase or lease land, or an authorized agent of the landowner. An easement holder may also apply for development approval for such development as is authorized by the easement.
- Determinations and Notice of Determinations. - A development regulation enacted under the authority of this Chapter may designate the staff member or members charged with making determinations under the development regulation.
- Duration of Development Approval. - Unless a different period is specified by this Chapter or other specific applicable law, including for a development agreement, a development approval issued pursuant to this Chapter expires one year after the date of issuance if the work authorized by the development approval has not been substantially commenced. Local development regulations may provide for development approvals of shorter duration for temporary land uses, special events, temporary signs, and similar development. Local development regulations may also provide for development approvals of longer duration for specified types of development approvals. Nothing in this subsection limits any vested rights secured under G.S. 160D-108 or G.S. 160D-108.1.
- Changes. - After a development approval has been issued, no deviations from the terms of the application or the development approval shall be made until written approval of proposed changes or deviations has been obtained. A local government may define by ordinance minor modifications to development approvals that can be exempted or administratively approved. The local government shall follow the same development review and approval process required for issuance of the development approval in the review and approval of any major modification of that approval.
- Inspections. - Administrative staff may inspect work undertaken pursuant to a development approval to assure that the work is being done in accordance with applicable State and local laws and the terms of the approval. In exercising this power, staff may enter any premises within the jurisdiction of the local government at all reasonable hours for the purposes of inspection or other enforcement action, upon presentation of proper credentials, so long as the appropriate consent has been given for inspection of areas not open to the public or an appropriate inspection warrant has been secured.
- Revocation of Development Approvals. - In addition to initiation of enforcement actions under G.S. 160D-404, development approvals may be revoked by the local government issuing the development approval by notifying the holder in writing stating the reason for the revocation. The local government shall follow the same development review and approval process required for issuance of the development approval, including any required notice or hearing, in the review and approval of any revocation of that approval. Development approvals shall be revoked for any substantial departure from the approved application, plans, or specifications; for refusal or failure to comply with the requirements of any applicable local development regulation or any State law delegated to the local government for enforcement purposes in lieu of the State; or for false statements or misrepresentations made in securing the approval. Any development approval mistakenly issued in violation of an applicable State or local law may also be revoked. The revocation of a development approval by a staff member may be appealed pursuant to G.S. 160D-405. If an appeal is filed regarding a development regulation adopted by a local government pursuant to this Chapter, the provisions of G.S. 160D-405(f) regarding stays apply.
- Certificate of Occupancy. - A local government may, upon completion of work or activity undertaken pursuant to a development approval, make final inspections and issue a certificate of compliance or occupancy if staff finds that the completed work complies with all applicable State and local laws and with the terms of the approval. No building, structure, or use of land that is subject to a building permit required by Article 11 of this Chapter shall be occupied or used until a certificate of occupancy or temporary certificate pursuant to G.S. 160D-1116 has been issued.
- Optional Communication Requirements. - A regulation adopted pursuant to this Chapter may require notice or informational meetings, or both, as part of the administrative decision-making process.
The officer making the determination shall give written notice to the owner of the property that is the subject of the determination and to the party who sought the determination, if different from the owner. The written notice shall be delivered by personal delivery, email, or first-class mail. The notice shall be delivered to the last address listed for the owner of the affected property on the county tax abstract and to the address provided in the application or request for a determination if the party seeking the determination is different from the owner.
It is conclusively presumed that all persons with standing to appeal have constructive notice of the determination from the date a sign providing notice that a determination has been made is prominently posted on the property that is the subject of the determination, so long as the sign remains on the property for at least 10 days. A posted sign shall contain the words "Zoning Decision" or "Subdivision Decision" or similar language for other determinations in letters at least six inches high and shall identify the means to contact a local government staff member for information about the determination. Posting of signs is not the only form of constructive notice. Any sign posting is the responsibility of the landowner, applicant, or person that sought the determination. Verification of the posting shall be provided to the staff member responsible for the determination. Absent an ordinance provision to the contrary, posting of signs is not required.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 9, 51(a), (b), (d); 2021-88, s. 1(b).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 9, effective June 19, 2020, substituted "provision requiring the development to comply" for "provision that the development shall comply" in the second sentence of subsection (a); rewrote subsection (c); and made minor stylistic changes in subsections (b) and (f).
Session Laws 2021-88, s. 1(b), effective July 22, 2021, substituted "email, or first-class mail” for "electronic mail, or by first-class mail” in the next to last paragraph in subsection (b); rewrote the last paragraph in subsection (b); in subsection (e), deleted "of” preceding "the terms”, substituted "may” for "are authorized to”, "credentials, so long as” for credentials; provided, however, that”, and deleted "that” preceding "an appropriate inspection”; substituted "G.S. 160D-405(f)” for "G.S. 1603D-405(e)” in subsection (f); substituted "G.S. 160D-1116” for G.S. 160D-1114” in subsection (g); and substituted "or informational meetings, or both,” for "and/or informational meetings” in subsection (h).
§ 160D-404. Enforcement.
- Notices of Violation. - When staff determines work or activity has been undertaken in violation of a development regulation adopted pursuant to this Chapter or other local development regulation or any State law delegated to the local government for enforcement purposes in lieu of the State or in violation of the terms of a development approval, a written notice of violation may be issued. The notice of violation shall be delivered to the holder of the development approval and to the landowner of the property involved, if the landowner is not the holder of the development approval, by personal delivery, electronic delivery, or first-class mail and may be provided by similar means to the occupant of the property or the person undertaking the work or activity. The notice of violation may be posted on the property. The person providing the notice of violation shall certify to the local government that the notice was provided, and the certificate shall be deemed conclusive in the absence of fraud. Except as provided by G.S. 160D-1123 or G.S. 160D-1206 or otherwise provided by law, a notice of violation may be appealed to the board of adjustment pursuant to G.S. 160D-405.
- Stop Work Orders. - Whenever any work or activity subject to regulation pursuant to this Chapter or other applicable local development regulation or any State law delegated to the local government for enforcement purposes in lieu of the State is undertaken in substantial violation of any State or local law, or in a manner that endangers life or property, staff may order the specific part of the work or activity that is in violation or presents such a hazard to be immediately stopped. The order shall be in writing, directed to the person doing the work or activity, and shall state the specific work or activity to be stopped, the reasons therefor, and the conditions under which the work or activity may be resumed. A copy of the order shall be delivered to the holder of the development approval and to the owner of the property involved (if that person is not the holder of the development approval) by personal delivery, electronic delivery, or first-class mail. The person or persons delivering the stop work order shall certify to the local government that the order was delivered and that certificate shall be deemed conclusive in the absence of fraud. Except as provided by G.S. 160D-1112 and G.S. 160D-1208, a stop work order may be appealed pursuant to G.S. 160D-405. No further work or activity shall take place in violation of a stop work order pending a ruling on the appeal. Violation of a stop work order shall constitute a Class 1 misdemeanor.
-
Remedies. -
- Subject to the provisions of the development regulation, any development regulation adopted pursuant to authority conferred by this Chapter may be enforced by any remedy provided by G.S. 160A-175 or G.S. 153A-123. If a building or structure is erected, constructed, reconstructed, altered, repaired, converted, or maintained, or any building, structure, or land is used or developed in violation of this Chapter or of any development regulation or other regulation made under authority of this Chapter, the local government, in addition to other remedies, may institute any appropriate action or proceedings to prevent the unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance, use, or development; to restrain, correct or abate the violation; to prevent occupancy of the building, structure, or land; or to prevent any illegal act, conduct, business, or use in or about the premises.
- When a development regulation adopted pursuant to authority conferred by this Chapter is to be applied or enforced in any area outside the planning and development regulation jurisdiction of a city as set forth in Article 2 of this Chapter, the city and the property owner shall certify that the application or enforcement of the city development regulation is not under coercion or otherwise based on representation by the city that the city's development approval would be withheld without the application or enforcement of the city development regulation outside the jurisdiction of the city. The certification may be evidenced by a signed statement of the parties on any development approval.
- In case any building, structure, site, area, or object designated as a historic landmark or located within a historic district designated pursuant to this Chapter is about to be demolished whether as the result of deliberate neglect or otherwise, materially altered, remodeled, removed, or destroyed, except in compliance with the development regulation or other provisions of this Chapter, the local government, the historic preservation commission, or other party aggrieved by such action may institute any appropriate action or proceedings to prevent such unlawful demolition, destruction, material alteration, remodeling, or removal, to restrain, correct, or abate such violation, or to prevent any illegal act or conduct with respect to such building, structure, site, area, or object. Such remedies shall be in addition to any others authorized by this Chapter for violation of an ordinance.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-405. Appeals of administrative decisions.
- Appeals. - Except as provided in G.S. 160D-1403.1, appeals of administrative decisions made by the staff under this Chapter shall be made to the board of adjustment unless a different board is provided or authorized otherwise by statute or an ordinance adopted pursuant to this Chapter. If this function of the board of adjustment is assigned to any other board pursuant to G.S. 160D-302(b), that board shall comply with all of the procedures and processes applicable to a board of adjustment hearing appeals. Appeal of a decision made pursuant to an erosion and sedimentation control regulation, a stormwater control regulation, or a provision of the housing code shall not be made to the board of adjustment unless required by a local government ordinance or code provision.
- Standing. - Any person who has standing under G.S. 160D-1402(c) or the local government may appeal an administrative decision to the board. An appeal is taken by filing a notice of appeal with the local government clerk or such other local government official as designated by ordinance. The notice of appeal shall state the grounds for the appeal.
- Repealed by Session Laws 2020-25, s. 10, effective June 19, 2020.
- Time to Appeal. - The owner or other party has 30 days from receipt of the written notice of the determination within which to file an appeal. Any other person with standing to appeal has 30 days from receipt from any source of actual or constructive notice of the determination within which to file an appeal. In the absence of evidence to the contrary, notice given pursuant to G.S. 160D-403(b) by first-class mail is deemed received on the third business day following deposit of the notice for mailing with the United States Postal Service.
- Record of Decision. - The official who made the decision shall transmit to the board all documents and exhibits constituting the record upon which the decision appealed from is taken. The official shall also provide a copy of the record to the appellant and to the owner of the property that is the subject of the appeal if the appellant is not the owner.
- Stays. - An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from and accrual of any fines assessed during the pendency of the appeal to the board of adjustment and any subsequent appeal in accordance with G.S. 160D-1402 or during the pendency of any civil proceeding authorized by law or appeals therefrom, unless the official who made the decision certifies to the board after notice of appeal has been filed that, because of the facts stated in an affidavit, a stay would cause imminent peril to life or property or, because the violation is transitory in nature, a stay would seriously interfere with enforcement of the development regulation. In that case, enforcement proceedings are not stayed except by a restraining order, which may be granted by a court. If enforcement proceedings are not stayed, the appellant may file with the official a request for an expedited hearing of the appeal, and the board shall meet to hear the appeal within 15 days after the request is filed.
- Alternative Dispute Resolution. - The parties to an appeal that has been made under this section may agree to mediation or other forms of alternative dispute resolution. The development regulation may set standards and procedures to facilitate and manage such voluntary alternative dispute resolution.
- No Estoppel. - G.S. 160D-1403.2, limiting a local government's use of the defense of estoppel, applies to proceedings under this section.
Notwithstanding any other provision of this section, appeals of decisions granting a development approval or otherwise affirming that a proposed use of property is consistent with the development regulation does not stay the further review of an application for development approvals to use the property; in these situations, the appellant or local government may request and the board may grant a stay of a final decision of development approval applications, including building permits affected by the issue being appealed.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 10, 50(b), 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 50(b), effective June 19, 2020, provides: "Sections 5, 10, 14, 16, 17, 18, 45, 46, 47, [which amended or enacted 160D-108, 160D-108.1, 160D-405, 160D-603, 160D-703, 160D-705, 160D-706, 160D-1402, 160D-1403.1, 160D-1403.2, respectively] and the amendments to G.S. 160D-1405(c) in Section 48 incorporate in Chapter 160D of the General Statutes the provisions of Sections 1.2, 1.3, 1.6, 1.7, 1.8, 1.9, 1.10, 1.12, 1.13, 1.14, 1.15, and 1.17 of S.L. 2019-111 [which amended or enacted former 160A-360.1, 153A-320.1, 160A-385, 160A-385.1, 153A-344, 153A-344.1, 160A-388, 160A-393.1, 160A-364.1, 160A-393, 160A-393.2, 160A-381, 153A-340, 160A-382, 153A-342, 153A-346, and 160A-390, respectively], clarify and restate the intent of existing law, and apply to ordinances adopted before, on, and after the effective date of this act."
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 10, effective June 19, 2020, substituted "G.S. 160D-1403.1" for "subsection (c) of this section" in subsection (a); deleted subsection (c), which read: "Judicial Challenge. - A person with standing may bring a separate and original civil action to challenge the constitutionality of an ordinance or development regulation, or whether the ordinance or development regulation is ultra vires, preempted, or otherwise in excess of statutory authority, without filing an appeal under subsection (a) of this section."; in subsection (f), added "during the pendency of the appeal to the board of adjustment and any subsequent appeal in accordance with G.S. 160D-1402 or during the pendency of any civil proceeding authorized by law or appeals therefrom" in the first paragraph, substituted "Notwithstanding any other provision of this section" for "Notwithstanding the foregoing" in the second paragraph, and made minor stylistic changes; and added subsection (h).
§ 160D-406. Quasi-judicial procedure.
- Process Required. - Boards shall follow quasi-judicial procedures in determining appeals of administrative decisions, special use permits, certificates of appropriateness, variances, or any other quasi-judicial decision.
- Notice of Hearing. - Notice of evidentiary hearings conducted pursuant to this Chapter shall be mailed to the person or entity whose appeal, application, or request is the subject of the hearing; to the owner of the property that is the subject of the hearing if the owner did not initiate the hearing; to the owners of all parcels of land abutting the parcel of land that is the subject of the hearing; and to any other persons entitled to receive notice as provided by the local development regulation. In the absence of evidence to the contrary, the local government may rely on the county tax listing to determine owners of property entitled to mailed notice. The notice must be deposited in the mail at least 10 days, but not more than 25 days, prior to the date of the hearing. Within that same time period, the local government shall also prominently post a notice of the hearing on the site that is the subject of the hearing or on an adjacent street or highway right-of-way. The board may continue an evidentiary hearing that has been convened without further advertisement. If an evidentiary hearing is set for a given date and a quorum of the board is not then present, the hearing shall be continued until the next regular board meeting without further advertisement.
- Administrative Materials. - The administrator or staff to the board shall transmit to the board all applications, reports, and written materials relevant to the matter being considered. The administrative materials may be distributed to the members of the board prior to the hearing if at the same time they are distributed to the board a copy is also provided to the appellant or applicant and to the landowner if that person is not the appellant or applicant. The administrative materials shall become a part of the hearing record. The administrative materials may be provided in written or electronic form. Objections to inclusion or exclusion of administrative materials may be made before or during the hearing. Rulings on unresolved objections shall be made by the board at the hearing.
- Presentation of Evidence. - The applicant, the local government, and any person who would have standing to appeal the decision under G.S. 160D-1402(c) shall have the right to participate as a party at the evidentiary hearing. Other witnesses may present competent, material, and substantial evidence that is not repetitive as allowed by the board.
- Appearance of Official New Issues. - The official who made the decision or the person currently occupying that position, if the decision maker is no longer employed by the local government, shall be present at the evidentiary hearing as a witness. The appellant shall not be limited at the hearing to matters stated in a notice of appeal. If any party or the local government would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the board shall continue the hearing.
- Oaths. - The chair of the board or any member acting as chair and the clerk to the board are authorized to administer oaths to witnesses in any matter coming before the board. Any person who, while under oath during a proceeding before the board determining a quasi-judicial matter, willfully swears falsely is guilty of a Class 1 misdemeanor.
- Subpoenas. - The board making a quasi-judicial decision under this Chapter through the chair or, in the chair's absence, anyone acting as chair may subpoena witnesses and compel the production of evidence. To request issuance of a subpoena, the applicant, the local government, and any person with standing under G.S. 160D-1402(c) may make a written request to the chair explaining why it is necessary for certain witnesses or evidence to be compelled. The chair shall issue requested subpoenas he or she determines to be relevant, reasonable in nature and scope, and not oppressive. The chair shall rule on any motion to quash or modify a subpoena. Decisions regarding subpoenas made by the chair may be immediately appealed to the full board. If a person fails or refuses to obey a subpoena issued pursuant to this subsection, the board or the party seeking the subpoena may apply to the General Court of Justice for an order requiring that its subpoena be obeyed, and the court shall have jurisdiction to issue these orders after notice to all proper parties.
- Appeals in Nature of Certiorari. - When hearing an appeal pursuant to G.S. 160D-947(e) or any other appeal in the nature of certiorari, the hearing shall be based on the record below, and the scope of review shall be as provided in G.S. 160D-1402(j).
- Voting. - The concurring vote of four-fifths of the board shall be necessary to grant a variance. A majority of the members shall be required to decide any other quasi-judicial matter or to determine an appeal made in the nature of certiorari. For the purposes of this subsection, vacant positions on the board and members who are disqualified from voting on a quasi-judicial matter under G.S. 160D-109(d) shall not be considered members of the board for calculation of the requisite majority if there are no qualified alternates available to take the place of such members.
- Decisions. - The board shall determine contested facts and make its decision within a reasonable time. When hearing an appeal, the board may reverse or affirm, wholly or partly, or may modify the decision appealed from and shall make any order, requirement, decision, or determination that ought to be made. The board shall have all the powers of the official who made the decision. Every quasi-judicial decision shall be based upon competent, material, and substantial evidence in the record. Each quasi-judicial decision shall be reduced to writing, reflect the board's determination of contested facts and their application to the applicable standards, and be approved by the board and signed by the chair or other duly authorized member of the board. A quasi-judicial decision is effective upon filing the written decision with the clerk to the board or such other office or official as the development regulation specifies. The decision of the board shall be delivered within a reasonable time by personal delivery, electronic mail, or first-class mail to the applicant, landowner, and any person who has submitted a written request for a copy prior to the date the decision becomes effective. The person required to provide notice shall certify to the local government that proper notice has been made, and the certificate shall be deemed conclusive in the absence of fraud.
- Judicial Review. - Every quasi-judicial decision shall be subject to review by the superior court by proceedings in the nature of certiorari pursuant to G.S. 160D-1402. Appeals shall be filed within the times specified in G.S. 160D-1405(d).
Objections regarding jurisdictional and evidentiary issues, including, but not limited to, the timeliness of an appeal or the standing of a party, may be made to the board. The board chair shall rule on any objections, and the chair's rulings may be appealed to the full board. These rulings are also subject to judicial review pursuant to G.S. 160D-1402. Objections based on jurisdictional issues may be raised for the first time on judicial review.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
ARTICLE 5. Planning.
Sec.
§ 160D-501. Plans.
- Requirements for Zoning. - As a condition of adopting and applying zoning regulations under this Chapter, a local government shall adopt and reasonably maintain a comprehensive plan or land-use plan.
- Plans. - A comprehensive plan sets forth goals, policies, and programs intended to guide the present and future physical, social, and economic development of the jurisdiction. A land-use plan uses text and maps to designate the future use or reuse of land. A comprehensive or land-use plan is intended to guide coordinated, efficient, and orderly development within the planning and development regulation jurisdiction based on an analysis of present and future needs.
-
Comprehensive Plan Contents. - A comprehensive plan may, among other topics, address any of the following as determined by the local government:
- Issues and opportunities facing the local government, including consideration of trends, values expressed by citizens, community vision, and guiding principles for growth and development.
- The pattern of desired growth and development and civic design, including the location, distribution, and characteristics of future land uses, urban form, utilities, and transportation networks.
- Employment opportunities, economic development, and community development.
- Acceptable levels of public services and infrastructure to support development, including water, waste disposal, utilities, emergency services, transportation, education, recreation, community facilities, and other public services, including plans and policies for provision of and financing for public infrastructure.
- Housing with a range of types and affordability to accommodate persons and households of all types and income levels.
- Recreation and open spaces.
- Mitigation of natural hazards such as flooding, winds, wildfires, and unstable lands.
- Protection of the environment and natural resources, including agricultural resources, mineral resources, and water and air quality.
- Protection of significant architectural, scenic, cultural, historical, or archaeological resources.
- Analysis and evaluation of implementation measures, including regulations, public investments, and educational programs.
- Adoption and Effect of Plans. - Plans shall be adopted by the governing board with the advice and consultation of the planning board. Adoption and amendment of a comprehensive or land-use plan is a legislative decision and shall follow the process mandated for zoning text amendments set by G.S. 160D-601. Plans adopted under this Chapter may be undertaken and adopted as part of or in conjunction with plans required under other statutes, including, but not limited to, the plans required by G.S. 113A-110. Plans adopted under this Chapter shall be advisory in nature without independent regulatory effect. Plans adopted under this Chapter do not expand, diminish, or alter the scope of authority for development regulations adopted under this Chapter. Plans adopted under this Chapter shall be considered by the planning board and governing board when considering proposed amendments to zoning regulations as required by G.S. 160D-604 and G.S. 160D-605.
Planning analysis may address inventories of existing conditions and assess future trends regarding demographics and economic, environmental, and cultural factors. The planning process shall include opportunities for citizen engagement in plan preparation and adoption.
A local government may prepare and adopt other plans as deemed appropriate. This may include, but is not limited to, small area plans, neighborhood plans, hazard mitigation plans, transportation plans, housing plans, and recreation and open space plans.
If a plan is deemed amended by G.S. 160D-605 by virtue of adoption of a zoning amendment that is inconsistent with the plan, that amendment shall be noted in the plan. However, if the plan is one that requires review and approval subject to G.S. 113A-110, the plan amendment shall not be effective until that review and approval is completed.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 11, 51(a), (b), (d).)
Editor's Note. - Session Laws 2019-111, s. 2.9(a), provides: "Any otherwise valid permit or development approval made prior to January 1, 2021, shall not be invalid based on inconsistency with the provisions of this act. The validity of any plan adopted prior to January 1, 2021, is not affected by a failure to comply with the procedural requirements of G.S. 160D-5-1(b)."
Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 11, effective June 19, 2020, redesignated subsection (a) as subsections (a) and (a1), and rewrote both; added "Comprehensive Plan" to the heading of subsection (b); and added "or land-use" in the second sentence of subsection (c).
§ 160D-502. Grants, contracts, and technical assistance.
- Grants and Services. - A local government may accept, receive, and disburse in furtherance of its functions any funds, grants, and services made available by the federal government and its agencies, the State government and its agencies, any local government and its agencies, and any private and civic sources. A local government may enter into and carry out contracts with the State and federal governments or any agencies thereof under which financial or other planning assistance is made available to the local government and may agree to and comply with any reasonable conditions that are imposed upon such assistance.
- Contracts. - Any local government may enter into and carry out contracts with any other city, county, or regional council, planning agency, or private consultant under which it agrees to furnish technical planning assistance to the other local government or planning agency. Any local government may enter into and carry out contracts with any other city, county, or regional council or planning agency under which it agrees to pay the other local government for technical planning assistance.
- Appropriations, Compensation, and Financing. - A local government is authorized to make appropriations that may be necessary to carry out activities or contracts authorized by this Article or to support and compensate members of a planning board that it may create pursuant to this Chapter and to levy taxes for these purposes as a necessary expense.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-503. Coordination of planning.
A local government may undertake any of the planning activities authorized by this Article in coordination with other local governments, State agencies, or regional agencies created under Article 19 of Chapter 153A of the General Statutes or Article 20 of Chapter 160A of the General Statutes.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
ARTICLE 6. Development Regulation.
Sec.
§ 160D-601. Procedure for adopting, amending, or repealing development regulations.
- Hearing with Published Notice. - Before adopting, amending, or repealing any ordinance or development regulation authorized by this Chapter, the governing board shall hold a legislative hearing. A notice of the hearing shall be given once a week for two successive calendar weeks in a newspaper having general circulation in the area. The notice shall be published the first time not less than 10 days nor more than 25 days before the date scheduled for the hearing. In computing such period, the day of publication is not to be included but the day of the hearing shall be included.
- Notice to Military Bases. - If the adoption or modification would result in changes to the zoning map or would change or affect the permitted uses of land located five miles or less from the perimeter boundary of a military base, the local government shall provide written notice of the proposed changes by certified mail, return receipt requested, to the commander of the military base not less than 10 days nor more than 25 days before the date fixed for the hearing. If the commander of the military base provides comments or analysis regarding the compatibility of the proposed development regulation or amendment with military operations at the base, the governing board of the local government shall take the comments and analysis into consideration before making a final determination on the ordinance.
- Ordinance Required. - A development regulation adopted pursuant to this Chapter shall be adopted by ordinance.
-
Down-Zoning. - No amendment to zoning regulations or a zoning map that down-zones property shall be initiated nor is it enforceable without the written consent of all property owners whose property is the subject of the down-zoning amendment, unless the
down-zoning amendment is initiated by the local government. For purposes of this section, "down-zoning" means a zoning ordinance that affects an area of land in one of the following ways:
- By decreasing the development density of the land to be less dense than was allowed under its previous usage.
- By reducing the permitted uses of the land that are specified in a zoning ordinance or land development regulation to fewer uses than were allowed under its previous usage.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 12, 50(a), 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 50(a), provides: "Sections 12 and 13 [which amended G.S. 160D-601 and G.S. 160D-602, respectively] incorporate in Chapter 160D of the General Statutes the provisions of Sections 1.4 and 1.5 of S.L. 2019-111 [which amended former G.S. 160A-384 and G.S. 153A-343, respectively] and apply to applications for down-zoning amendments and for driveway improvements submitted on or after July 11, 2019, and to appeals from decisions related to such applications filed on or after that date."
Session Laws 2020-25, s. 51(b), effective June 19, 2020, provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 12, effective June 19, 2020, added the subsection (c) heading; and added subsection (d).
Legal Periodicals. - For note on historic district zoning, see 16 Wake Forest L. Rev. 495 (1980).
CASE NOTES
- I. In General.
- II. Decisions Under Former G.S. 153A-323 and Former G.S. 153A-343.
- III. Decisions Under Former G.S. 160A-364.
- IV. Decisions Under Former G.S. 160A-385.
I. IN GENERAL.
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 153A-323, 153A-343, 160A-364, 160A-385, and prior law.
II. DECISIONS UNDER FORMER G.S. 153A-323 AND FORMER G.S. 153A-343.
Editor's Note. - The following cases were decided under former G.S. 153A-323, former G.S. 153A-343, and prior law.
The requirement that a public hearing be conducted is mandatory. Freeland v. Orange County, 273 N.C. 452, 160 S.E.2d 282 (1968); Orange County v. Heath, 278 N.C. 688,
180 S.E.2d 810 (1971).
Hearing and Opportunity to Present Views Intended. - The manifest intention of the General Assembly was that a public hearing be conducted at which those who opposed and those who favored adoption of the ordinance would have a fair opportunity to present
their respective views. Freeland v. Orange County, 273 N.C. 452, 160 S.E.2d 282 (1968); Orange County v. Heath, 278 N.C. 688, 180 S.E.2d
810 (1971).
Standing. - Owner had standing to challenge the Buncombe County, N.C. Multi-Family Dwelling Ordinance (Ordinance) because the owner's attack on the Ordinance was not an "as-applied" challenge, but rather was an attack on the county's failure to comply
with G.S. 153A-323 in enacting the ordinance; thus, the owner's challenge was an attack on the Ordinance's procedural enactment, the owner's use of its land was limited by the zoning regulations, and the owner had standing.
Thrash Ltd. P'ship v. County of Buncombe, 195 N.C. App. 727, 673 S.E.2d 689 (2009).
County commissioners are not required to hear all persons in attendance without limitation as to number and time. Freeland v. Orange County, 273 N.C. 452, 160 S.E.2d 282 (1968).
Nor to Answer Questions. - The county commissioners are not required to answer questions asked by those in attendance at the public meeting. Freeland v. Orange County, 273 N.C. 452, 160 S.E.2d 282
(1968).
Repetition of Same Views Not Contemplated. - The General Assembly did not contemplate that all persons entertaining the same views would have an unqualified right to iterate and reiterate these views in endless repetition. Freeland v. Orange County,
273 N.C. 452, 160 S.E.2d 282 (1968).
Notice of Hearing. - It was error for a trial court to find there was no fact issue as to a county's violation of requirements to provide notice of a zoning hearing because a county employee's certification that notice was sent was conclusive, absent
fraud, which was not shown. Good Neighbors of Ore. Hill Protecting Prop. Rights v. Cnty. of Rockingham, 242 N.C. App. 280, 774 S.E.2d 902 (2015).
Notice Requirements Could Not Be Avoided by Citing to Police Powers. - Trial court erred in granting a county's summary judgment motion and in denying a property owner's summary judgment motion where: (1) an ordinance prohibiting heavy industry was enacted after the county was enjoined from enforcing a moratorium on the issuance of building permits in the same area, (2) the moratorium was covered by N.C. Gen. Stat. ch. 153A, art. 18 as it dealt with the issuance of building permits, (3) the county could not avoid the notice requirements G.S. 153A-323, by stating that the moratorium was enacted pursuant to the police powers under G.S. 153A-121, and (4) although the county complied with the notice requirements before enacting the ordinance, the county had already been ordered to issue the building permit. Sandy Mush Props., Inc. v. Rutherford County, 164 N.C. App. 162, 595 S.E.2d 233 (2004).
County's failure to comply with G.S. 153A-323 in enacting the Buncombe County, N.C. Multi-Family Dwelling Ordinance (Ordinance) rendered the ordinance invalid; although the county claimed that the Ordinance was adopted in the exercise of its general police
power pursuant to G.S. 153A-121, the Ordinance substantially affected land use, was therefore a zoning ordinance, and the county was not permitted to evade the legislative notice requirements imposed by G.S. 153A-323 by labeling
the Ordinance an exercise of police power. Thrash Ltd. P'ship v. County of Buncombe, 195 N.C. App. 727, 673 S.E.2d 689 (2009).
Failure to Comply with Notice Requirements. - Where there was no notice to the public or advertised public hearing prior to adoption of the ordinance as required by this section; the trial court's conclusion that the ordinance passed by the board imposing a moratorium on building permits pending zoning was invalid. Vulcan Materials Co. v. Iredell County, 103 N.C. App. 779, 407 S.E.2d 283 (1991).
A county ordinance that imposed a moratorium on the issuance of building permits dealing with the construction of heavy industry was invalid, because notice was not given once a week for two successive weeks before the public hearing on the ordinance was held as was required under G.S. 153A-323, and instead notice was only published once. Sandy Mush Props., Inc. v. Rutherford County, 160 N.C. App. 683, 586 S.E.2d 849 (2003).
County's claim that it did not have to issue notice in compliance with G.S. 153A-323 because the ordinance, imposing a moratorium on the issuance of building permits for the construction or operation of heavy industry, was enacted pursuant to the county's
police power under G.S. 153A-121, failed. Sandy Mush Props., Inc. v. Rutherford County, 160 N.C. App. 683, 586 S.E.2d 849 (2003).
III. DECISIONS UNDER FORMER G.S. 160A-364.
Editor's Note. - The following cases were decided under former G.S. 160A-364 and prior law.
Notice Must Reveal Nature and Character of Proposed Action. - To be adequate, the notice of public hearing required by this section must fairly and sufficiently apprise those whose rights may be affected of the nature and character of the action proposed.
Sellers v. City of Asheville, 33 N.C. App. 544, 236 S.E.2d 283 (1977).
G.S. 160A-364 plainly states that it is the "city council" that shall hold a public hearing and that it is notice of that public hearing which must be given; this language in no way permits the argument that notice can somehow be given for a hearing before a body other than a city council in order to satisfy the statute. Molamphy v. Town of S. Pines, - F. Supp. 2d - (M.D.N.C. Mar. 3, 2004).
Notice Held Adequate. - Where defendant's published notice of zoning action stated that village would consider extending its extraterritorial zoning jurisdiction, and metes and bounds description included land owned by plaintiff, that description put
plaintiff on notice that changes would be made affecting its property. Pinehurst Area Realty, Inc. v. Village of Pinehurst, 100 N.C. App. 77, 394 S.E.2d 251 (1990), review
denied and appeal dismissed, 328 N.C. 92, 402 S.E.2d 417, cert. denied, 501 U.S. 1251, 111 S. Ct. 2890, 115 L. Ed. 2d 1055 (1991).
Notices Held Inadequate. - Where none of the notices published pursuant to this section informed the public that the city intended, for the first time in its history, to make its zoning ordinance applicable to property outside its city limits, the notices were not in compliance with this section, since they failed adequately to alert owners of property outside the city that their rights might be affected. Sellers v. City of Asheville, 33 N.C. App. 544, 236 S.E.2d 283 (1977).
Amendment to a town's development ordinance, which would have prohibited convenience stores in certain zoning districts, was invalid under G.S. 160A-364 and under the development ordinance itself because the pre-adoption notice did not satisfy requirements for adequacy of description and publication; the fact that the landowner who challenged the amendment had actual notice prior to adoption did not prevent the amendment from being void. Molamphy v. Town of S. Pines, - F. Supp. 2d - (M.D.N.C. Mar. 3, 2004).
Zoning Ordinance Held Void. - Plaintiff town did not satisfy requirements of G.S. 160A-360 and this section where its notice of a public hearing failed to apprise defendants, or any other property owners within the affected area, of the nature and character
of proposed actions to exert extraterritorial jurisdiction, failed to describe in any way the area in question, and failed to comport with the clear requirements of this section in that it was not published in two successive
calendar weeks, and where, furthermore, plaintiff's ordinance was adopted in a proceeding held over eight months subsequent to its initial hearing, and without either further public hearing or notice, and plaintiff never recorded
a boundary description as required by G.S. 160A-360(b); therefore, the court correctly ruled plaintiff's extraterritorial zoning ordinance void and ineffective as against defendants. Town of Swansboro v. Odum,
96 N.C. App. 115, 384 S.E.2d 302 (1989).
IV. DECISIONS UNDER FORMER G.S. 160A-385.
Editor's Note. - The following cases were decided under former G.S. 160A-385 and prior law.
Applicability of 1985 Amendment. - The 1985 amendment to this section did not apply to case in which town issued its certificate to petitioner on June 3, 1982, and amendment to town's zoning ordinance was adopted June 14, 1982, more than three years before
the effective date of the amendment. Issuance of Cama Minor Dev. Permit No. 82-0010 v. Town of Bath, 82 N.C. App. 32, 345 S.E.2d 699 (1986).
Rezoning is a legislative act, whereas a proceeding to grant a variance or special use permit is quasi-judicial in nature. Sherrill v. Town of Wrightsville Beach, 81 N.C. App. 369, 344 S.E.2d 357,
cert. denied and appeal dismissed, 318 N.C. 417, 349 S.E.2d 600 (1986).
As to showing necessity to invalidate zoning ordinance on constitutional grounds, see Sherrill v. Town of Wrightsville Beach, 81 N.C. App. 369, 344 S.E.2d 357, cert. denied and appeal dismissed,
318 N.C. 417, 349 S.E.2d 600 (1986).
The enactment of a zoning ordinance is not a contract with the property owners of the city and confers upon them no vested right to have the ordinance remain forever in force or to demand that the boundaries of each zone or the uses to be made of property in each zone remain as declared in the original ordinance. Such legislation by the city may be repealed in its entirety, or amended as the city's legislative body determines from time to time to be in the best interests of the public, subject only to the limitations of the enabling statute and the limitations of the Constitution. Zopfi v. City of Wilmington, 273 N.C. 430, 160 S.E.2d 325 (1968).
A comprehensive zoning ordinance does not constitute a contract between a municipality and the property owners which precludes the municipality from changing the boundaries if at a later date it deems a change to be desirable, nor does it vest in any property owner the right that the restrictions imposed by it upon his property or the property of others should remain unaltered. Allgood v. Town of Tarboro, 281 N.C. 430, 189 S.E.2d 255 (1972).
A city may, from time to time, amend its zoning ordinance so as to transfer an area from one use district into another, since the enactment of a zoning ordinance is not a contract by the city with property owners to maintain the zoning pattern thereby
established. Blades v. City of Raleigh, 280 N.C. 531, 187 S.E.2d 35 (1972).
A city's legislative body has authority to rezone property when it is reasonably necessary to do so in the interests of the public health, the public safety, the public morals or the public welfare. Ordinarily, the only limitation upon this legislative
authority is that it may not be exercised arbitrarily or capriciously. Allred v. City of Raleigh, 277 N.C. 530, 178 S.E.2d 432 (1971).
Subject to Enabling Act and Constitutional Limitations. - Zoning regulations may be amended or changed when the action is authorized by the enabling statute and does not contravene constitutional limitations on the zoning power. Allgood v. Town of Tarboro, 281 N.C. 430, 189 S.E.2d 255 (1972).
A municipality's authority to enact and amend zoning ordinances is subject to the limitations imposed by the enabling statute and by the Constitution. These limitations forbid arbitrary and unduly discriminating interference with property rights in the
exercise of such power. Thus, a zoning ordinance or an amendment thereto which is not adopted in accordance with the enabling statute is invalid and ineffective. Keiger v. Winston-Salem Bd. of Adjustment,
281 N.C. 715, 190 S.E.2d 175 (1972).
Ordinances enacted under this section must relate rationally to valid police power objective of promoting the health, safety, morals, or general welfare of the public. Wenco Mgt. Co. v. Town of Carrboro, 53 N.C. App. 480, 281 S.E.2d 74 (1981).
Arbitrary and Unduly Discriminatory Interference Not Permitted. - Zoning regulations may be amended or changed, but constitutional limitations forbid arbitrary and unduly discriminatory interference with property rights in the exercise of such power. Allgood v. Town of Tarboro, 281 N.C. 430, 189 S.E.2d 255 (1972).
Towns exercising authority pursuant to this section are subject to constitutional limitations against arbitrary and unduly discriminatory interference with the rights of property owners. Wenco Mgt. Co. v. Town of Carrboro,
53 N.C. App. 480, 281 S.E.2d 74 (1981).
Vested Rights Under Building Permit. - Issuance of a building permit creates no vested right to build contrary to the provisions of a subsequently enacted zoning ordinance, unless the permittee, acting in good faith, has made substantial expenditures in reliance upon the permit at a time when they did not violate declared public policy. Keiger v. Winston-Salem Bd. of Adjustment, 281 N.C. 715, 190 S.E.2d 175 (1972).
When, at the time a builder obtains a permit, he has knowledge of a pending ordinance which would make the authorized construction a nonconforming use and thereafter hurriedly makes expenditures in an attempt to acquire a vested right before the law can be changed, he does not act in good faith and acquires no rights under the permit. Keiger v. Winston-Salem Bd. of Adjustment, 281 N.C. 715, 190 S.E.2d 175 (1972).
Plaintiffs acquired vested rights under this section by virtue of the issuance of building permit by town, which the North Carolina General Assembly prohibited interference with by subsequent governmental action. Browning-Ferris Indus. of S. Atl., Inc. v. Wake County, 905 F. Supp. 312 (E.D.N.C. 1995).
Vested Rights Under Common Law. - Regardless of whether subsection (b) and G.S. 160A-385.1 were applicable, under North Carolina common law, plaintiffs' rights to develop tract of land had vested where plaintiffs incurred substantial expenditures in reliance on site plan approval and the issuance of building permit by town, and plaintiffs' efforts following the site plan approval were undertaken in good faith and under reasonable reliance on the validity of the approvals they had been granted. Browning-Ferris Indus. of S. Atl., Inc. v. Wake County, 905 F. Supp. 312 (E.D.N.C. 1995).
City Legislative Body May Not Disregard Fundamental Concepts of Zoning. - Notwithstanding that the motivation of the members of a city legislative body may be laudable, any action of that body that disregards the fundamental concepts of zoning as set
forth in the enabling legislation may be arbitrary and capricious. Allred v. City of Raleigh, 277 N.C. 530, 178 S.E.2d 432 (1971).
Amendment Need Not Accomplish All Purposes Specified in Enabling Act. - It is not required that an amendment to a zoning ordinance accomplish or contribute specifically to the accomplishment of all of the purposes specified in the enabling act. It is
sufficient that the legislative body of the city had reasonable ground upon which to conclude that one or more of those purposes would be accomplished or aided by the amending ordinance. Zopfi v. City of Wilmington,
273 N.C. 430, 160 S.E.2d 325 (1968).
Tract Must Be Suitable for All Uses Permitted Under New Classification. - The zoning of a tract of land may be changed from a residential classification to a less restrictive residential classification only if and when its location and the surrounding
circumstances are such that the property should be made available for all uses permitted in the less restrictive district. Allred v. City of Raleigh, 277 N.C. 530, 178
S.E.2d 432 (1971).
Rezoning must be effected by exercise of legislative power rather than special arrangements with the owner of a particular tract or parcel of land. Allred v. City of Raleigh, 277 N.C. 530, 178 S.E.2d 432 (1971).
Rezoning on consideration of assurances that a particular tract or parcel will be developed in accordance with restricted approved plans is not a permissible ground for placing the property in a zone where restrictions of the nature prescribed are not otherwise required or contemplated. Allred v. City of Raleigh, 277 N.C. 530, 178 S.E.2d 432 (1971).
The rezoning of residential property to a business use on condition that the land rezoned shall be devoted exclusively to the business use for which application to rezone was made, or otherwise remain residential, constitutes zoning without regard to
the public health, safety and welfare, concern for which is basic to that comprehensiveness contemplated in the enabling act. Allred v. City of Raleigh, 277 N.C. 530,
178 S.E.2d 432 (1971).
Determining Validity of Amending Ordinance. - The basic rule to determine the validity of an amending ordinance is the same rule used to determine the validity of the original ordinance. The legislative body must act in good faith. It cannot act arbitrarily
or capriciously. If the conditions existing at the time of the proposed change are such as would have originally justified the proposed action, the legislative body has the power to act. Allred v. City of Raleigh,
7 N.C. App. 602, 173 S.E.2d 533 (1970), rev'd on other grounds, 277 N.C. 530, 178 S.E.2d 432 (1971).
Inquiry Is Whether Amendment Is Beyond Legislative Power of City. - The relevant inquiry is always whether the amending ordinance is beyond the legislative power of the city. If it is not, the area rezoned becomes a legitimate part of the original comprehensive
zoning plan of the city. Allred v. City of Raleigh, 7 N.C. App. 602, 173 S.E.2d 533 (1970), rev'd on other grounds, 277 N.C. 530, 178 S.E.2d
432 (1971).
Effect of Unlawful Amending Ordinance. - If the amending ordinance is beyond the legislative power of the city, whether for the reason that it constitutes spot zoning or on some other ground, its adoption does not remove the designated area from the effect
of the comprehensive zoning ordinance previously enacted. In that event, the proposed use remains unlawful, and the right of owners of adjoining property to enjoin such use is not affected by the amending ordinance. Zopfi v.
City of Wilmington, 273 N.C. 430, 160 S.E.2d 325 (1968).
Invalid Permit Does Not Qualify for Statutory Rights. - Superior court did not err in affirming the decision of a city zoning board of adjustment requiring a lessee to remove its billboard because the lessee's sign permit had expired before the lessee
renewed its building permit, and the lessee could not rely upon a mistakenly issued permit to establish vested rights in its nonconforming use of the property; an invalid permit does not qualify for statutory rights according
to the express language of G.S. 160A-385(b)(i). Morris Communs. Corp. v. City of Bessemer City Zoning Bd. of Adjustment, 202 N.C. App. 631, 689 S.E.2d 880 (2010), review
granted in part and review denied in part, 364 N.C. 321, 701 S.E.2d 668, 2010 N.C. LEXIS 801 (2010).
Permit May Not Be Denied Under Invalid Amendment. - An applicant's right to a permit, denied under an existing valid ordinance which entitled him to it, may not be defeated by a purported amendment which was void ab initio because it was not adopted as
required by the enabling statute. Keiger v. Winston-Salem Bd. of Adjustment, 281 N.C. 715, 190 S.E.2d 175 (1972).
Standing. - Landowners lacked standing to bring a declaratory judgment action challenging the city's interpretation of 2015 N.C. Sess. Laws ch. 160,
§
6, and the applicability of the Protest Petition Statute where the landowners conceded that they did not meet the G.S. 160A-385 requirements, and thus, they were not directly and adversely affected. Byron v. SYNCO
Props., 258 N.C. App. 372, 813 S.E.2d 455 (2018).
Burden on Complaining Party to Show Invalidity. - An amendment to a municipal zoning ordinance is presumed to be valid and the burden is on the complaining party to show its invalidity. Allgood v. Town of Tarboro, 281 N.C. 430,
189 S.E.2d 255 (1972).
Controversies in respect of facts pertinent to the validity of a rezoning ordinance present questions of fact for determination by the superior court judge. Allred v. City of Raleigh, 277 N.C. 530,
178 S.E.2d 432 (1971).
As to controlling effect of former similar section over a municipal ordinance, see Eldridge v. Mangum, 216 N.C. 532, 5 S.E.2d 721 (1939).
Super-Majority Did Not Support Zoning Request. - Superior court erred in overturning a town board of commissioners' decision to deny a property owner's conditional use zoning request because substantial evidence supported the board's decision, and the
superior court did not apply the whole record test property; a simple majority of the board supported the owner's proposed project, but the super-majority required by G.S. 160A-385(a)(1) did not. Coucoulas/Knight Props., LLC.
v. Town of Hillsborough, 199 N.C. App. 455, 683 S.E.2d 228 (2009), aff'd, 364 N.C. 127, 691 S.E.2d 411, 2010 N.C. LEXIS 341 (2010).
§ 160D-602. Notice of hearing on proposed zoning map amendments.
- Mailed Notice. - Subject to the limitations of this Chapter, an ordinance shall provide for the manner in which zoning regulations and the boundaries of zoning districts are to be determined, established, and enforced, and from time to time amended, supplemented, or changed, in accordance with the provisions of this Chapter. The owners of affected parcels of land and the owners of all parcels of land abutting that parcel of land shall be mailed a notice of the hearing on a proposed zoning map amendment by first-class mail at the last addresses listed for such owners on the county tax abstracts. For the purpose of this section, properties are "abutting" even if separated by a street, railroad, or other transportation corridor. This notice must be deposited in the mail at least 10 but not more than 25 days prior to the date of the hearing. If the zoning map amendment is being proposed in conjunction with an expansion of municipal extraterritorial planning and development regulation jurisdiction under G.S. 160D-202, a single hearing on the zoning map amendment and the boundary amendment may be held. In this instance, the initial notice of the zoning map amendment hearing may be combined with the boundary hearing notice and the combined hearing notice mailed at least 30 days prior to the hearing.
- Optional Notice for Large-Scale Zoning Map Amendments. - The first-class mail notice required under subsection (a) of this section is not required if the zoning map amendment proposes to change the zoning designation of more than 50 properties, owned by at least 50 different property owners, and the local government elects to use the expanded published notice provided for in this subsection. In this instance, a local government may elect to make the mailed notice provided for in subsection (a) of this section or, as an alternative, elect to publish notice of the hearing as required by G.S. 160D-601, provided that each advertisement shall not be less than one-half of a newspaper page in size. The advertisement is effective only for property owners who reside in the area of general circulation of the newspaper that publishes the notice. Property owners who reside outside of the newspaper circulation area, according to the address listed on the most recent property tax listing for the affected property, shall be notified according to the provisions of subsection (a) of this section.
- Posted Notice. - When a zoning map amendment is proposed, the local government shall prominently post a notice of the hearing on the site proposed for the amendment or on an adjacent public street or highway right-of-way. The notice shall be posted within the same time period specified for mailed notices of the hearing. When multiple parcels are included within a proposed zoning map amendment, a posting on each individual parcel is not required but the local government shall post sufficient notices to provide reasonable notice to interested persons.
- Repealed by Session Laws 2020-25, s. 13, effective June 19, 2020.
- Optional Communication Requirements. - When a zoning map amendment is proposed, a zoning regulation may require communication by the person proposing the map amendment to neighboring property owners and residents and may require the person proposing the zoning map amendment to report on any communication with neighboring property owners and residents.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 13, 50(a), 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 50(a), provides: "Sections 12 and 13 [which amended G.S. 160D-601 and G.S. 160D-602, respectively] incorporate in Chapter 160D of the General Statutes the provisions of Sections 1.4 and 1.5 of S.L. 2019-111 [which amended former G.S. 160A-384 and G.S. 153A-343, respectively] and apply to applications for down-zoning amendments and for driveway improvements submitted on or after July 11, 2019, and to appeals from decisions related to such applications filed on or after that date."
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 13, effective June 19, 2020, added "Subject to the limitations of this Chapter" at the beginning of subsection (a); deleted subsection (d); and made minor stylistic changes.
§ 160D-603. Citizen comments.
Subject to the limitations of this Chapter, zoning regulations may from time to time be amended, supplemented, changed, modified, or repealed. If any resident or property owner in the local government submits a written statement regarding a proposed amendment, modification, or repeal to a zoning regulation, including a text or map amendment that has been properly initiated as provided in G.S. 160D-601, to the clerk to the board at least two business days prior to the proposed vote on such change, the clerk to the board shall deliver such written statement to the governing board. If the proposed change is the subject of a quasi-judicial proceeding under G.S. 160D-705 or any other statute, the clerk shall provide only the names and addresses of the individuals providing written comment, and the provision of such names and addresses to all members of the board shall not disqualify any member of the board from voting.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 14, 50(b), 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 50(b), effective June 19, 2020, provides: "Sections 5, 10, 14, 16, 17, 18, 45, 46, 47, [which amended or enacted 160D-108, 160D-108.1, 160D-405, 160D-603, 160D-703, 160D-705, 160D-706, 160D-1402, 160D-1403.1, 160D-1403.2, respectively] and the amendments to G.S. 160D-1405(c) in Section 48 incorporate in Chapter 160D of the General Statutes the provisions of Sections 1.2, 1.3, 1.6, 1.7, 1.8, 1.9, 1.10, 1.12, 1.13, 1.14, 1.15, and 1.17 of S.L. 2019-111 [which amended or enacted former 160A-360.1, 153A-320.1, 160A-385, 160A-385.1, 153A-344, 153A-344.1, 160A-388, 160A-393.1, 160A-364.1, 160A-393, 160A-393.2, 160A-381, 153A-340, 160A-382, 153A-342, 153A-346, and 160A-390, respectively], clarify and restate the intent of existing law, and apply to ordinances adopted before, on, and after the effective date of this act."
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 14, effective June 19, 2020, added "that has been properly initiated as provided in G.S. 160D-601" in the middle of the second sentence.
§ 160D-604. Planning board review and comment.
- Initial Zoning. - In order to exercise zoning powers conferred by this Chapter for the first time, a local government shall create or designate a planning board under the provisions of this Article or a local act of the General Assembly. The planning board shall prepare or shall review and comment upon a proposed zoning regulation, including the full text of the regulation and maps showing proposed district boundaries. The planning board may hold public meetings and legislative hearings in the course of preparing the regulation. Upon completion, the planning board shall make a written recommendation regarding adoption of the regulation to the governing board. The governing board shall not hold its required hearing or take action until it has received a recommendation regarding the regulation from the planning board. Following its required hearing, the governing board may refer the regulation back to the planning board for any further recommendations that the board may wish to make prior to final action by the governing board in adopting, modifying and adopting, or rejecting the regulation.
- Zoning Amendments. - Subsequent to initial adoption of a zoning regulation, all proposed amendments to the zoning regulation or zoning map shall be submitted to the planning board for review and comment. If no written report is received from the planning board within 30 days of referral of the amendment to that board, the governing board may act on the amendment without the planning board report. The governing board is not bound by the recommendations, if any, of the planning board.
- Review of Other Ordinances and Actions. - Any development regulation other than a zoning regulation that is proposed to be adopted pursuant to this Chapter may be referred to the planning board for review and comment. Any development regulation other than a zoning regulation may provide that future proposed amendments of that ordinance be submitted to the planning board for review and comment. Any other action proposed to be taken pursuant to this Chapter may be referred to the planning board for review and comment.
- Plan Consistency. - When conducting a review of proposed zoning text or map amendments pursuant to this section, the planning board shall advise and comment on whether the proposed action is consistent with any comprehensive or land-use plan that has been adopted and any other officially adopted plan that is applicable. The planning board shall provide a written recommendation to the governing board that addresses plan consistency and other matters as deemed appropriate by the planning board, but a comment by the planning board that a proposed amendment is inconsistent with the comprehensive or land-use plan shall not preclude consideration or approval of the proposed amendment by the governing board. If a zoning map amendment qualifies as a "large-scale rezoning" under G.S. 160D-602(b), the planning board statement describing plan consistency may address the overall rezoning and describe how the analysis and policies in the relevant adopted plans were considered in the recommendation made.
- Separate Board Required. - Notwithstanding the authority to assign duties of the planning board to the governing board as provided by this Chapter, the review and comment required by this section shall not be assigned to the governing board and shall be performed by a separate board.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d); 2021-88, s. 1(c).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2021-88, s. 1(c), effective July 22, 2021, substituted "a local act” for "of a special act” and "the regulation” for "such regulation” in subsection (a); inserted "or land-use” two times in subsection (d); and substituted "shall be” for "must be” in subsection (e).
§ 160D-605. Governing board statement.
- Plan Consistency. - When adopting or rejecting any zoning text or map amendment, the governing board shall approve a brief statement describing whether its action is consistent or inconsistent with an adopted comprehensive or land-use plan. The requirement for a plan consistency statement may also be met by a clear indication in the minutes of the governing board that at the time of action on the amendment the governing board was aware of and considered the planning board's recommendations and any relevant portions of an adopted comprehensive or land-use plan. If a zoning map amendment is adopted and the action was deemed inconsistent with the adopted plan, the zoning amendment has the effect of also amending any future land-use map in the approved plan, and no additional request or application for a plan amendment is required. A plan amendment and a zoning amendment may be considered concurrently. The plan consistency statement is not subject to judicial review. If a zoning map amendment qualifies as a "large-scale rezoning" under G.S. 160D-602(b), the governing board statement describing plan consistency may address the overall rezoning and describe how the analysis and policies in the relevant adopted plans were considered in the action taken.
- Additional Reasonableness Statement for Rezonings. - When adopting or rejecting any petition for a zoning map amendment, a statement analyzing the reasonableness of the proposed rezoning shall be approved by the governing board. This statement of reasonableness may consider, among other factors, (i) the size, physical conditions, and other attributes of the area proposed to be rezoned, (ii) the benefits and detriments to the landowners, the neighbors, and the surrounding community, (iii) the relationship between the current actual and permissible development on the tract and adjoining areas and the development that would be permissible under the proposed amendment; (iv) why the action taken is in the public interest; and (v) any changed conditions warranting the amendment. If a zoning map amendment qualifies as a "large-scale rezoning" under G.S. 160D-602(b), the governing board statement on reasonableness may address the overall rezoning.
- Single Statement Permissible. - The statement of reasonableness and the plan consistency statement required by this section may be approved as a single statement.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d); 2021-88, s. 1(d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2021-88, s. 1(d), effective July 22, 2021, in subsection (a), inserted "or land-use” two times, and substituted "has the effect” for "shall have the effect” and "is required” for "shall be required.”
ARTICLE 7. Zoning Regulation.
Sec.
§ 160D-701. Purposes.
Zoning regulations shall be made in accordance with a comprehensive plan and shall be designed to promote the public health, safety, and general welfare. To that end, the regulations may address, among other things, the following public purposes: to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to lessen congestion in the streets; to secure safety from fire, panic, and dangers; to facilitate the efficient and adequate provision of transportation, water, sewerage, schools, parks, and other public requirements; and to promote the health, safety, morals, or general welfare of the community. The regulations shall be made with reasonable consideration, among other things, as to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the local government's planning and development regulation jurisdiction. The regulations may not include, as a basis for denying a zoning or rezoning request from a school, the level of service of a road facility or facilities abutting the school or proximately located to the school.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Legal Periodicals. - For comment, "Planned Unit Development and North Carolina Enabling Legislation," see 51 N.C.L. Rev. 1455 (1973).
For survey of 1979 property law, see 58 N.C.L. Rev. 1509 (1980).
For article, "Zoning for Direct Social Control," see 1982 Duke L.J. 761 (1982).
For article discussing a practical interpretation of North Carolina's comprehensive plan requirement for zoning regulations, see 7 Campbell L. Rev. 1 (1984).
For note, "'Souls Aren't Saved Just in Church Buildings: Defining ‘Religious Exercise' Under the Religious Land Use and Institutionalized Persons Act,” see 69 Duke L.J. 1353 (2020).
CASE NOTES
I. IN GENERAL.
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 153A-341, former G.S. 160A-383, and prior law.
II. DECISIONS UNDER FORMER G.S. 153A-341.
Editor's Note. - The following cases were decided under former G.S. 153A-341 and prior law.
In exercising their zoning authority, counties are limited in that they are required by statute to exercise their zoning regulations "with reasonable consideration to expansion and development of any cities within the county, so as to provide for their
orderly growth and development." Davidson County v. City of High Point, 321 N.C. 252, 362 S.E.2d 553 (1987).
Zoning generally must be accomplished in accordance with a comprehensive plan in order to promote the general welfare and serve the purposes of the enabling statute. Chrismon v. Guilford County, 85 N.C. App. 211, 354 S.E.2d 309 (1987), rev'd on other grounds, 322 N.C. 611, 370 S.E.2d 579 (1988).
The language of this section does not require an extensive written plan, such as a master plan based upon a comprehensive study; the ordinance itself may show that the zoning is comprehensive in nature. Willis v. Union County,
77 N.C. App. 407, 335 S.E.2d 76 (1985).
Zoning Amendments. - It is sufficient, if not necessary, for a governing board to adopt the statement that is required by G.S. 153A-341 contemporaneously with the adoption or rejection of a zoning amendment. Morgan v. Nash County, 224 N.C. App. 60, 735 S.E.2d 615 (2012).
Board of county commissioners did not violate G.S. 153A-341 by failing to adopt a statement of reasonableness prior to approving a zoning amendment, as it adopted the statement and amendment contemporaneously, and the statement reflected its reasoning
as to why the amendment was consistent with the controlling land use plan, reasonable, and in the public interest. Morgan v. Nash County, 224 N.C. App. 60, 735 S.E.2d
615 (2012).
Standing to Challenge Rezoning. - City lacked standing to challenge a county's rezoning because the city sought to prevent use of land as sprayfields, but subject property and sprayfields were separate tracts located several miles apart and the sprayfields were not rezoned; the disposal of treated wastewater would still have been allowed on the sprayfields despite a reversal of the second rezoning. Alleged injury was "conjectural or hypothetical" and insufficient to establish standing. Morgan v. Nash County, 222 N.C. App. 481, 731 S.E.2d 228 (2012).
City lacked standing to challenge a county's rezoning of certain property because 1) the land use the city sought to prevent was not made possible by the zoning amendment at issue; 2) the alleged injury was conjectural or hypothetical; and 3) the city's
property was three and a half miles from the rezoned property and thus was too remote to support a claim of standing. Morgan v. Nash County, 224 N.C. App. 60, 735 S.E.2d
615 (2012).
County Zoning Ordinance Enacted Arbitrarily and Capriciously. - County zoning ordinance was enacted arbitrarily and capriciously under G.S. 153A-340(a) and G.S. 153A-341; no mention of the county's comprehensive plan was made in the minutes of the meeting
at which the county adopted the ordinance, and some of the permitted uses in the area were not consistent with a rural community character. Town of Green Level v. Alamance County, 184 N.C. App. 665, 646 S.E.2d 851, review denied, 361 N.C. 704, 655 S.E.2d 402 (2007).
A county's legislative body has authority to rezone when reasonably necessary to do so in the interests of the public health, safety, morals or general welfare; ordinarily the only limitation upon this authority is that it may not be exercised arbitrarily
or capriciously. Willis v. Union County, 77 N.C. App. 407, 335 S.E.2d 76 (1985); Nelson v. City of Burlington, 80 N.C. App. 285, 341 S.E.2d
739 (1986).
A duly adopted rezoning ordinance is presumed to be valid, and the burden is upon the plaintiff to establish its invalidity. Nelson v. City of Burlington, 80 N.C. App. 285, 341 S.E.2d 739 (1986).
Statutes do not give a county authority over provision of sewer services within a city, or over newly annexed areas of the city which also lie in the county. Davidson County v. City of High Point, 321 N.C. 252,
362 S.E.2d 553 (1987).
Use of City-Owned Sewage Treatment Plant Without Prior Approval of County. - Since county had no authority to restrict or regulate city's provision of sewer service to its residents, the city could use city-owned sewage treatment plant located outside
the city but within the county, which was upgraded pursuant to the county's special use permit, with a condition attached to the permit requiring the county's prior approval of service to county citizens, to meet its statutory
mandate to provide sewer service to residents in newly annexed areas without seeking the county's prior approval, even though the facility was located in the county. Davidson County v. City of High Point,
321 N.C. 252, 362 S.E.2d 553 (1987).
Spot Zoning. - Because it zones a small area differently than a much larger area surrounding it, spot zoning, by definition, conflicts with the whole purpose of planned zoning. Therefore, unless there is a clear showing of a reasonable basis, spot zoning is beyond the authority of the county or municipality. Chrismon v. Guilford County, 85 N.C. App. 211, 354 S.E.2d 309 (1987), rev'd on other grounds, 322 N.C. 611, 370 S.E.2d 579 (1988); Alderman v. Chatham County, 89 N.C. App. 610, 366 S.E.2d 885, cert. denied, 323 N.C. 171, 373 S.E.2d 103 (1988).
When adopting a rezoning amendment, a board of county commissioners (board) did not engage in improper spot zoning because: (1) the board did not change the property's zoning classification or reclassify any other tract in the zoning district but merely
approved relocating an existing chemical vat to another location, and (2) any spot zoning challenge to the property's classification was not timely. McDowell v. Randolph Cty., 256 N.C. App. 708, 808 S.E.2d 513 (2017).
In determining whether rezoning was invalid as spot zoning, the courts have also considered the classification and development of nearby land. Alderman v. Chatham County, 89 N.C. App. 610, 366 S.E.2d
885, cert. denied, 323 N.C. 171, 373 S.E.2d 103 (1988).
Contract Zoning. - To avoid contract zoning, all the areas in each class must be subject to the same restrictions; if the rezoning is done in consideration of an assurance that a particular tract or parcel will be developed in accordance with a restricted plan, this is contract zoning and is illegal. Willis v. Union County, 77 N.C. App. 407, 335 S.E.2d 76 (1985).
That a board of county commissioners approved a rezoning application with the knowledge of a poultry processing company's interest in the subject property was not sufficient to establish that the board engaged in illegal contract zoning, as there was
no evidence that the board obligated itself to, or entered into a reciprocal agreement with, the landowners or processing company in exchange for approval of the rezoning application. Morgan v. Nash County,
224 N.C. App. 60, 735 S.E.2d 615 (2012).
All Permissible Uses Considered. - Board of county commissioners considered all of the permissible uses of the subject property before approving a zoning amendment, as the evidence established that: 1) each board member was provided with a list of all
permitted uses for the district; 2) the county planning director read aloud all permitted uses before the amendment was adopted; 3) the staff report to the board also included a complete list of the permitted uses; and 4) each
board member signed an affidavit averring that he or she considered all uses allowed in the zoning district being considered before casting his or her vote. Morgan v. Nash County, 224 N.C. App. 60, 735 S.E.2d 615 (2012).
Approval Improper. - Where county commissioners approved the rezoning application without considering the factors set out in this section, the Commissioners acted arbitrarily and capriciously. Gregory v. County of Harnett,
128 N.C. App. 161, 493 S.E.2d 786 (1997).
Finding of Zoning Consistency. - Copies of Planning Board minutes found with and without a statement of zoning consistency required by G.S. 153A-341 and Yadkin County, N.C. Zoning Ordinance art. 16, § 1, in rezoning land for a jail did not defeat a summary judgment that rezoning requirements were met because there was no requirement regarding the content of minutes. Sapp v. Yadkin County, 209 N.C. App. 430, 704 S.E.2d 909 (2011).
When adopting a rezoning amendment, a board of county commissioners (board) did not fail to adopt a valid statement of consistency with a growth management plan because the board, based on information from a public hearing, found the rezoning consistent
with the plan and reasonable and in the public interest. McDowell v. Randolph Cty., 256 N.C. App. 708, 808 S.E.2d 513 (2017).
Ordinance Held Invalid. - Trial court erred in granting a county summary in developers action seeking, among other things, an order declaring an Adequate Public Facilities Ordinance (APFO) null and void because the ordinance fell outside of the county's legislatively granted zoning powers when although the county clearly sought to pursue the legislative objective of facilitating the efficient and adequate provision of schools, the APFO did not utilize any of the zoning powers enumerated in G.S. 153A-340; G.S. 153A-341 listed legislative objectives for the county's use of the zoning power, and included within the list was facilitation of the efficient and adequate provision of schools, but when construed in pari materia, the county's implementation of those legislative objectives were subject to the limitations of the enabling act. Union Land Owners Ass'n v. County of Union, 201 N.C. App. 374, 689 S.E.2d 504 (2009).
County lacked the authority under G.S. 153A-4, 153A-340, and 153A-341 to adopt an adequate public facilities ordinance (APFO) that effectively conditioned the approval of new residential construction projects on developers paying a fee to subsidize new
school construction, because the APFO was not a zoning ordinance. Lanvale Props., LLC v. County of Cabarrus, 366 N.C. 142, 731 S.E.2d 800 (2012).
III. DECISIONS UNDER FORMER G.S. 160A-383.
Editor's Note. - The following cases were decided under former G.S. 160A-383 and prior law.
The concept of zoning implies a restriction upon the owner's right to use a specific tract for a use profitable to him but detrimental to the value of other properties in the area, thus promoting the most appropriate use of land throughout the municipality,
considered as a whole. Blades v. City of Raleigh, 280 N.C. 531, 187 S.E.2d 35 (1972); Graham Court Assocs. v. Town Council, 53 N.C. App. 543, 281 S.E.2d 418 (1981).
City Legislative Body May Not Disregard Fundamental Concepts of Zoning. - Notwithstanding that the motivation of the members of a city legislative body may be laudable, any action of that body that disregards the fundamental concepts of zoning as set
forth in the enabling legislation may be arbitrary and capricious. Allred v. City of Raleigh, 277 N.C. 530, 178 S.E.2d 432 (1971).
Zoning ordinance deals basically with use, not ownership, of property. Graham Court Assocs. v. Town Council, 53 N.C. App. 543, 281 S.E.2d 418 (1981).
Zoning is the regulation by a municipality of the use of land within that municipality, and of the buildings and structures thereon, and is not regulation of the ownership of the land or structures. Graham Court Assocs. v. Town Council,
53 N.C. App. 543, 281 S.E.2d 418 (1981).
The matter of zoning is prospective because it in effect constitutes planning as to how a city or town will be developed in the future. Allred v. City of Raleigh, 7 N.C. App. 602, 173 S.E.2d 533
(1970), rev'd on other grounds, 277 N.C. 530, 178 S.E.2d 432 (1971).
Statement of Reasonableness. - Language of G.S. 160A-383 does not authorize an implied approval of a statement of reasonableness. Wally v. City of Kannapolis, 365 N.C. 449, 722 S.E.2d 481 (2012).
Compliance with G.S. 160A-383 requires more than a general declaration that the action comports with relevant law. G.S. 160A-383 explains that to meet the statutory requirements, an approved statement must describe whether the zoning amendment is consistent with any controlling land use plan and explain why it is reasonable and in the public interest. Wally v. City of Kannapolis, 365 N.C. 449, 722 S.E.2d 481 (2012).
While an approved statement of reasonableness is not subject to judicial review, G.S. 160A-383 does not prohibit review of whether a governing board approved a statement. Wally v. City of Kannapolis, 365 N.C. 449,
722 S.E.2d 481 (2012).
Statement of Consistency. - Trial court erred in granting summary judgment in favor of a city and two universities because, while it was undisputed that the city council formally adopted and approved a statement of consistency, the statement merely tracked the statutory language and could not reasonably be said to include an "explanation" as to why a proposed zoning amendment was reasonable and in the public interest under the plain meaning of that term. Atkinson v. City of Charlotte, 235 N.C. App. 1, 760 S.E.2d 395 (2014).
When adopting a rezoning amendment, a board of county commissioners (board) did not fail to adopt a valid statement of consistency with a growth management plan because the board, based on information from a public hearing, found the rezoning consistent
with the plan and reasonable and in the public interest. McDowell v. Randolph Cty., 256 N.C. App. 708, 808 S.E.2d 513 (2017).
A "comprehensive plan" is simply a plan which zones an entire town or city, as opposed to a limited portion thereof arbitrarily selected for zoning, in a manner which is calculated to achieve the purposes set forth by statute. Allred v. City of Raleigh,
7 N.C. App. 602, 173 S.E.2d 533 (1970), rev'd on other grounds, 277 N.C. 530, 178 S.E.2d 432 (1971).
All Permissible Uses Are Available Under Comprehensive Zoning. - One essential of a "comprehensive" zoning ordinance is that all uses permissible within a given classification are available as of right to the owner. Hall v. City of Durham,
88 N.C. App. 53, 362 S.E.2d 791 (1987), aff'd, 323 N.C. 293, 372 S.E.2d 564 (1988).
Zoning Preserves a Community's Character. - A comprehensive zoning plan is a means by which the character of the community is to be preserved although devoting the land to its most appropriate uses. Allred v. City of Raleigh,
7 N.C. App. 602, 173 S.E.2d 533 (1970), rev'd on other grounds, 277 N.C. 530, 178 S.E.2d 432 (1971).
Ordinance itself may show that zoning is comprehensive in nature. Allred v. City of Raleigh, 7 N.C. App. 602, 173 S.E.2d 533 (1970), rev'd on other grounds, 277 N.C. 530,
178 S.E.2d 432 (1971).
As to necessity for an extrinsic written plan, see Allred v. City of Raleigh, 7 N.C. App. 602, 173 S.E.2d 533 (1970), rev'd on other grounds, 277 N.C. 530, 178 S.E.2d
432 (1971).
As to purposes for which a municipal corporation may adopt a comprehensive zoning ordinance, as set forth in former statute, see Schloss v. Jamison, 262 N.C. 108, 136 S.E.2d 691 (1964).
Spot Zoning Defined. - Spot zoning arises where a small area, usually a single lot or a few lots, surrounded by other property of a similar nature, is placed arbitrarily in a different use zone from that to which the surrounding property is made subject. Zopfi v. City of Wilmington, 273 N.C. 430, 160 S.E.2d 325 (1968); Allred v. City of Raleigh, 7 N.C. App. 602, 173 S.E.2d 533 (1970), rev'd on other grounds, 277 N.C. 530, 178 S.E.2d 432 (1971).
A zoning ordinance, or amendment, which singles out and reclassifies a relatively small tract owned by a single person and surrounded by a much larger area uniformly zoned, so as to impose upon the small tract greater restrictions than those imposed upon
the larger area, or so as to relieve the small tract from restrictions to which the rest of the area is subjected, is called "spot zoning." Blades v. City of Raleigh, 280 N.C. 531,
187 S.E.2d 35 (1972).
Size of Area as Factor in Determining Existence of Spot Zoning. - While the size of an area is seldom solely determinative of the question of whether an ordinance constitutes spot zoning, it is a factor that few courts are prone to overlook. Allred v.
City of Raleigh, 7 N.C. App. 602, 173 S.E.2d 533 (1970), rev'd on other grounds, 277 N.C. 530, 178 S.E.2d 432 (1971).
Spot zoning is beyond authority of municipality or county absent a clear showing that a reasonable basis exists for such distinction. Blades v. City of Raleigh, 280 N.C. 531, 187 S.E.2d 35 (1972);
Lathan v. Union County Bd. of Comm'rs, 47 N.C. App. 357, 267 S.E.2d 30, cert. denied, 301 N.C. 92, 273 S.E.2d 298 (1980).
Abstention - Even if the instant court was to assume that plaintiffs had a property interest in building an auto park on the property, issues of fact precluded the granting of summary judgment on plaintiffs' substantive due process claim; the district court did not abuse the court's discretion concluding that Burford abstention was appropriate because the case involved difficult issues of state land use policy. MLC Auto., LLC v. Town of S. Pines, 532 F.3d 269 (4th Cir. 2008).
Subjection of Small Area to More Burdensome Restrictions. - When a small area is subjected, by spot zoning, to a more burdensome restriction than that applicable to surrounding property of like kind, the weight of authority is that the owner of the property
so subjected to discriminatory regulation may successfully attack the validity of the ordinance. Zopfi v. City of Wilmington, 273 N.C. 430, 160 S.E.2d 325 (1968); Allred
v. City of Raleigh, 7 N.C. App. 602, 173 S.E.2d 533 (1970), rev'd on other grounds, 277 N.C. 530, 178 S.E.2d 432 (1971).
Reclassification of Small Residential Area to Permit Commercial Use. - The rule denying the validity of spot zoning ordinances has been applied where a small area previously in a residential zone has been removed, by an amending ordinance, from such zone and reclassified to permit business or commercial use over the objection of adjoining owners of residential property. Zopfi v. City of Wilmington, 273 N.C. 430, 160 S.E.2d 325 (1968); Allred v. City of Raleigh, 7 N.C. App. 602, 173 S.E.2d 533 (1970), rev'd on other grounds, 277 N.C. 530, 178 S.E.2d 432 (1971).
An ordinance rezoning five acres of land from classification for single-family residences to a less restrictive classification constituted unlawful "spot zoning" where the rezoned property was surrounded by a very large area classified R-4 and extensively
developed by the construction and occupancy of single-family residences, and the record disclosed no reasonable basis for granting the owner of the tract freedom from restrictions imposed upon the owners of other properties
in the surrounding area. Blades v. City of Raleigh, 280 N.C. 531, 187 S.E.2d 35 (1972).
Owner Occupancy Ordinance. - Wilmington, N.C. Land Development Code
§
18-285(g), to the extent it required owner-occupancy of a property, was unconstitutional. It regulated the lawful ownership of property, rather than the use of it, and G.S. 160A-381(a), while allowing cities the
power to regulate property, only allowed regulation to the extent of promoting health, safety, and general welfare principles as set forth in G.S. 160A-383. City of Wilmington v. Hill, 189 N.C. App. 173, 657 S.E.2d 670 (2008).
Where Police Power Permits Restrictions upon Specific Tract. - The police power, upon which zoning ordinances must rest, permits restriction upon the right of the owner of a specific tract, when the legislative body has a reasonable basis to believe that
it will promote the general welfare by conserving the values of other properties and encouraging the most appropriate use thereof. Blades v. City of Raleigh, 280 N.C. 531,
187 S.E.2d 35 (1972).
City's legislative body has authority to rezone property when reasonably necessary to do so in the interests of the public health, the public safety, the public morals or the public welfare. Ordinarily, the only limitation upon this legislative authority
is that it may not be exercised arbitrarily or capriciously. Allred v. City of Raleigh, 277 N.C. 530, 178 S.E.2d 432 (1971).
Rezoning on Condition Disapproved. - The rezoning of residential property to a business use, on the condition that the land rezoned shall be devoted exclusively to the business use for which application to rezone was made or otherwise remain residential,
constitutes zoning without regard to the public health, safety and welfare, concern for which is basic to that comprehensiveness contemplated in the enabling act. Allred v. City of Raleigh,
277 N.C. 530, 178 S.E.2d 432 (1971).
Property may not be rezoned in reliance upon representations of the applicant. Hall v. City of Durham, 88 N.C. App. 53, 362 S.E.2d 791 (1987), aff'd, 323 N.C. 293, 372
S.E.2d 564 (1988).
Rezoning may not be based on assurances that the applicant will make a specific use of the property. Hall v. City of Durham, 88 N.C. App. 53, 362 S.E.2d 791 (1987), aff'd, 323 N.C. 293,
372 S.E.2d 564 (1988).
Rezoning must take into account all permitted uses under the new classification. Hall v. City of Durham, 88 N.C. App. 53, 362 S.E.2d 791 (1987), aff'd, 323 N.C. 293,
372 S.E.2d 564 (1988).
Unlawful Contract Zoning. - A municipal ordinance rezoning a tract of land to a less restrictive R-6 classification constituted unlawful "contract zoning" where there was nothing in the record to indicate that the city council contemplated the opening of the tract to all uses permissible under the R-6 classification, and it was apparent that the city council's action was based on its approval of the applicant's plans to construct specifically described town houses on the property. Blades v. City of Raleigh, 280 N.C. 531, 187 S.E.2d 35 (1972).
Where city council considered a proposed development plan, as well as collateral representations concerning adjacent property and deed restrictions controlling future use of the rezoned site, but did not determine the suitability of the land for other
uses of the classification in question, the challenged rezoning constituted unlawful contract zoning. Hall v. City of Durham, 88 N.C. App. 53, 362 S.E.2d 791 (1987),
aff'd, 323 N.C. 293, 372 S.E.2d 564 (1988).
Zoning Need Not Assure Most Profitable Use of Each Tract. - This section does not contemplate that a zoning pattern must be, or should be, designed to permit each individual tract of land to be devoted to its own most profitable use, irrespective of the
surrounding area. Blades v. City of Raleigh, 280 N.C. 531, 187 S.E.2d 35 (1972).
In designing zoning regulations to prevent and relieve traffic congestion it is important that streets and thoroughfares planned for an area be considered as well as those in existence. Allred v. City of Raleigh, 7 N.C. App. 602, 173 S.E.2d 533 (1970), rev'd on other grounds, 277 N.C. 530, 178 S.E.2d 432 (1971).
Consistency Statement Did Not Require Rezoning. - Consistency statement adopted by a town board of commissioners pursuant to G.S. 160A-383 did not require rezoning of an owner's property because the fact that the rezoning would have been consistent with
the comprehensive zoning plan did not mean than that denying the rezoning request and maintaining the status quo was inconsistent with the comprehensive plan; there was no suggestion that the zoning in place at the time of
the owner's request to rezone his property was inconsistent with the comprehensive zoning plan. Coucoulas/Knight Props., LLC. v. Town of Hillsborough, 199 N.C. App. 455,
683 S.E.2d 228 (2009), aff'd, 364 N.C. 127, 691 S.E.2d 411, 2010 N.C. LEXIS 341 (2010).
Validity of Zoning Amendment. - City's zoning amendment was invalid because the city council had not approved a statement of reasonableness as required by G.S. 160A-383 when adopting the amendment. Wally v. City of Kannapolis, 365 N.C. 449, 722 S.E.2d 481 (2012).
Zoning amendment, which addressed the number of vehicles that could be parked on a private lot, did not address the same subject as G.S. 160A-301, which governed ordinary parking on public vehicular areas; therefore, G.S. 160A-301 is not a more "specific"
statute that renders the provisions of G.S. 160A-4 inapplicable because it simply addresses a different subject. Patmore v. Town of Chapel Hill N.C. 233 N.C. App. 133,
757 S.E.2d 302, review denied, 367 N.C. 519, 758 S.E.2d 874, 2014 N.C. LEXIS 447 (2014).
Rezoning Upheld. - City's decision to adopt ordinances rezoning two parcels of land was a single procedure, constituting legitimate conditional zoning, entirely consistent with act permitting city to engage in conditional zoning as a legislative act,
where the zoning ordinances were adopted in accordance with a small area plan, with goals that included: creating a greater mixture of land uses; planning for future mass transit service; developing pedestrian improvements;
and developing a public gathering space and a network of green spaces. Summers v. City of Charlotte, 149 N.C. App. 509, 562 S.E.2d 18 (2002), cert. denied, 355 N.C. 758,
566 S.E.2d 482 (2002).
§ 160D-702. Grant of power.
- A local government may adopt zoning regulations. Except as provided in subsections (b) and (c) of this section, a zoning regulation may regulate and restrict the height, number of stories, and size of buildings and other structures; the percentage of lots that may be occupied; the size of yards, courts, and other open spaces; the density of population; the location and use of buildings, structures, and land. A local government may regulate development, including floating homes, over estuarine waters and over lands covered by navigable waters owned by the State pursuant to G.S. 146-12. A zoning regulation shall provide density credits or severable development rights for dedicated rights-of-way pursuant to G.S. 136-66.10 or G.S. 136-66.11. Where appropriate, a zoning regulation may include requirements that street and utility rights-of-way be dedicated to the public, that provision be made of recreational space and facilities, and that performance guarantees be provided, all to the same extent and with the same limitations as provided for in G.S. 160D-804 and G.S. 160D-804.1.
-
Any regulation relating to building design elements adopted under this Chapter may not be applied to any structures subject to regulation under the North Carolina Residential Code for One- and Two-Family Dwellings except under one or more of the following
circumstances:
- The structures are located in an area designated as a local historic district pursuant to Part 4 of Article 9 of this Chapter.
- The structures are located in an area designated as a historic district on the National Register of Historic Places.
- The structures are individually designated as local, State, or national historic landmarks.
- The regulations are directly and substantially related to the requirements of applicable safety codes adopted under G.S. 143-138.
- Where the regulations are applied to manufactured housing in a manner consistent with G.S. 160D-908 and federal law.
- Where the regulations are adopted as a condition of participation in the National Flood Insurance Program.
- A zoning regulation shall not set a minimum square footage of any structures subject to regulation under the North Carolina Residential Code for One- and Two-Family Dwellings.
Regulations prohibited by this subsection may not be applied, directly or indirectly, in any zoning district or conditional district unless voluntarily consented to by the owners of all the property to which those regulations may be applied as part of and in the course of the process of seeking and obtaining a zoning amendment or a zoning, subdivision, or development approval, nor may any such regulations be applied indirectly as part of a review pursuant to G.S. 160D-604 or G.S. 160D-605 of any proposed zoning amendment for consistency with an adopted comprehensive plan or other applicable officially adopted plan.
For the purposes of this subsection, the phrase "building design elements" means exterior building color; type or style of exterior cladding material; style or materials of roof structures or porches; exterior nonstructural architectural ornamentation; location or architectural styling of windows and doors, including garage doors; the number and types of rooms; and the interior layout of rooms. The phrase "building design elements" does not include any of the following: (i) the height, bulk, orientation, or location of a structure on a zoning lot, (ii) the use of buffering or screening to minimize visual impacts, to mitigate the impacts of light and noise, or to protect the privacy of neighbors, or (iii) regulations adopted pursuant to this Article governing the permitted uses of land or structures subject to the North Carolina Residential Code for One- and Two-Family Dwellings.
Nothing in this subsection affects the validity or enforceability of private covenants or other contractual agreements among property owners relating to building design elements.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 15, 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 15, effective June 19, 2020, in subsection (a), substituted "A local government may adopt zoning regulations. Except as provided in subsections (b) and (c) of this section, a zoning" for "A Local Government May Adopt Zoning Regulations. - A zoning" in the beginning, and added "and G.S. 160D-804.1" at the end; added subsection (c); and made a minor stylistic change.
Legal Periodicals. - For note on coastal land use development and area-wide zoning, see 49 N.C.L. Rev. 866 (1971).
For comment, "Planned Unit Development and North Carolina Enabling Legislation," see 51 N.C.L. Rev. 1455 (1973).
For article discussing North Carolina special exception and zoning amendment cases, see 53 N.C.L. Rev. 925 (1975).
For comment, "Exclusionary Zoning and a Reluctant Supreme Court" (U.S.), see 13 Wake Forest L. Rev. 107 (1977).
For comment, "Urban Planning and Land Use Regulation: The Need for Consistency," see 14 Wake Forest L. Rev. 81 (1978).
For article, "The North Carolina Historic Preservation and Conservation Agreements Act: Assessment and Implications for Historic Preservation," see 11 N.C. Cent. L.J. 362 (1980).
For comment on exclusionary zoning of community facilities, see 12 N.C. Cent. L.J. 167 (1980).
For article, "Zoning for Direct Social Control," see 1982 Duke L.J. 761 (1982).
For comment discussing aesthetic zoning in North Carolina in light of State v. Jones, 305 N.C. 520, 290 S.E.2d 675 (1982), see 61 N.C.L. Rev. 942 (1983).
For survey of 1983 developments in property law, see 62 N.C.L. Rev. 1346 (1984).
For article, "Moving Toward the Bargaining Table: Contract Zoning, Development Agreements, and the Theoretical Foundations of Government Land Use Deals," see 65 N.C.L. Rev. 957 (1987).
For note, "The North Carolina Supreme Court Solves a City-County Conflict," see 66 N.C.L. Rev. 1266 (1988).
For comment discussing contract zoning and conditional use zoning in North Carolina, see 68 N.C.L. Rev. 177 (1989).
For 1997 legislative survey, see 20 Campbell L. Rev. 450 (1988).
For note, "Hog Farms and Nuisance Law in Parker v. Barefoot: Has North Carolina Become a Hog Heaven and Waste Lagoon?," see 77 N.C. L. Rev. 2355 (1999).
For article, "Public Education, Local Authority, and Democracy: The Implied Power of North Carolina Counties to Impose School Impact Fees," see 33 Campbell L. Rev. 239 (2011).
For article, "Economic Development Incentives and North Carolina Local Governments: A Framework for Analysis," see 91 N.C. L. Rev. 2021 (2013).
For article, "Searching for the Right Approach: Regulating Short-Term Rentals in North Carolina," see 96 N.C.L. Rev. 1821 (2018).
CASE NOTES
I. IN GENERAL.
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 153A-340, former G.S. 160A-381, and prior law.
II. DECISIONS UNDER FORMER G.S. 153A-340.
Editor's Note. - The following cases were decided under former G.S. 153A-340 and prior law.
Constitutional Protections. - This Part, G.S. 153A-340 through 153A-345, provide adequate constitutional protections for an aggrieved party. JWL Invs., Inc. v. Guilford County Bd. of Adjustment, 133 N.C. App. 426, 515 S.E.2d 715 (1999).
Applicability. - G.S. 153A-340(b)(2a) (2017) applied to an appeal of county decision that commercial shooting activities were not argitourism as the statute provided further guidance on what constituted zoning-exempt agritourism activities. Jeffries v.
Cty. of Harnett, 259 N.C. App. 473, 817 S.E.2d 36 (2018), review denied, 372 N.C. 297, 826 S.E.2d 710, 2019 N.C. LEXIS 424 (2019).
Counties have no inherent authority to enact zoning ordinances. Jackson v. Guilford County Bd. of Adjustment, 275 N.C. 155, 166 S.E.2d 78 (1969).
Construction with Local Law. - Counties may not act to zone a swine farm other than as authorized by the limited statutory exception of subsection (b)(3) of this section; because the General Assembly has provided a "complete and integrated regulatory
scheme" of swine farm regulations, the county Swine Ordinance and the county Health Board Rules, which were more burdensome than State law, were preempted by State law. Craig v. County of Chatham,
143 N.C. App. 30, 545 S.E.2d 455 (2001), aff'd in part and rev'd in part, 356 N.C. 40, 565 S.E.2d 172, 2002 N.C. LEXIS 539 (2002).
This section and G.S. 153A-121 do not operate exclusively of each other. Summey Outdoor Adv., Inc. v. County of Henderson, 96 N.C. App. 533, 386 S.E.2d 439 (1989).
Delegation of Power to Adopt Zoning Ordinances as Exception to Rule of Nondelegation of Legislative Powers. - The authority of the General Assembly to delegate to municipal corporations power to legislate concerning local problems, such as zoning, is
an exception, established by custom in most, if not all, of the states, to the general rule that legislative powers vested in the General Assembly may not be delegated by it. This exception to the doctrine of nondelegation
is not limited to a delegation of such legislative authority to incorporated cities and towns, but extends, as to other types of local matters, to a like delegation to counties and other units established by the General Assembly
for local government. Jackson v. Guilford County Bd. of Adjustment, 275 N.C. 155, 166 S.E.2d 78 (1969).
The General Assembly may confer upon county boards of commissioners power to adopt zoning ordinances otherwise valid, notwithstanding N.C. Const., Art. II,
§
1. Jackson v. Guilford County Bd. of Adjustment, 275 N.C. 155, 166 S.E.2d 78 (1969).
County zoning ordinance may not delegate such legislative powers to the county board of adjustment. Jackson v. Guilford County Bd. of Adjustment, 275 N.C. 155, 166 S.E.2d 78 (1969).
Zoning Ordinance Is Presumed Valid. - The presumption is that a zoning ordinance as a whole is a proper exercise of the police power. County of Durham v. Addison, 262 N.C. 280, 136 S.E.2d 600 (1964).
It is the duty of municipal authorities, in their sound discretion, to determine what ordinances or regulations are reasonably necessary for the protection of the public or the better government of the town. When such ordinance is adopted, it is presumed to be valid, and the courts will not declare it invalid unless it is clearly shown to be so. No law or ordinance will be declared unconstitutional unless it clearly is, and every reasonable intendment will be made to sustain it. County of Cumberland v. Eastern Fed. Corp., 48 N.C. App. 518, 269 S.E.2d 672, cert. denied, 301 N.C. 527, 273 S.E.2d 453 (1980).
Counties are authorized to zone property and to regulate and prohibit the expansion of nonconforming uses. Huntington Props. v. Currituck County, 153 N.C. App. 218, 569 S.E.2d 695 (2002).
When Enactment or Amendment of Ordinance Is Invalid. - The legislative act of enacting or amending a zoning ordinance is invalid if it is unreasonable, arbitrary, or an unequal exercise of legislative power. Chrismon v. Guilford County, 85 N.C. App. 211, 354 S.E.2d 309 (1987).
County zoning ordinance was enacted arbitrarily and capriciously under G.S. 153A-340(a) and G.S. 153A-341; no mention of the county's comprehensive plan was made in the minutes of the meeting at which the county adopted the ordinance, and some of the
permitted uses in the area were not consistent with a rural community character. Town of Green Level v. Alamance County, 184 N.C. App. 665, 646 S.E.2d 851, review denied,
361 N.C. 704, 655 S.E.2d 402 (2007).
Burden of Showing Invalidity Is on Person Asserting It. - The burden to show that a zoning ordinance as a whole is not a proper exercise of the police power rests upon the property owner who asserts its invalidity. County of Durham v. Addison,
262 N.C. 280, 136 S.E.2d 600 (1964).
Mere fact that a zoning ordinance seriously depreciates the value of complainant's property is not enough, standing alone, to establish its invalidity. County of Durham v. Addison, 262 N.C. 280,
136 S.E.2d 600 (1964).
Regulation of Signs. - Fact that defendant had authority to regulate signs under the zoning power in this section did not mean that it could not regulate signs in a similar manner under the general police powers in G.S. 153A-121, allowing regulation of
"conditions detrimental to the health, safety or welfare of its citizens and the peace and dignity of the county." Summey Outdoor Adv., Inc. v. County of Henderson, 96 N.C. App. 533, 386 S.E.2d 439 (1989).
The practice of conditional use zoning is an approved practice in North Carolina, so long as the action of the local zoning authority in accomplishing the zoning is reasonable, neither arbitrary nor unduly discriminatory, and in the public interest. Chrismon v. Guilford County, 322 N.C. 611, 370 S.E.2d 579 (1988).
Review pursuant to writ of certiorari under this section does not encompass the adjudication of issues such as whether the denial of a special use permit constitutes a taking without the payment of just compensation, inverse condemnation or a violation
of 42 U.S.C. 1983. Guilford County Dep't of Emergency Servs. v. Seaboard Chem. Corp., 114 N.C. App. 1, 441 S.E.2d 177, cert. denied, 336 N.C. 604,
447 S.E.2d 390 (1994).
Property Rezoned to Conditional Use District. - It is not necessary that property rezoned to a conditional use district be available for all of the uses allowed under the corresponding general use district. Chrismon v. Guilford County,
322 N.C. 611, 370 S.E.2d 579 (1988).
Rezoning Held Valid Conditional Use Zoning. - The rezoning of two tracts of land from A-1 to CU-M-2 so as to allow the storage and sale of agricultural chemicals was valid conditional use zoning and not illegal contract zoning. Chrismon v. Guilford County,
322 N.C. 611, 370 S.E.2d 579 (1988).
Additional Reasonable Conditions. - Trial court ruling was upheld when it simply ruled that a Zoning Board of Adjustment could not impose conditions on a conditional use permit that were in derogation of either the express conditions of a county Uniform Development Ordinance, or the reasonable conditions permitted in addition to those expressly provided pursuant to G.S. 153A-340(c); the trial court did not rule that the board could not impose conditions upon a property owner's conditional use permit. Overton v. Camden County, 155 N.C. App. 100, 574 S.E.2d 150 (2002).
While the county board of adjustment could not attach conditions to the replacement mobile home if it continued as a nonconforming use, when issuing a conditional use permit, the board could attach reasonable conditions under G.S. 153A-340(c). The conditions
imposed by the board, including that the replacement mobile home was to satisfy inspection and that one individual inhabit the replacement mobile home at all times, were not unreasonable or inappropriate. Overton v. Camden
County, 155 N.C. App. 391, 574 S.E.2d 157 (2002).
The phrase, "trade, industry, residence, or other purposes," as used in this section, relates to private property, and the phrase "other purposes" is not to be broadened to include the use of land by a municipality for a public enterprise listed in G.S.
160A-311. Davidson County v. City of High Point, 85 N.C. App. 26, 354 S.E.2d 280, modified and aff'd, 321 N.C. 252, 362 S.E.2d 553 (1987).
City Immune from County's Zoning Ordinances. - City which owned a sewage treatment facility located in a county and outside the city's boundaries was not required to comply with county's zoning ordinances in upgrading the facility and providing sewage service to newly annexed areas of city with that facility. Davidson County v. City of High Point, 85 N.C. App. 26, 354 S.E.2d 280, modified and aff'd, 321 N.C. 252, 362 S.E.2d 553 (1987).
A county's zoning authority is limited: it can be applied only to buildings within the county's borders which are outside city limits, and it is confined to the purposes of promoting health, safety, morals, or the general welfare. Davidson County v. City
of High Point, 321 N.C. 252, 362 S.E.2d 553 (1987).
Use of City-Owned Sewage Treatment Plant Without Prior Approval of County. - Since county had no authority to restrict or regulate city's provision of sewer service to its residents, the city could use city-owned sewage treatment plant located outside
the city but within the county, which was upgraded pursuant to the county's special use permit, with a condition attached to the permit requiring the county's prior approval of service to county citizens, to meet its statutory
mandate to provide sewer service to residents in newly annexed areas without seeking the county's prior approval, even though the facility was located in the county. Davidson County v. City of High Point,
321 N.C. 252, 362 S.E.2d 553 (1987).
Spot Zoning. - Spot zoning is not invalid per se, but rather, it is beyond the authority of the municipality or county and therefore void only in the absence of a clear showing of a reasonable basis therefor. Chrismon v. Guilford County,
322 N.C. 611, 370 S.E.2d 579 (1988).
Clear Showing of Reasonable Basis for Spot Zoning. - While the rezoning of two tracts from A-1 to CU-M-2, so as to allow the storage and sale of agricultural chemicals, constituted a form of spot zoning, this activity was legal and not illegal spot zoning.
Because of the substantial benefits created for the surrounding community by the rezoning and because of the close relationship between the likely uses of the rezoned property and the uses already present in the surrounding
tracts, there was a clear showing of a reasonable basis for the spot zoning. Chrismon v. Guilford County, 322 N.C. 611, 370 S.E.2d 579 (1988).
The principal differences between valid conditional use zoning and illegal contract zoning are related and are essentially two in number: First, valid conditional use zoning features merely a unilateral promise from the landowner to the local zoning authority
as to the landowner's intended use of the land in question, while illegal contract zoning anticipates a bilateral contract in which the landowner and the zoning authority make reciprocal promises. Second, in the context of
conditional use zoning, the local zoning authority maintains its independent decision-making authority, while in the contract zoning scenario, it abandons that authority by binding itself contractually with the landowner seeking
a zoning amendment. Chrismon v. Guilford County, 322 N.C. 611, 370 S.E.2d 579 (1988).
Power of County Commissioners to Grant Special Exceptions. - Statute authorizing the board of county commissioners by regulation to provide that the board of adjustment or the board of county commissioners may issue special use permits or conditional
permits in the classes of cases or situations and in accordance with the principles, conditions, safeguards, and procedures specified in the zoning ordinance did not purport to confer more power upon the commissioners to grant
special exceptions than the commissioners could delegate to the board of adjustment. In re Ellis, 277 N.C. 419, 178 S.E.2d 77 (1970).
Like the board of adjustment, the commissioners cannot deny applicants a permit in their unguided discretion or, stated differently, refuse it solely because, in their view, a mobile-home park would adversely affect the public interest. The commissioners must also proceed under standards, rules and regulations uniformly applicable to all who apply for permits. In re Ellis, 277 N.C. 419, 178 S.E.2d 77 (1970).
Trial court reviewing a board of adjustment's denial of a developer's request for a special use permit did not meet the court's duty to ensure that the board followed quasi-judicial procedures ensuring the developer a fair trial because, (1) at a hearing
held before the board, when an appellate court remanded the matter for the board to make reviewable findings, the board let opponents of the request present new evidence without granting the developer a similar opportunity,
and (2) the court did not address these violations of procedure and the developer's due process rights. Templeton Props., L.P. v. Town of Boone, 219 N.C. App. 266, 724
S.E.2d 604 (2012).
Moratorium Not Grounds to Deny Permit. - Existence of a moratorium is not grounds to deny a permit; a moratorium simply delays the decision. Ashe Cty. v. Ashe Cty. Planning Bd., - N.C. App. - , 829 S.E.2d 224 (2019), review granted and denied,
373 N.C. 175, 833 S.E.2d 621, 2019 N.C. LEXIS 1074 (2019), reversed in part by 2020 N.C. LEXIS 1247 (N.C. Dec. 18, 2020).
Ordinance Held Valid. - A county zoning ordinance, applicable only to swine farms "served by an animal waste management system having a design capacity of 600,000 pounds steady state live weight (SSLW) or greater" and enacted pursuant to the express statement of power given by the State, was not preempted. Craig v. County of Chatham, 143 N.C. App. 30, 545 S.E.2d 455 (2001), aff'd in part and rev'd in part, 356 N.C. 40, 565 S.E.2d 172, 2002 N.C. LEXIS 539 (2002).
Currituck County, N.C. Unified Development Ordinance
§
10.51 is directly within the types of restrictions listed by G.S. 153A-340(a). Letendre v. Currituck Cty., 259 N.C. App. 512, 817 S.E.2d 73 (2018), remanded, 817 S.E.2d 920, 2018 N.C. App. LEXIS 934 (N.C. Ct. App. 2018), review denied, 372 N.C. 54, 822 S.E.2d 641, 2019 N.C. LEXIS 103 (2019).
Ordinance Held Invalid. - So much of an ordinance as required the board of adjustment to deny a permit for the establishment of a mobile-home park in an A-1 agricultural district unless it found that the granting of the special exception would not adversely affect the public interest was beyond the authority of the board of county commissioners to enact and so was invalid. Keiger v. Winston-Salem Bd. of Adjustment, 278 N.C. 17, 178 S.E.2d 616 (1971).
County's failure to comply with G.S. 153A-323 in enacting the Buncombe County, N.C. Multi-Family Dwelling Ordinance (Ordinance) rendered the ordinance invalid; although the county claimed that the Ordinance was adopted in the exercise of its general police power pursuant to G.S. 153A-121, the Ordinance substantially affected land use, was therefore a zoning ordinance, and the county was not permitted to evade the legislative notice requirements imposed by G.S. 153A-323 by labeling the Ordinance an exercise of police power. Thrash Ltd. P'ship v. County of Buncombe, 195 N.C. App. 727, 673 S.E.2d 689 (2009).
Trial court erred in granting a county summary in developers action seeking, among other things, an order declaring an Adequate Public Facilities Ordinance (APFO) null and void because the ordinance fell outside of the county's legislatively granted zoning
powers when although the county clearly sought to pursue the legislative objective of facilitating the efficient and adequate provision of schools, the APFO did not utilize any of the zoning powers enumerated in G.S. 153A-340;
while the county was entitled to use its zoning authority to facilitate the efficient and adequate provision of schools, it had to achieve that goal using the tools authorized by the zoning statute. Union Land Owners Ass'n
v. County of Union, 201 N.C. App. 374, 689 S.E.2d 504 (2009).
County Zoning Board Exceeded Its Delegated Authority. - County zoning board exceeded its authority when it voided a mine operator's special use exception permit after finding violations, then treated the mine operator's current permit application as one for a new permit and applied the standard under a new ordinance; instead of voiding the original permit, which was issued in 1997, the board should have considered the application in light of the standards in effect prior to October of 2000, the date of the new ordinance, and had the board done so, it should have found that the mine operator met the burden when the mine operator produced a current permit from the Department of Environment, Health, and Natural Resources, Division of Land Resources for the activities contemplated and the 1997 ordinance had no other, more stringent conditions specified. Hewett v. County of Brunswick, 155 N.C. App. 138, 573 S.E.2d 688 (2002).
County lacked the authority under G.S. 153A-4, 153A-340, and 153A-341 to adopt an adequate public facilities ordinance (APFO) that effectively conditioned the approval of new residential construction projects on developers paying a fee to subsidize new
school construction, because the APFO was not a zoning ordinance. Lanvale Props., LLC v. County of Cabarrus, 366 N.C. 142, 731 S.E.2d 800 (2012).
Activities Regarding Transportation of Farm Products. - The use of large trucks to transport farm products, and the creation of facilities such as driveways and loading docks for such trucks, are both activities so essential to large-scale agricultural
production that their exclusion from the exemption would render it meaningless. Sedman v. Rijdes, 127 N.C. App. 700, 492 S.E.2d 620 (1997).
Constitutionality of County Sign Ordinance. - A county sign ordinance did not violate the equal protection clause of U.S. Const., Amend. XIV or N.C. Const., Art. I, § 19, because the county would not enforce the ordinance with respect to any person owning or operating a sign in certain municipalities within the county, since the county could not exercise zoning authority within a city which had enacted a zoning ordinance, and it could defer from zoning within cities. County of Cumberland v. Eastern Fed. Corp., 48 N.C. App. 518, 269 S.E.2d 672, cert. denied, 301 N.C. 527, 273 S.E.2d 453 (1980).
Provision of a county sign ordinance requiring nonconforming uses to be discontinued within three years from the effective date of the ordinance, thus giving the owner of a nonconforming sign a three-year period in which to amortize or depreciate the
cost of the sign, was reasonable and did not provide for an unconstitutional taking of property. County of Cumberland v. Eastern Fed. Corp., 48 N.C. App. 518, 269 S.E.2d
672, cert. denied, 301 N.C. 527, 273 S.E.2d 453 (1980).
Soil Remediation Not Agricultural Use. - Remediation of petroleum contaminated soil is a waste treatment process, not an agricultural use, and thus it was a nonconforming use in a residential agricultural zoning district of a county. Ball v. Randolph
County Bd. of Adjustment, 129 N.C. App. 300, 498 S.E.2d 833 (1998), petition for discretionary review improvidently granted, 49 N.C. 348,
507 S.E.2d 272 (1998).
Kennel Operation Not "Farming". - Dogs are not livestock, and a dog breeding and kennel operation does not constitute "farming," so as to exempt property used therefor from a county's zoning authority pursuant to this section. Development Assocs. v. Wake
County Bd. of Adjustment, 48 N.C. App. 541, 269 S.E.2d 700 (1980), cert. denied, 301 N.C. 719, 274 S.E.2d 227 (1981).
Horses Considered Livestock. - Where activity undertaken by landowner was related and incidental to the farming activities of boarding, breeding, raising, pasturing and watering horses, horses were considered as livestock, qualifying the property for
the exemption granted bona fide farms under G.S. 153A-340. County of Durham v. Roberts, 145 N.C. App. 665, 551 S.E.2d 494 (2001).
Agritourism. - Superior court properly determined that commercial shooting activities involving continental shooting towers, 3D archery courses and ranges, sporting clay, skeet and trap ranges, rifle ranges and pistol pits were not agritourism under G.S. 153A-34(b)(2a) (2017) where they did not fit squarely within traditional notions of hunting, the definition of rural activity, or the category of a natural activity. Jeffries v. Cty. of Harnett, 259 N.C. App. 473, 817 S.E.2d 36 (2018), review denied, 372 N.C. 297, 826 S.E.2d 710, 2019 N.C. LEXIS 424 (2019).
Applying the principle of noscitur a sociis to G.S. 153A-340(b)(2a), shooting activities that require the construction and use of artificial structures and the alteration of natural land, such as clearing farm property to operate gun ranges, share little resemblance to the listed rural agritourism activity examples or the same spirit of preservation or traditionalism. Applying that same principle to subdivision (2a)'s examples of agritourism events yields the same interpretation. Jeffries v. Cty. of Harnett, 259 N.C. App. 473, 817 S.E.2d 36 (2018), review denied, 372 N.C. 297, 826 S.E.2d 710, 2019 N.C. LEXIS 424 (2019).
Under the principle of expressio unius est exclusio alterius as applied to both G.S. 153A-340(b)(2a) and G.S. 99E-30(3), that these statutes list farming and ranching but not hunting implies that the shooting activities involving continental shooting
towers, 3D archery courses and ranges, sporting clays, skeet and trap ranges, rifle ranges, and pistol pits, even when done in preparation for a rural activity like traditional hunting, were not contemplated as agritourism.
Jeffries v. Cty. of Harnett, 259 N.C. App. 473, 817 S.E.2d 36 (2018), review denied, 372 N.C. 297, 826 S.E.2d 710, 2019 N.C. LEXIS 424 (2019).
Non-Farm Independent Commercial Enterprise. - Rezoning applicant's intended biodiesel production was not a bona fide farm use that was subject to zoning. The hauling of raw materials from surrounding farms, and the production of 500,000 gallons of biodiesel
per year, when the farming operation required only 100,000 gallons of biodiesel per year, removed this production from the realm of bona fide farm use to a non-farm independent commercial enterprise; although the large scale
industrial farming operation fit under the G.S. 153A-340(b)(2) bona fide farm exception to date, this added industrial process was not the production and activities relating or incidental to the production of crops, fruits,
vegetables, ornamental and flowering plants, dairy, livestock, poultry, and all other forms of agricultural products as defined in G.S. 106-581.1 having a domestic or foreign market. N. Iredell Neighbors for Rural Life v. Iredell
County, 196 N.C. App. 68, 674 S.E.2d 436 (2009).
The use of fans and heating devises is "incidental" to the year-round raising of plants inside greenhouses. Sedman v. Rijdes, 127 N.C. App. 700, 492 S.E.2d 620 (1997).
Greenhouse Operations Exempt. - Activities of greenhouse operation, including the construction of a driveway, the use of large trucks to export plants, and the operation of fans and heating devices were exempt from compliance with zoning ordinances. Sedman
v. Rijdes, 127 N.C. App. 700, 492 S.E.2d 620 (1997).
Statute Did Not Authorize "School Impact Fees." - G.S. 153A-121 and G.S. 153A-340 did not authorize a county to impose "school impact fees" on new residential construction. They did not allow a county to charge a fee for providing its own governmental
services, such as school construction, to the public. Durham Land Owners Ass'n v. County of Durham, 177 N.C. App. 629, 630 S.E.2d 200 (2006).
Owner's Lacked Standing to Appeal Conditional Use Permit. - Dismissal of owners' petition seeking review of a board's decision granting buyers' application for a conditional use permit for property was proper because standing was required before a petitioner
was allowed to seek review of a special use permit or conditional use permit, and because the owners failed to allege any damages whatsoever, they lacked standing. Casper v. Chatham County,
186 N.C. App. 456, 651 S.E.2d 299 (2007).
Error In Making Findings of Fact. - Superior court erred in reversing a decision by a county board of adjustment that partially affirmed and modified a notice of violations penalizing the owners for violating a zoning ordinance by operating firing ranges
on their property without a site plan and permit because, instead of remanding the case to the board with instructions to make sufficient findings to allow for appellate review or remanding with the instructions necessary to
correct an error of law, the superior court overstepped its role as an appellate tribunal by making its own findings of fact regarding how the ranges were used and who used them relevant to the statutory exception, the federal
farm exemption, and an exception in the county's firing range amendment. Hampton v. Cumberland Cty., 256 N.C. App. 656, 808 S.E.2d 763 (2017), cert granted, 371 N.C. 473,
818 S.E.2d 110 (2018), cert dismissed, 373 N.C. 2, 832 S.E.2d 692, 2019 N.C. LEXIS 911 (2019).
III. DECISIONS UNDER FORMER G.S. 160A-381.
Editor's Note. - The following cases were decided under former G.S. 160A-381 and prior law.
Many of the cases cited in the annotations to this section were decided under former G.S. 160-172 to 160-181.2 and other similar provisions.
A. IN GENERAL.
Rezoning is a legislative act, whereas a proceeding to grant a variance or special use permit is quasi-judicial in nature. Sherrill v. Town of Wrightsville Beach, 81 N.C. App. 369, 344 S.E.2d 357,
cert. denied and appeal dismissed, 318 N.C. 417, 349 S.E.2d 600 (1986).
Enforcement Provisions. - The broad enforcement provisions of G.S. 160A-389, a zoning statute, could not serve as the statutory basis for denying a building permit to one whose lot violated the subdivision requirements of
Chapter 17 of the Nags Head Code of Ordinances. However, insofar as the Town of Nags Head rested its denial of a building permit upon the violation
of zoning laws, the broader enforcement license of this section would apply and would sustain such a remedy. Town of Nags Head v. Tillett, 314 N.C. 627, 336 S.E.2d 394 (1985).
Concrete mixing facility did not forfeit its nonconforming use under ordinance providing for forfeiture in the event that such use ceased for six months, although the plant was not operated for more than six months due to a slump in business, where the
owner maintained the plant, equipment, inventories, and utilities as before, and could have resumed operations within two hours after deciding to do so. Southern Equip. Co. v. Winstead, 80 N.C. App. 526, 342 S.E.2d 524 (1986).
City's practice of referring all privilege license applicants to the zoning administrator does not convert a privilege license into a regulatory license; the city's zoning compliance process does not involve or permit any discretion on the part of the zoning administrator as to whether a particular use is allowed in a particular district, in contrast to the special conditional use scheme of this section. Mom N Pops, Inc. v. City of Charlotte, 979 F. Supp. 372 (W.D.N.C. 1997), aff'd, 162 F.3d 1155 (4th Cir. 1998).
City had the authority to allow the city tax collector to assess zoning compliance as part of the administration of the business privilege license tax and to deny a business privilege license to a sexually oriented business because the business sought
to operate in violation of a zoning ordinance. Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 162 N.C. App. 603, 592 S.E.2d 205, cert. denied, 358 N.C. 543,
599 S.E.2d 43 (2004).
B. POWER TO ZONE.
.
The original zoning power of the State reposes in the General Assembly. Schloss v. Jamison, 262 N.C. 108, 136 S.E.2d 691 (1964); Allred v. City of Raleigh, 277 N.C. 530, 178 S.E.2d 432 (1971); Keiger v. Winston-Salem Bd. of Adjustment, 278 N.C. 17, 178 S.E.2d 616 (1971); Allgood v. Town of Tarboro, 281 N.C. 430, 189 S.E.2d 255 (1972).
The power to zone is the power of the State and rests initially in the General Assembly. Zopfi v. City of Wilmington, 273 N.C. 430, 160 S.E.2d 325 (1968); Decker v. Coleman, 6 N.C. App. 102, 169 S.E.2d 487 (1969).
The power to zone is the power originally vested in the General Assembly to legislate with reference to the use which may be made of land and the structures which may be erected or located thereon. Keiger v. Winston-Salem Bd. of Adjustment, 278 N.C. 17, 178 S.E.2d 616 (1971).
Rezoning must be effected by the exercise of legislative power, rather than by special arrangements with the owner of a particular tract or parcel of land. Rose v. Guilford County, 60 N.C. App. 170, 298 S.E.2d 200 (1982).
Which May Delegate It as Exercise of Police Power. - The General Assembly may delegate power to a municipal corporation to enact zoning ordinances in the exercise of police power of the State. Jackson v. Guilford County Bd. of Adjustment,
275 N.C. 155, 166 S.E.2d 78 (1969).
Zoning Ordinances on Erection of Buildings. - Statutes which have been passed authorizing the governing bodies of municipal corporations to enact zoning ordinances prescribing that in certain areas only designated types of buildings may be erected and
used have been generally upheld by the courts as an exercise of the police power of the State. Vance S. Harrington & Co. v. Renner, 236 N.C. 321, 72 S.E.2d 838 (1952);
City of Raleigh v. Morand, 247 N.C. 363, 100 S.E.2d 870 (1957), appeal dismissed, 357 U.S. 343, 78 S. Ct. 1369, 2 L. Ed. 2d 1367 (1958).
Zoning power of municipalities is derived from the State. State v. Joyner, 286 N.C. 366, 211 S.E.2d 320, appeal dismissed, 422 U.S. 1002, 95 S. Ct. 2618, 45 L. Ed. 2d 666 (1975).
Zoning Authority Delegated by the General Assembly. - The General Assembly has delegated to the legislative body of cities and incorporated towns the power to adopt zoning regulations and, from time to time, to amend or repeal such regulations. In re Markham, 259 N.C. 566, 131 S.E.2d 329, cert. denied, 375 U.S. 931, 84 S. Ct. 332, 11 L. Ed. 2d 263 (1963).
The General Assembly has delegated its police powers to enact zoning regulations to municipal corporations. Armstrong v. McInnis, 264 N.C. 616, 142 S.E.2d 670 (1965).
Through the provisions of former Article 14 of Chapter 160, fourteen cities and towns of this State were delegated the authority to zone property within their boundaries and to restrict to specified purposes the uses of private property within each zone. Allred v. City of Raleigh, 7 N.C. App. 602, 173 S.E.2d 533 (1970), rev'd on other grounds, 277 N.C. 530, 178 S.E.2d 432 (1971).
The General Assembly has delegated to the legislative body of a municipality the power to adopt zoning regulations for the purpose of promoting health, safety, morals or the general welfare of the community. Allgood v. Town of Tarboro,
281 N.C. 430, 189 S.E.2d 255 (1972).
Promoting the general welfare of the community through control of lot size and population density is a legitimate use of the police power. Messer v. Town of Chapel Hill, 125 N.C. App. 57, 479 S.E.2d
221 (1996).
A municipal corporation has no inherent power to zone its territory and restrict to specified purposes the use of private property in each such zone. Such power has, however, been delegated to the cities and incorporated towns of this State by the General Assembly. Zopfi v. City of Wilmington, 273 N.C. 430, 160 S.E.2d 325 (1968); Decker v. Coleman, 6 N.C. App. 102, 169 S.E.2d 487 (1969).
A municipality has no inherent power to zone its territory and possesses only such power to zone as is delegated to it by the enabling statutes. Heaton v. City of Charlotte, 277 N.C. 506, 178 S.E.2d 352 (1971).
A city has power to zone only as delegated to it by enabling statutes. Sellers v. City of Asheville, 33 N.C. App. 544, 236 S.E.2d 283 (1977).
Delegation of Zoning Power as Exception to General Rule. - The authority of the General Assembly to delegate to municipal corporations power to legislate concerning local problems, such as zoning, is an exception to the general rule that legislative powers,
vested in the General Assembly by N.C. Const., Art. II,
§
1, may not be delegated by it. This exception to the doctrine of nondelegation is not limited to a delegation of such legislative authority to incorporated cities and towns, but extends, as to other types of local
matters, to a like delegation to counties and other units established by the General Assembly for local government. Jackson v. Guilford County Bd. of Adjustment, 275 N.C. 155, 166 S.E.2d 78 (1969).
Delegation of Zoning Power Cannot Exceed Power of General Assembly. - The General Assembly cannot delegate to a municipal corporation more extensive power to regulate the use of private property than the General Assembly itself possesses. Zopfi v. City
of Wilmington, 273 N.C. 430, 160 S.E.2d 325 (1968).
Zoning Power Cannot Be Further Delegated to Board of Adjustment. - The privilege of erecting a nonconforming building or a building for a nonconforming use may not be granted by the board of adjustment under the guise of a variance permit, as the board of adjustment has no power to amend the ordinance under which it functions. Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128 (1946).
The power to zone is conferred upon the governing body of the municipality and cannot be delegated to the board of adjustment. Hence, a board of adjustment has no power to permit a type of business or building prohibited by an ordinance, for to do so would be an amendment of the law and not a variance of its regulations. James v. Sutton, 229 N.C. 515, 50 S.E.2d 300 (1948); In re O'Neal, 243 N.C. 714, 92 S.E.2d 189 (1956).
The legislative body of the municipal corporation may not delegate to the municipal board of adjustment the power to zone; that is, the power originally vested in the General Assembly to legislate with reference to the use which may be made of land and the structures which may be erected or located thereon. It follows that a county zoning ordinance may not delegate such legislative powers to the county board of adjustment. Jackson v. Guilford County Bd. of Adjustment, 275 N.C. 155, 166 S.E.2d 78 (1969).
The legislative body of the municipal corporation may not delegate to the municipal board of adjustment the power to zone. Keiger v. Winston-Salem Bd. of Adjustment, 278 N.C. 17, 178 S.E.2d 616 (1971).
It would constitute an unlawful delegation and exercise of the legislative power vested by the General Assembly in the board of aldermen of Winston-Salem to allow the board of adjustment to deny a special permit on the ground that the board of adjustment
did not consider a use specified in the ordinance as a conditional permissible use to be in accord with the "purpose and intent" of the ordinance. Keiger v. Winston-Salem Bd. of Adjustment,
278 N.C. 17, 178 S.E.2d 616 (1971).
Power to Zone Need Not Be Exercised. - The grant of the power to zone to a municipal corporation imposes no duty upon the city or town to exercise it, and the courts may not require the city or town to enact zoning legislation. This is a matter within
the discretion of the legislative body of the city or town. Zopfi v. City of Wilmington, 273 N.C. 430, 160 S.E.2d 325 (1968).
Zoning Authority Is Not Exhausted by Adoption of a Zoning Ordinance. - The adoption of a zoning ordinance in exercise of the police power, delegated to a municipal corporation, does not exhaust that power. Zopfi v. City of Wilmington,
273 N.C. 430, 160 S.E.2d 325 (1968).
Municipality exercises the police power of the State within the limits of zoning power delegated. Schloss v. Jamison, 262 N.C. 108, 136 S.E.2d 691 (1964); Keiger v. Winston-Salem Bd. of Adjustment, 278 N.C. 17, 178 S.E.2d 616 (1971).
In enacting and enforcing zoning regulations, a municipality acts as a governmental agency and exercises the police power of the State. Armstrong v. McInnis, 264 N.C. 616, 142 S.E.2d 670 (1965); Taylor v. Bowen, 272 N.C. 726, 158 S.E.2d 837 (1968).
Zoning laws, when valid, are an exercise of the police power of the sovereign to reasonably regulate or restrict the use of private property to promote the public health, the public safety, the public morals or the public welfare. Zopfi v. City of Wilmington,
273 N.C. 430, 160 S.E.2d 325 (1968).
Power to Zone Is Subject to Limitations of Enabling Act. - The power to zone, conferred upon the legislative body of a municipality, is subject to the limitations of the enabling act. Schloss v. Jamison, 262 N.C. 108, 136 S.E.2d 691 (1964); Keiger v. Winston-Salem Bd. of Adjustment, 278 N.C. 17, 178 S.E.2d 616 (1971).
The power to zone, conferred upon the legislative body of a municipality, is subject to the limitations of the enabling act. Within the limits of the powers so delegated, the municipality exercises the police power of the State. Allred v. City of Raleigh, 277 N.C. 530, 178 S.E.2d 432 (1971).
A zoning ordinance or an amendment thereto which is not adopted in accordance with the enabling statutes is invalid and ineffective. Heaton v. City of Charlotte, 277 N.C. 506, 178 S.E.2d 352 (1971);
Keiger v. Winston-Salem Bd. of Adjustment, 281 N.C. 715, 190 S.E.2d 175 (1972); Sellers v. City of Asheville, 33 N.C. App. 544, 236 S.E.2d 283 (1977).
Limitations Imposed by the Constitution. - The authority of a city or town to enact zoning ordinances is subject both to the limitations imposed by the Constitution and to the limitations of the enabling statute. Zopfi v. City of Wilmington, 273 N.C. 430, 160 S.E.2d 325 (1968).
The power to zone is subject to the limitations imposed by the Constitution upon the legislative power forbidding arbitrary and unduly discriminatory interference with the rights of property owners. Zopfi v. City of Wilmington, 273 N.C. 430, 160 S.E.2d 325 (1968).
Exercise by a city of delegated power to zone is subject both to limitations imposed by the Constitution upon the legislative power of the State itself, forbidding arbitrary and unduly discriminatory interference with the rights of property owners, and also to the limitations in the statutes by which the power was delegated. Decker v. Coleman, 6 N.C. App. 102, 169 S.E.2d 487 (1969).
The authority to zone property and to restrict to specified purposes the uses of private property within each zone is limited by the provisions of the enabling statute and also by constitutional provisions which forbid arbitrary and unduly discriminatory interference with the rights of property owners. Allred v. City of Raleigh, 7 N.C. App. 602, 173 S.E.2d 533 (1970), rev'd on other grounds, 277 N.C. 530, 178 S.E.2d 432 (1971).
The authority to enact zoning ordinances is subject to the limitations imposed by the enabling statute and by the Constitution. These limitations forbid arbitrary and unduly discriminatory interference with property rights in the exercise of such power.
Heaton v. City of Charlotte, 277 N.C. 506, 178 S.E.2d 352 (1971); Keiger v. Winston-Salem Bd. of Adjustment, 281 N.C. 715, 190 S.E.2d 175
(1972).
Unlawful Contract Zoning. - Illegal contract zoning connotes a transaction wherein both the landowner who is seeking a certain zoning action and the zoning authority itself undertake reciprocal obligations in the context of a bilateral contract. This
depends upon a finding of a transaction in which both the landowner seeking a rezoning and the zoning authority undertake reciprocal obligations; in short, a "meeting of the minds" must occur; mutual assurances must be exchanged.
Hall v. City of Durham, 323 N.C. 293, 372 S.E.2d 564, cert. denied, 323 N.C. 629, 374 S.E.2d 586 (1988).
County Ordinances Inapplicable to Municipal Sewage Facility. - City which owned a sewage treatment facility located in a county and outside the city's boundaries was not required to comply with county's zoning ordinances in upgrading the facility and
providing sewage service to newly annexed areas of city with that facility. Davidson County v. City of High Point, 85 N.C. App. 26, 354 S.E.2d 280, modified and aff 'd,
321 N.C. 252, 362 S.E.2d 553 (1987).
As to similarity of former provisions regarding zoning by counties and municipalities, see Jackson v. Guilford County Bd. of Adjustment, 2 N.C. App. 408, 163 S.E.2d 265 (1968), aff 'd, 275 N.C. 155,
166 S.E.2d 78 (1969); Keiger v. Winston-Salem Bd. of Adjustment, 278 N.C. 17, 178 S.E.2d 616 (1971).
Zoning Ordinance Validly Enacted Under Delegated Authority. - Wrightsville Beach, N.C. Zoning Ordinance
§
155.009(A) was properly and validly established under a grant of power contained in 1981 N.C. Sess. Laws 904 and G.S. 160A-381(a); accordingly, where property owners' home was constructed too close to the property
line, in violation of the ordinance's setback requirements, the town building inspector's refusal to issue them a certificate of occupancy was proper. Prewitt v. Town of Wrightsville Beach, 161 N.C. App. 481, 595 S.E.2d 442 (2003).
C. ZONING ORDINANCES, GENERALLY.
.
Who May Challenge Rezoning Ordinance. - In order to challenge a rezoning ordinance, one must have a specific personal and legal interest in the subject matter affected by the ordinance and must be directly and adversely affected by the ordinance. Davis v. City of Archdale, 81 N.C. App. 505, 344 S.E.2d 369 (1986).
Alleged diminution in the value of the property of adjacent or nearby landowners due to increased traffic on roads which already carried traffic volumes in excess of capacity and due to increased demands upon already overburdened public utilities are
not special damages distinct from those of the rest of the community, and plaintiffs did not have standing to challenge rezoning ordinances on such grounds. Davis v. City of Archdale, 81 N.C. App. 505, 344 S.E.2d 369 (1986).
Criteria for Validity of Zoning Ordinance. - An ordinance passed under an enabling statute, following its provisions and carrying it into effect in the city passing it, prescribing uniform regulations for each zone or district and giving an inspector certain judicial functions with respect to the kind or class of buildings under a board of adjustment and review, and providing for certiorari, is a valid exercise of power and not repugnant to the organic law prohibiting discriminations. Harden v. City of Raleigh, 192 N.C. 395, 135 S.E. 151 (1926).
A zoning ordinance covering all land within the municipality and separating commercial and industrial districts of the city from those set apart for residences, schools, parks, libraries, churches, etc., which is uniform and operates alike on all territory within the respective zones, bears a reasonable relation to the health, safety, morals and general welfare of the entire community, and is a valid and constitutional exercise of the delegated police power of the municipality. Kinney v. Sutton, 230 N.C. 404, 53 S.E.2d 306 (1949).
As a general rule a zoning ordinance of a municipality is valid and enforceable if it emanates from ample grant of power by the legislature to the city or town, if it has a reasonable tendency to promote the public safety, health, morals, comfort, welfare
and prosperity and if its provisions are not arbitrary, unreasonable or confiscatory. Helms v. City of Charlotte, 255 N.C. 647, 122 S.E.2d 817 (1961).
Substantial Relation to Public Welfare Essential. - Zoning ordinances are upheld when, but only when, they bear a substantial relation to the public health, safety, morals, or general welfare. Schloss v. Jamison, 262 N.C. 108,
136 S.E.2d 691 (1964).
Depreciation of Property Not Enough to Invalidate Ordinance. - The mere fact that a zoning ordinance seriously depreciates the value of complainant's property is not enough, standing alone, to establish its invalidity. Helms v. City of Charlotte, 255 N.C. 647, 122 S.E.2d 817 (1961); County of Durham v. Addison, 262 N.C. 280, 136 S.E.2d 600 (1964).
If the police power is properly exercised in the zoning of a municipality, a resultant pecuniary loss to a property owner is a misfortune which he must suffer as a member of society. Schloss v. Jamison, 262 N.C. 108,
136 S.E.2d 691 (1964).
Unless Property Is Rendered Valueless by Impossibility of Permitted Use. - A municipal zoning ordinance is confiscatory and invalid in its application to a particular lot if it is practically impossible to use such lot for the purpose permitted by the
ordinance so that the ordinance renders such property valueless for practical purposes. Helms v. City of Charlotte, 255 N.C. 647, 122 S.E.2d 817 (1961).
Fact that a lot would be more valuable if devoted to a nonconforming use does not deprive owner of property without due process of law when the zoning regulations are uniform in their application to all within the respective districts, and the differentiation
of the uses of property within the respective districts is in accordance with a comprehensive plan in the interest of the health, safety, morals or general welfare of the entire community. Kinney v. Sutton,
230 N.C. 404, 53 S.E.2d 306 (1949).
Two of the essentials of a comprehensive zoning ordinance are: (1) It applies to all territory subject to the zoning jurisdiction of a city council, including the area beyond and surrounding the corporate limits of the city for a distance of one mile
in all directions, and (2) with reference to property within a particular district or zone, all uses permissible in the zone are available as of right to the owner. Allred v. City of Raleigh,
277 N.C. 530, 178 S.E.2d 432 (1971).
The test of whether the means of the regulation of land use are reasonable is two pronged: 1) whether the ordinance as applied is reasonably necessary to promote the public good and, 2) whether the interference with the owner's right to use the property
is reasonable in degree. Messer v. Town of Chapel Hill, 125 N.C. App. 57, 479 S.E.2d 221 (1996).
As to validity of comprehensive zoning ordinances, see Allred v. City of Raleigh, 277 N.C. 530, 178 S.E.2d 432 (1971). See also, Schloss v. Jamison, 262 N.C. 108, 136
S.E.2d 691 (1964).
Mere laxity of enforcement will not invalidate zoning restrictions. Sherrill v. Town of Wrightsville Beach, 81 N.C. App. 369, 344 S.E.2d 357, cert. denied and appeal dismissed, 318 N.C. 417,
349 S.E.2d 600 (1986).
As to the showing necessary to invalidate zoning ordinance on constitutional grounds, see Sherrill v. Town of Wrightsville Beach, 81 N.C. App. 369, 344 S.E.2d 357, cert. denied and appeal dismissed,
318 N.C. 417, 349 S.E.2d 600 (1986).
Zoning and Property Lines Need Not Coincide. - It is not a prerequisite to the validity of a zoning ordinance that the zoning district lines should coincide with property lines. Helms v. City of Charlotte, 255 N.C. 647,
122 S.E.2d 817 (1961).
City May Limit Use of Property in Residential District. - Former G.S. 160-172 authorized municipalities to enact zoning ordinances prohibiting the use of property within a residential district for business or commercial purposes. Kinney v. Sutton,
230 N.C. 404, 53 S.E.2d 306 (1949).
Same Restrictions Must Apply to All Areas in Each Class. - When a classification of a zone has been made, all the areas in each class must be subject to the same restrictions. Allred v. City of Raleigh, 277 N.C. 530,
178 S.E.2d 432 (1971).
Conversion of Apartments to Condominiums Not a Change in Use Subject to Zoning Regulation. - Contemplated change in ownership to condominiums does not constitute a change in use which a town may regulate by its zoning ordinance. Graham Court Assocs. v. Town Council, 53 N.C. App. 543, 281 S.E.2d 418 (1981).
Where petitioner's apartment complex property did not comply with zoning ordinance requirements for multi-family housing, but its continued use as multi-family housing was permitted as a prior nonconforming use under the zoning ordinance of respondent
town, contemplated change in ownership to condominiums did not constitute a change in use which respondent town could regulate by a zoning ordinance, and respondent lacked the right or legal authority to require petitioner
to apply for or receive a special use permit as a prerequisite to its right to sell the apartments as condominiums. Graham Court Assocs. v. Town Council, 53 N.C. App. 543, 281 S.E.2d 418 (1981).
In enacting a zoning ordinance a municipality is engaged in legislating, not in contracting. Allred v. City of Raleigh, 277 N.C. 530, 178 S.E.2d 432 (1971).
In enacting a zoning ordinance, a municipality is engaged in legislating and not in contracting. As a consequence, a zoning ordinance fixing the boundaries of zones does not result in a contract between the municipality and property owners precluding
the municipality from afterwards changing the boundaries if it deems a change to be desirable. Moreover, a zoning ordinance does not vest in a property owner the right that the restrictions imposed by it upon his property or
the property of others shall remain unaltered. Marren v. Gamble, 237 N.C. 680, 75 S.E.2d 880 (1953).
Zoning regulations may be amended or changed when such action is authorized by the enabling statute and does not contravene constitutional limitations on the zoning power. Marren v. Gamble, 237 N.C. 680,
75 S.E.2d 880 (1953).
Property may not be rezoned in reliance upon representations of the applicant. Hall v. City of Durham, 88 N.C. App. 53, 362 S.E.2d 791 (1987), aff'd, 323 N.C. 293, 372
S.E.2d 564 (1988).
Rezoning may not be based on assurances that the applicant will make a specific use of the property. Hall v. City of Durham, 88 N.C. App. 53, 362 S.E.2d 791 (1987), aff'd, 323 N.C. 293,
372 S.E.2d 564 (1988).
Rezoning must take into account all permitted uses under the new classification. Hall v. City of Durham, 88 N.C. App. 53, 362 S.E.2d 791 (1987), aff'd, 323 N.C. 293,
372 S.E.2d 564 (1988).
Provisions for amortization of non-conforming uses in zoning ordinances are valid if reasonable, and the per se rule holding all amortization provisions unconstitutional is rejected. State v. Joyner, 286 N.C. 366,
211 S.E.2d 320, appeal dismissed, 422 U.S. 1002, 95 S. Ct. 2618, 45 L. Ed. 2d 666 (1975).
Interpretation of Zoning Provisions. - With reference to zoning, the law is disposed to interpret language in the light of surrounding circumstances and to give to words their ordinary meaning and significance. Heaton v. City of Charlotte,
277 N.C. 506, 178 S.E.2d 352 (1971).
Zoning Ordinances to Be Liberally Construed in Favor of Owner. - Zoning ordinances are in derogation of the right of private property, and where exemptions appear in favor of the property owner, they must be liberally construed in favor of such owner. Heaton v. City of Charlotte, 277 N.C. 506, 178 S.E.2d 352 (1971).
Zoning ordinances are in derogation of the rights of private property and should be liberally construed in favor of the property owner. Clark v. Richardson, 24 N.C. App. 556, 211 S.E.2d 530 (1975).
Entire Ordinance to Be Considered on Review. - In examining the reasonableness of a zoning ordinance, due process dictates that the court look at the entire ordinance and not only at the provision as it applies to a particular inhabitant of the municipality.
State v. Joyner, 286 N.C. 366, 211 S.E.2d 320, appeal dismissed, 422 U.S. 1002, 95 S. Ct. 2618, 45 L. Ed. 2d 666 (1975).
When Zoning Provisions Held Void for Vagueness. - A particular zoning enactment or provision thereof may be judicially declared to be inoperative and void for uncertainty, vagueness, or indefiniteness. However, the courts will not, in doubtful cases,
declare a statute to be so meaningless and unintelligible as to be inoperative. Heaton v. City of Charlotte, 277 N.C. 506, 178 S.E.2d 352 (1971).
Court will not substitute its judgment for that of the legislative body charged with the primary duty and responsibility of determining whether its action is in the interest of the public health, safety, morals, or general welfare. Hence, when the most
that can be said against an ordinance adopted in the proper exercise of the police power is that whether it was an unreasonable, arbitrary or unequal exercise of power is fairly debatable, the courts will not interfere. Schloss
v. Jamison, 262 N.C. 108, 136 S.E.2d 691 (1964).
Controversies in respect of facts pertinent to the validity of a rezoning ordinance present questions of fact for determination by the superior court judge. Allred v. City of Raleigh, 277 N.C. 530,
178 S.E.2d 432 (1971).
D. SPECIFIC ZONING ORDINANCES.
.
Ordinance Permitting Commercial Activities by Family Members in Residential District. - Provisions of a zoning ordinance which permit commercial and industrial activities within a residential district, provided such activities are carried on by members
of the immediate family and not more than two persons are employed therein, does not render the ordinance void as being discriminatory, since the commercial activities permitted thereunder in a residential district are so intrinsically
different from unlimited commercial and industrial activities in general as to permit their separate classification. Kinney v. Sutton, 230 N.C. 404, 53 S.E.2d 306 (1949).
Ordinance purporting to prohibit erection of a gin or mill without consent of neighboring property owners cannot be upheld. Wilcher v. Sharpe, 236 N.C. 308, 72 S.E.2d 662 (1952), commented on in
31 N.C.L. Rev. 308 (1953).
Zoning ordinance which prohibited operation of a building material salvage yard in certain districts, and which permitted a three-year period after it was adopted for the removal of such business, was not so arbitrary, unreasonable or unrelated to the
general welfare of the community as to be unconstitutional by its terms; to the contrary, it represented a conscious effort on the part of the legislative body of the city to regulate the use of land throughout the city and
thus promote the health, safety or general welfare of the community. State v. Joyner, 286 N.C. 366, 211 S.E.2d 320, appeal dismissed, 422 U.S. 1002, 95 S. Ct. 2618, 45
L. Ed. 2d 666 (1975).
Storage of Gasoline. - A municipal ordinance prohibiting storage of gasoline within the fire district of the city in tanks with a capacity greater than 4,400 gallons bore sufficient relationship to the public safety to come within the police power of
the municipality, at least for purpose of sustaining a finding to that effect upon the hearing of an order to show cause why a temporary order restraining the violation of the ordinance should not be continued to the hearing.
City of Fayetteville v. Spur Distrib. Co., 216 N.C. 596, 5 S.E.2d 838 (1939).
Ordinance that could effectively prohibit all off-premise outdoor advertising signs in the city was a proper exercise of city's police power and did not violate the plaintiff 's rights under U.S. Const., Amend. I or U.S. Const., Amend. XIV. Nor was the ordinance invalid on its face as a "taking without just compensation." Whether the ordinance violated plaintiff 's rights under U.S. Const., Amend. V. or U.S. Const., Amend. XIV required findings of fact to determine whether there had been an unconstitutional taking as applied to plaintiff. Georgia Outdoor Adv., Inc. v. City of Waynesville, 900 F.2d 783 (4th Cir. 1990).
Authority to Determine What Signs Will Be Permitted in Each District. - Subject to constitutional limitations, a city council has authority to determine and define legislatively what signs will be permitted in each respective zone or district. Schloss
v. Jamison, 262 N.C. 108, 136 S.E.2d 691 (1964).
When rezoning property from one general use district with fixed permitted uses to another general use district with fixed permitted uses, a city council must determine that the property is suitable for all uses permitted in the new general use district,
even where it has additional authority to consider a development plan in passing upon a rezoning request and to require any submitted site plan to conform therewith. Hall v. City of Durham,
323 N.C. 293, 372 S.E.2d 564, cert. denied, 323 N.C. 629, 374 S.E.2d 586 (1988).
Zoning Based on Race Invalid. - A zoning ordinance limiting the uses of property solely on the basis of race is beyond the scope of police power, since the reserved police power of the State must stop when it encroaches on the protection afforded the
citizen by the federal Constitution. Clinard v. City of Winston-Salem, 217 N.C. 119, 6 S.E.2d 867, 126 A.L.R. 634 (1940).
Rezoning Held Invalid as Contract Zoning. - Where city council considered a proposed development plan, as well as collateral representations concerning adjacent property and deed restrictions controlling future use of the rezoned site, but did not determine
the suitability of the land for other uses of the classification in question, the challenged rezoning constituted unlawful contract zoning. Hall v. City of Durham, 88 N.C. App. 53, 362 S.E.2d 791 (1987), aff'd, 323 N.C. 293, 372 S.E.2d 564 (1988).
Denial of a property owner's subdivision application was properly reversed because the property owner complied with the general and technical requirements of the town's subdivision ordinance since substantial evidence did not support findings regarding
overcrowding of schools, increased traffic, and incompatibility with the existing neighborhood; also, remand for clarification of subjective criteria in the ordinance was reasonable. Blue Ridge Co., L.L.C. v. Town of Pineville,
188 N.C. App. 466, 655 S.E.2d 843, review denied, review dismissed, as moot, 362 N.C. 679, 669 S.E.2d 742 (2008).
Owner Occupancy Ordinance. - Wilmington, N.C. Land Development Code
§
18-285(g), to the extent it required owner-occupancy of a property, was unconstitutional. It regulated the lawful ownership of property, rather than the use of it, and G.S. 160A-381(a), while allowing cities the
power to regulate property, only allowed regulation to the extent of promoting health, safety, and general welfare principles as set forth in G.S. 160A-383. City of Wilmington v. Hill, 189 N.C. App. 173, 657 S.E.2d 670 (2008).
Environmental Ordinance. - Trial court properly entered a declaratory judgment that a town ordinance which prohibited caged and housed animals within 200 feet of a lake or any stream that drained into the lake, for the purpose of protecting the town's
water supply, was a zoning ordinance as opposed to an ordinance derived from the town's police power. Town of Beech Mt. v. Genesis Wildlife Sanctuary, Inc., 247 N.C. App. 444, 786 S.E.2d 335 (2016).
E. CONDITIONAL OR SPECIAL USE PERMITS.
.
Conditional or Special Use Permit Defined. - A conditional use or a special use permit is one issued for a use which the ordinance expressly permits in a designated zone upon proof that certain facts and conditions detailed in the ordinance exist. Coastal
Ready-Mix Concrete Co. v. Board of Comm'rs, 299 N.C. 620, 265 S.E.2d 379, rehearing denied, 300 N.C. 562, 270 S.E.2d 106 (1980).
A "special exception" within the meaning of a zoning ordinance is one which is expressly permitted in a given zone upon proof that certain facts and conditions detailed in the ordinance exist. It is granted by the board of adjustment, after a public hearing,
upon a finding that the specified conditions have been satisfied. Keiger v. Winston-Salem Bd. of Adjustment, 278 N.C. 17, 178 S.E.2d 616 (1971).
Special Use Permit Not Required Where No Power to Zone Exists. - Rocky Mount Board of Adjustment had no authority to require a special use permit on the part of the Nash-Rocky Mount Board of Education with regard to its erection of a parking lot, because
a parking lot was not a building or the use of a building as that term was provided for in the 2003 version of G.S. 160A-392 applicable to the matter; therefore, the Board of Adjustment had no zoning power and no special use
permit was needed. Nash-Rocky Mount Bd. of Educ. v. Rocky Mount Bd. of Adjustment, 169 N.C. App. 587, 610 S.E.2d 255 (2005).
Safeguards against arbitrary action by zoning boards in granting or denying special use permits are not only to be found in specific guidelines for their action. Equally important are requirements that in each instance the board (1) follow the procedures specified in the ordinance; (2) conduct its hearings in accordance with fair-trial standards; (3) base its findings of fact only upon competent, material, and substantial evidence; and (4) in allowing or denying the application, state the basic facts on which it relied with sufficient specificity to inform the parties, as well as the court, what induced its decision. Humble Oil & Ref. Co. v. Board of Aldermen, 284 N.C. 458, 202 S.E.2d 129 (1974).
In passing upon an application for a special permit, a town council may not violate at will the regulations it has established for its own procedure; it must comply with the provisions of the applicable ordinance. This requirement is necessary in order to accord due process and equal protection to applicants and to refute charges that any denial is an arbitrary discrimination against the property owner. Piney Mt. Neighborhood Ass'n v. Town of Chapel Hill, 63 N.C. App. 244, 304 S.E.2d 251 (1983).
When a town council conducts a quasi-judicial hearing to determine facts prerequisite to issuance of a permit, it can dispense with no essential element of a fair trial. The applicant must have the opportunity to give evidence, cross-examine witnesses,
and inspect documents; and unsworn statements may not be used to support findings absent waiver or stipulation. In allowing or denying the application, the council must state the basic facts on which it relied with sufficient
specificity to inform the parties, as well as the court, what induced its decision. Piney Mt. Neighborhood Ass'n v. Town of Chapel Hill, 63 N.C. App. 244, 304 S.E.2d
251 (1983).
Erroneous Denial of Conditional Use Permit. - County commissioners erred in denying a conditional use permit (CUP) to build a solar farm because (1) applicants showed prima facie entitlement to a CUP, as a solar farm was a public utility facility permitted in the zone at issue, and they produced a site plan and competent testimony complying with all CUP requirements and competent, material, and substantial evidence showing compliance with more general zoning requirements, and (2) CUP opponents did not meet their burden with speculative and general lay opinions and bare or vague assertions on a matter requiring scientific, technical or other specialized or personal knowledge outside the experience of an ordinary person. Innovative 55, LLC v. Robeson Cty., 253 N.C. App. 714, 801 S.E.2d 671 (2017).
It was error to deny a special use permit because (1) a county made a legislative decision to permit the use with a special use permit, (2) the applicant made a prima facie showing of entitlement to the permit, and (3) rebuttal evidence of generalized fears and speculation of lay witnesses did not rebut that prima facie showing and the legislative decision. Little River, LLC v. Lee Cty., 257 N.C. App. 55, 809 S.E.2d 42 (2017), review denied, 818 S.E.2d 692, 2018 N.C. LEXIS 878 (N.C. 2018).
Trial court erred in affirming the decision of the county board of adjustment to uphold the denial of a limited liability company's application for a High Impact Land Use (HILU) permit on the ground that its proposed asphalt plant site was located within
1,500 feet of an education center because the center did not qualify as an "educational facility" under the county's HILU ordinance. Appalachian Materials, LLC v. Watauga Cty., 262 N.C. App. 156, 822 S.E.2d 57 (2018), review denied, 824 S.E.2d 419, 2019 N.C. LEXIS 273 (2019).
Standing to Challenge Conditional Use Permit. - Upon de novo review, the appellate court found that the superior court erred when it dismissed the town residents, the country club residents, the architects, and the development team members' appeal under
G.S. 160A-381(c) and G.S. 160A-388 pursuant to a writ of certiorari for lack of standing because the proposed development would have been unlawful without an amendment to the town's zoning ordinances and the issuance of a conditional
use permit. Furthermore, in conjunction with the allegations of proximity contained in the petition, the testimony was sufficient to establish the town residents, the country club residents, the architects, and the development
team members' standing with special damages resulting from water runoff, septic tank pollution, increased noise, increased traffic on narrow roadways, and the danger to the town residents and neighborhood children on the roadways.
McMillan v. Town of Tryon, 200 N.C. App. 282, 683 S.E.2d 743 (2009).
Dismissal based on sovereign immunity was proper because conditional use permitting requires the exercise of substantial discretion on the part of local officials in deciding important community-wide land use policies, and therefore, is legislative and
discretionary in nature. Stephenson v. Town of Garner, 136 N.C. App. 444, 524 S.E.2d 608 (2000).
Practice of conditional use zoning is an approved practice in North Carolina, so long as the action of the local zoning authority in accomplishing the zoning is reasonable, neither arbitrary nor unduly discriminatory, and in the public interest. Chrismon v. Guilford County, 322 N.C. 611, 370 S.E.2d 579 (1988).
Cities are not obliged to use a two-step legislative/ quasi-judicial proceeding in ruling on requests for re-zoning; conditional use zoning is proper as long as the zoning is reasonable, neither arbitrary nor unduly discriminatory, and in the public interest.
Massey v. City of Charlotte, 145 N.C. App. 345, 550 S.E.2d 838, cert. denied, 354 N.C. 219, 554 S.E.2d 342 (2001).
Principal differences between valid conditional use zoning and illegal contract zoning are related and are essentially two in number: First, valid conditional use zoning features merely a unilateral promise from the landowner to the local zoning authority
as to the landowner's intended use of the land in question, while illegal contract zoning anticipates a bilateral contract in which the landowner and the zoning authority make reciprocal promises. Second, in the context of
conditional use zoning, the local zoning authority maintains its independent decision-making authority, while in the contract zoning scenario, it abandons that authority by binding itself contractually with the landowner seeking
a zoning amendment. Chrismon v. Guilford County, 322 N.C. 611, 370 S.E.2d 579 (1988).
It is not necessary that property rezoned to a conditional use district be available for all of the uses allowed under the corresponding general use district. Chrismon v. Guilford County, 322 N.C. 611,
370 S.E.2d 579 (1988).
Concerns about the adverse effect of a proposed development upon traffic congestion and safety are valid. Such concerns support the denial of a special use permit. Ghidorzi Constr., Inc. v. Town of Chapel Hill, 80 N.C. 438,
342 S.E.2d 545, cert. denied, 317 N.C. 703, 347 S.E.2d 41 (1986).
Conditions Attached to a Conditional Use Permit Should be Based on Factual Findings. - Under a town's land use ordinance, a municipal board had the authority to adopt certain conditions when it granted an application for a conditional use permit, however,
the board committed an error of law in adopting two challenged conditions because it failed to make factual findings in support of its decision to impose the challenged conditions. Northwest Prop. Group, LLC v. Town of Carrboro,
201 N.C. App. 449, 687 S.E.2d 1 (2009).
Denial of a special use permit should be based on findings which are supported by competent, material, and substantial evidence appearing in the record. Ghidorzi Constr., Inc. v. Town of Chapel Hill, 80 N.C. App. 438, 342 S.E.2d 545, cert. denied, 317 N.C. 703, 347 S.E.2d 41 (1986).
Where petitioners produced competent, material and substantial prima facie evidence to show their compliance with four general conditions required to obtain a special use permit needed to construct a mobile home park, and where the city council failed
to make adequate findings of fact to support denial of the special use application, such action constituted "an unlawful exercise of legislative power by the Board . . . in violation of Article II, Section I, of the Constitution
of North Carolina." Clark v. City of Asheboro, 136 N.C. App. 114, 524 S.E.2d 46 (1999).
Issuance of Special Use Permit by Board of Adjustment. - Where a municipal ordinance required the board of adjustment to issue a special use permit when it made certain affirmative findings specified in the ordinance, the board's determination of whether
to issue a special use permit was not an unlawful exercise of legislative power. Kenan v. Board of Adjustment, 13 N.C. App. 688, 187 S.E.2d 496, cert. denied, 281 N.C. 314,
188 S.E.2d 897 (1972).
Spot zoning is not invalid per se, but rather, it is beyond the authority of the municipality or county and therefore void only in the absence of a clear showing of a reasonable basis therefor. Chrismon v. Guilford County,
322 N.C. 611, 370 S.E.2d 579 (1988).
Form of Spot Zoning Held Legal. - While the rezoning of two tracts from A-1 to CU-M-2, so as to allow the storage and sale of agricultural chemicals, constituted a form of spot zoning, this activity was not illegal spot zoning. Because of the substantial
benefits created for the surrounding community by the rezoning and because of the close relationship between the likely uses of the rezoned property and the uses already present in the surrounding tracts, there was a clear
showing of a reasonable basis for the spot zoning. Chrismon v. Guilford County, 322 N.C. 611, 370 S.E.2d 579 (1988).
Judicial review of town decisions to grant or deny conditional use permits is provided for in G.S. 160A-388(e). Coastal Ready-Mix Concrete Co. v. Board of Comm'rs, 299 N.C. 620, 265 S.E.2d 379,
rehearing denied, 300 N.C. 562, 270 S.E.2d 106 (1980).
Civil Action Not Appropriate Avenue for Appeal. - Neither a trial court nor an appellate court had subject matter jurisdiction over a developer's appeal of a city council's denial of a special use permit to construct a cemetery where the proper avenue
of appeal for the developer was to have petitioned for certiorari under G.S. 160A-381(c). Northfield Dev. Co. v. City of Burlington, 165 N.C. App. 885, 599 S.E.2d 921
(2004), cert. denied, 359 N.C. 191, 607 S.E.2d 278 (2004).
Scope of Review of Denial of Permit. - In reviewing a municipality's decision on an application for a special use permit, the court's scope of review includes: (1) Reviewing the record for errors in law, (2) insuring that procedures specified by law in both statute and ordinance are followed, (3) insuring that appropriate due process rights of a petitioner are protected including the right to offer evidence, cross-examine witnesses, and inspect documents, (4) insuring that decisions of town boards are supported by competent, material and substantial evidence in the whole record, and (5) insuring that decisions are not arbitrary and capricious. Ghidorzi Constr., Inc. v. Town of Chapel Hill, 80 N.C. App. 438, 342 S.E.2d 545, cert. denied, 317 N.C. 703, 347 S.E.2d 41 (1986).
The question before the Court of Appeals is not whether the evidence before the superior court supported that court's order as to the special use application, but whether the evidence before the town council supported the council's action. The superior court is not the trier of fact. That is the function of the town council. Ghidorzi Constr., Inc. v. Town of Chapel Hill, 80 N.C. App. 438, 342 S.E.2d 545, cert. denied, 317 N.C. 703, 347 S.E.2d 41 (1986).
Where applicants for a conditional use permit did not show that a proposed crematorium would not be detrimental to or endanger the general welfare, they did not show that the proposed use would comply with all of a city's standards; in affirming the denial of the application, the trial court applied the proper standard of review in the nature of certiorari pursuant to G.S. 160A-381(c), and its decision was supported by substantial evidence. Butler v. City Council of Clinton, 160 N.C. App. 68, 584 S.E.2d 103 (2003).
Town's exercise of its statutorily granted prerogative pursuant to G.S. 160A-381 to adopt a quasi-judicial process when conducting a consolidated hearing rezoning proposals and conditional use permit requests required the trial court to comply with the proper scope of review set for in case law; because the trial court failed to apply the proper scope of review, the case was revered and remanded. McMillan v. Town of Tryon, 200 N.C. App. 228, 683 S.E.2d 747 (2009).
Based on the language of G.S. 160A-381, a trial court properly applied the whole record test in finding that a board of adjustment's denial of a county's application for zoning approval was not supported by substantial evidence, as the denial of approval
for alternative parking for a courthouse, and the refusal to grant a zoning compliance permit, was arbitrary and capricious. Orange County v. Town of Hillsborough, 219 N.C. App. 127, 724 S.E.2d 560 (2012).
Whole Record Test. - In determining the sufficiency of the evidence supporting the town council's decision to deny an application for a special use permit, the whole record test is applied, considering not only the evidence which justifies the council's decision, but also that which fairly detracts from it. The whole record test does not allow the Court of Appeals or the superior court to replace the council's judgment as between two reasonably conflicting views. Ghidorzi Constr., Inc. v. Town of Chapel Hill, 80 N.C. App. 438, 342 S.E.2d 545, cert. denied, 317 N.C. 703, 347 S.E.2d 41 (1986).
In determining the sufficiency of the evidence to support a council's decision to issue special use permits, the court applies the whole record test which requires the examination of all competent evidence to determine if the council's decision is based
upon substantial evidence. Behringer v. City of Raleigh, 107 N.C. App. 505, 421 S.E.2d 179 (1992).
County Zoning Board Exceeded Its Delegated Authority. - County zoning board exceeded its authority when it voided a mine operator's special use exception permit after finding violations, then treated the mine operator's current permit application as one
for a new permit and applied the standard under a new ordinance; instead of voiding the original permit, which was issued in 1997, the board should have considered the application in light of the standards in effect prior to
October of 2000, the date of the new ordinance, and had the board done so, it should have found that the mine operator met the burden when the mine operator produced a current permit from the Department of Environment, Health,
and Natural Resources, Division of Land Resources for the activities contemplated and the 1997 ordinance had no other, more stringent conditions specified. Hewett v. County of Brunswick, 155 N.C. App. 138, 573 S.E.2d 688 (2002).
F. BUILDING PERMITS.
.
Building Inspector Must Follow Literal Provisions of Regulations. - In the issuing of building permits, the building inspector, a purely administrative agent, must follow the literal provisions of the zoning regulations. Lee v. Board of Adjustment,
226 N.C. 107, 37 S.E.2d 128 (1946).
Vested Rights Under Building Permit. - Issuance of a building permit creates no vested right to build contrary to the provisions of a subsequently enacted zoning ordinance, unless the permittee, acting in good faith, has made substantial expenditures
in reliance upon the permit at a time when they did not violate declared public policy. Keiger v. Winston-Salem Bd. of Adjustment, 281 N.C. 715, 190 S.E.2d 175 (1972).
When builder obtains a permit knowing of a pending ordinance which would make authorized construction a nonconforming use and hereafter hurriedly makes expenditures in an attempt to acquire a vested right before the law can be changed, he does not act
in good faith and acquires no rights under the permit. Keiger v. Winston-Salem Bd. of Adjustment, 281 N.C. 715, 190 S.E.2d 175 (1972).
Permit Could Not Be Arbitrarily Denied. - The town board could not deny the petitioners a conditional use permit where the decision was based on opinions and generalized fears, even those of a realtor, rather than on facts or other substantial evidence
that the operation of an extended-stay hotel would "materially endanger the public health or safety" or that the project would "substantially injure the value of adjoining or abutting property"; although the project would increase
traffic, no evidence indicated that this would mean an intensification of traffic congestion or a traffic hazard, nor were the expert opinions expressing concern about property values supported by certified appraisals or market
studies. Sun Suites Holdings, L.L.C. v. Board of Aldermen of Garner, 139 N.C. App. 269, 533 S.E.2d 525, cert. denied, 353 N.C. 280, 546 S.E.2d
397 (2000).
Permit Could Not Be Denied Under Invalid Amendment. - An applicant's right to a permit, denied under an existing valid ordinance which entitled him to it, could not be defeated by a purported amendment which was void ab initio because it was not adopted
as required by the enabling statute. Keiger v. Winston-Salem Bd. of Adjustment, 281 N.C. 715, 190 S.E.2d 175 (1972).
An ordinance which classifies mobile homes differently from modular and site-built homes is valid. The protection of property values in the zoned area is a legitimate governmental objective, and the method of construction of homes may be determined by a city governing board as affecting the price of homes. The prohibition of such buildings is rationally related to the protection of the value of other homes in the area. Duggins v. Town of Walnut Cove, 63 N.C. App. 684, 306 S.E.2d 186, cert. denied, 309 N.C. 819, 310 S.E.2d 348 (1983), appeal dismissed, 466 U.S. 946, 104 S. Ct. 2145, 80 L. Ed. 2d 532 (1984).
A town is clearly authorized by this section to regulate and restrict the location and use of any buildings or structures for residential and other purposes, including restricting the location of mobile homes. Duggins v. Town of Walnut Cove,
63 N.C. App. 684, 306 S.E.2d 186, cert. denied, 309 N.C. 819, 310 S.E.2d 348 (1983), appeal dismissed, 466 U.S. 946, 104 S. Ct. 2145, 80 L. Ed. 2d 532 (1984).
G. CERTIORARI.
.
Aggrieved Party for Judicial Review. - An adjoining property owner was an aggrieved party, even though she failed to allege such, and the trial court had jurisdiction to allow her to amend her petition for certiorari, where she sought certiorari for judicial
review of the zoning board's grant of a setback variance. Darnell v. Town of Franklin, 131 N.C. App. 846, 508 S.E.2d 841 (1998).
Timeliness of Certiorari Petition Is Determined by Superior Court. - Had the Legislature intended this section to contain a 30-day limit, it would have included one in the statute. As such a limit is not present in this section, the Supreme Court, must
assume the Legislature intended to leave determination of the timeliness of a petition for certiorari to the superior court in which the petition is filed. White Oak Properties, Inc. v. Town of Carrboro,
313 N.C. 306, 327 S.E.2d 882 (1985).
Timeliness Depends on Circumstances. - In the absence of a designated time period within which to seek review of a decision by a board of aldermen, the superior court must determine, in its discretion, whether a petition for writ of certiorari has been
filed within a reasonable time of the decision of the board of aldermen. What is a reasonable time must, in all cases, depend upon the circumstances. White Oak Properties, Inc. v. Town of Carrboro,
313 N.C. 306, 327 S.E.2d 882 (1985).
Timeliness Decided Under Equitable Doctrine of Laches. - Generally, whether a petition for certiorari has been timely filed can be decided by determining whether the petitioner's delay bars him under the equitable doctrine of laches from being afforded
review. White Oak Properties, Inc. v. Town of Carrboro, 313 N.C. 306, 327 S.E.2d 882 (1985).
Section 160A-388(e) Compared. - As with this section, G.S. 160A-388(e) provides that " [e]very decision of the board [of adjustment] shall be subject to review by the superior court by proceedings in the nature of certiorari." Unlike this section, however,
G.S. 160A-388(e) adds that " [a]ny petition for review by the superior court shall be filed with the clerk of superior court within 30 days after the decision of the board [of adjustment] is filed in such office as the ordinance
specifies, or after a written copy thereof is delivered to every aggrieved party . . . whichever is later." White Oak Properties, Inc. v. Town of Carrboro, 313 N.C. 306,
327 S.E.2d 882 (1985).
Former Chapter 160, Article 14, contained no provision for judicial review by certiorari or otherwise of the action of the legislative body
of cities and towns with reference to the enactment, amendment or repeal of zoning regulations. In re Markham, 259 N.C. 566, 131 S.E.2d 329, cert. denied, 375 U.S. 931, 84 S. Ct. 332, 11 L. Ed.
2d 263 (1963).
Superior Court Sitting as Appellate Court. - In reviewing errors raised by plaintiff's petition for writ of certiorari pursuant to this section, the superior court was sitting as a court of appellate review. Batch v. Town of Chapel Hill, 326 N.C. 1, 387 S.E.2d 655, cert. denied, 496 U.S. 931, 110 S. Ct. 2631, 110 L. Ed. 2d 651 (1990).
When a superior court's jurisdiction is invoked under this section, the superior court judge sits as an appellate court, not a trial court. Estates, Inc. v. Town of Chapel Hill, 130 N.C. App. 664,
504 S.E.2d 296 (1998).
Remedies in Superior Court. - The superior court had no authority to grant an injunction where it was sitting as an appellate court in review of a quasi-judicial decision by the town council. Estates, Inc. v. Town of Chapel Hill,
130 N.C. App. 664, 504 S.E.2d 296 (1998).
Mandate of Superior Court is Judgment. - The term "judgment" as used in G.S. 1A-1-62(c) must include the mandate of a superior court when it sits as an appellate court to review the decision of a town council in granting or denying a special use permit.
Estates, Inc. v. Town of Chapel Hill, 130 N.C. App. 664, 504 S.E.2d 296 (1998).
Consideration of Summary Judgment Motion on Writ of Certiorari Held Improper. - In case contesting town council's denial of plaintiff's subdivision plan, the trial court's decision to consider a summary judgment motion on a writ of certiorari was improper;
however, it was proper for the motion for summary judgment to come before the trial court on the questions raised in plaintiff's complaint, which had been improperly joined with her petition for writ of certiorari. Batch v.
Town of Chapel Hill, 326 N.C. 1, 387 S.E.2d 655, cert. denied, 496 U.S. 931, 110 S. Ct. 2631, 110 L. Ed. 2d 651 (1990).
Opinions of Attorney General
Editor's Note. - The opinion below was rendered under former G.S. 153A-340, or prior law.
Height of State Owned and Operated Structures. - This section does not grant authority to a county to regulate the height of state owned and operated structures under its general police power. See opinion of Attorney General to Mr. Jeffery M. Hedrick, Watauga County Attorney, 2000 N.C. AG LEXIS 33 (9/20/2000).
§ 160D-703. Zoning districts.
-
Types of Zoning Districts. - A local government may divide its territorial jurisdiction into zoning districts of any number, shape, and area deemed best suited to carry out the purposes of this Article. Within those districts, it may regulate and restrict
the erection, construction, reconstruction, alteration, repair, or use of buildings, structures, or land. Zoning districts may include, but are not be limited to, the following:
- Conventional districts, in which a variety of uses are allowed as permitted uses or uses by right and that may also include uses permitted only with a special use permit.
- Conditional districts, in which site plans or individualized development conditions are imposed.
- Form-based districts, or development form controls, that address the physical form, mass, and density of structures, public spaces, and streetscapes.
- Overlay districts, in which different requirements are imposed on certain properties within one or more underlying conventional, conditional, or form-based districts.
- Districts allowed by charter.
- Conditional Districts. - Property may be placed in a conditional district only in response to a petition by all owners of the property to be included. Specific conditions may be proposed by the petitioner or the local government or its agencies, but only those conditions approved by the local government and consented to by the petitioner in writing may be incorporated into the zoning regulations. Unless consented to by the petitioner in writing, in the exercise of the authority granted by this section, a local government may not require, enforce, or incorporate into the zoning regulations any condition or requirement not authorized by otherwise applicable law, including, without limitation, taxes, impact fees, building design elements within the scope of G.S. 160D-702(b), driveway-related improvements in excess of those allowed in G.S. 136-18(29) and G.S. 160A-307, or other unauthorized limitations on the development or use of land. Conditions and site-specific standards imposed in a conditional district shall be limited to those that address the conformance of the development and use of the site to local government ordinances, plans adopted pursuant to G.S. 160D-501, or the impacts reasonably expected to be generated by the development or use of the site. The zoning regulation may provide that defined minor modifications in conditional district standards that do not involve a change in uses permitted or the density of overall development permitted may be reviewed and approved administratively. Any other modification of the conditions and standards in a conditional district shall follow the same process for approval as are applicable to zoning map amendments. If multiple parcels of land are subject to a conditional zoning, the owners of individual parcels may apply for modification of the conditions so long as the modification would not result in other properties failing to meet the terms of the conditions. Any modifications approved apply only to those properties whose owners petition for the modification.
- Uniformity Within Districts. - Except as authorized by the foregoing, all regulations shall be uniform for each class or kind of building throughout each district but the regulations in one district may differ from those in other districts.
- Standards Applicable Regardless of District. - A zoning regulation or unified development ordinance may also include development standards that apply uniformly jurisdiction-wide rather than being applicable only in particular zoning districts.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 16, 50(b), 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 50(b), effective June 19, 2020, provides: "Sections 5, 10, 14, 16, 17, 18, 45, 46, 47, [which amended or enacted 160D-108, 160D-108.1, 160D-405, 160D-603, 160D-703, 160D-705, 160D-706, 160D-1402, 160D-1403.1, 160D-1403.2, respectively] and the amendments to G.S. 160D-1405(c) in Section 48 incorporate in Chapter 160D of the General Statutes the provisions of Sections 1.2, 1.3, 1.6, 1.7, 1.8, 1.9, 1.10, 1.12, 1.13, 1.14, 1.15, and 1.17 of S.L. 2019-111 [which amended or enacted former 160A-360.1, 153A-320.1, 160A-385, 160A-385.1, 153A-344, 153A-344.1, 160A-388, 160A-393.1, 160A-364.1, 160A-393, 160A-393.2, 160A-381, 153A-340, 160A-382, 153A-342, 153A-346, and 160A-390, respectively], clarify and restate the intent of existing law, and apply to ordinances adopted before, on, and after the effective date of this act."
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 16, effective June 19, 2020, in subsection (b), in the first sentence, deleted "mutually" preceding "approved by" and added "consented to by" and "in writing," and added the second sentence; and made minor stylistic changes.
Legal Periodicals. - For comment, "Planned Unit Development and North Carolina Enabling Legislation," see 51 N.C.L. Rev. 1455 (1973).
For survey of 1979 property law, see 58 N.C.L. Rev. 1509 (1980).
For comment discussing contract zoning and conditional use zoning in North Carolina, see 68 N.C.L. Rev. 177 (1989).
CASE NOTES
I. IN GENERAL.
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 153A-342, former G.S. 160A-382, and prior law.
II. DECISIONS UNDER FORMER G.S. 153A-342.
Editor's Note. - The following cases were decided under former G.S. 153A-342 and prior law.
Zoning Map Requirement. - This section does not require the county to have a zoning map for the entire county when its objective is to implement zoning on an area by area basis; only a map of the area being zoned and a full text of the zoning ordinance
zoned are required. Frizzelle v. Harnett County, 106 N.C. App. 234, 416 S.E.2d 421, cert. denied, 332 N.C. 147, 419 S.E.2d 571 (1992).
The practice of conditional use zoning is an approved practice in North Carolina, so long as the action of the local zoning authority in accomplishing the zoning is reasonable, neither arbitrary nor unduly discriminatory, and in the public interest. Chrismon
v. Guilford County, 322 N.C. 611, 370 S.E.2d 579 (1988).
Property Rezoned to Conditional Use District. - It is not necessary that property rezoned to a conditional use district be available for all of the uses allowed under the corresponding general use district. Chrismon v. Guilford County,
322 N.C. 611, 370 S.E.2d 579 (1988).
Spot zoning is not invalid per se, but rather, it is beyond the authority of the municipality or county and therefore void only in the absence of a clear showing of a reasonable basis therefor. Chrismon v. Guilford County,
322 N.C. 611, 370 S.E.2d 579 (1988).
Clear Showing of Reasonable Basis for Spot Zoning. - While the rezoning of two tracts from A-1 to CU-M-2, so as to allow the storage and sale of agricultural chemicals, constituted a form of spot zoning, this activity was legal and not illegal spot zoning.
Because of the substantial benefits created for the surrounding community by the rezoning and because of the close relationship between the likely uses of the rezoned property and the uses already present in the surrounding
tracts, there was a clear showing of a reasonable basis for the spot zoning. Chrismon v. Guilford County, 322 N.C. 611, 370 S.E.2d 579 (1988).
The principal differences between valid conditional use zoning and illegal contract zoning are related and are essentially two in number: First, valid conditional use zoning features merely a unilateral promise from the landowner to the local zoning authority
as to the landowner's intended use of the land in question, while illegal contract zoning anticipates a bilateral contract in which the landowner and the zoning authority make reciprocal promises. Second, in the context of
conditional use zoning, the local zoning authority maintains its independent decision-making authority, while in the contract zoning scenario, it abandons that authority by binding itself contractually with the landowner seeking
a zoning amendment. Chrismon v. Guilford County, 322 N.C. 611, 370 S.E.2d 579 (1988).
Rezoning Held Valid Conditional Use Zoning. - The rezoning of two tracts of land from A-1 to CU-M-2 so as to allow the storage and sale of agricultural chemicals was valid conditional use zoning and not illegal contract zoning. Chrismon v. Guilford County,
322 N.C. 611, 370 S.E.2d 579 (1988).
Zoning Ordinance Invalid Where Improperly Enacted. - County's failure to comply with G.S. 153A-323 in enacting the Buncombe County, N.C. Multi-Family Dwelling Ordinance (Ordinance) rendered the ordinance invalid; although the county claimed that the Ordinance
was adopted in the exercise of its general police power pursuant to G.S. 153A-121, the Ordinance substantially affected land use, was therefore a zoning ordinance, and the county was not permitted to evade the legislative notice
requirements imposed by G.S. 153A-323 by labeling the Ordinance an exercise of police power. Thrash Ltd. P'ship v. County of Buncombe, 195 N.C. App. 727, 673 S.E.2d 689
(2009).
A county sign ordinance did not violate the equal protection clause of U.S. Const., Amend. XIV or N.C. Const., Art. I,
§
19, because the county would not enforce the ordinance with respect to any person owning or operating a sign in certain municipalities within the county, since the county could not exercise zoning authority within
a city which had enacted a zoning ordinance, and it could defer from zoning within cities. County of Cumberland v. Eastern Fed. Corp., 48 N.C. App. 518, 269 S.E.2d 672, cert. denied, 301 N.C. 527,
273 S.E.2d 453 (1980).
III. DECISIONS UNDER FORMER G.S. 160A-382.
Editor's Note. - The following cases were decided under former G.S. 160A-382 and prior law.
Two of the essentials of a comprehensive zoning ordinance are: (1) it applies to all territory subject to the zoning jurisdiction of a city council, including the area beyond and surrounding the corporate limits of the city for a distance of one mile
in all directions; and (2) with reference to property within a particular district or zone, all uses permissible in the zone are available as of right to the owner. Allred v. City of Raleigh,
277 N.C. 530, 178 S.E.2d 432 (1971).
The law does not require all areas of a defined class to be contiguous, but when a classification has been made, all areas in each class must be subject to the same restrictions. Decker v. Coleman, 6 N.C. App. 102, 169 S.E.2d 487 (1969).
Different areas in a municipality may be put in the same class. Decker v. Coleman, 6 N.C. App. 102, 169 S.E.2d 487 (1969).
It is not required that zoning district lines coincide with property lines, regardless of the area involved. Penny v. City of Durham, 249 N.C. 596, 107 S.E.2d 72 (1959).
To hold that zoning district lines must coincide with property lines, regardless of area involved, would be to render the act largely ineffective. Heaton v. City of Charlotte, 277 N.C. 506, 178
S.E.2d 352 (1971).
Restrictions on Use Must Be Uniform in All Areas in Same Class. - When a city adopts a zoning ordinance, restrictions on use must be uniform in all areas in a defined class or district. Decker v. Coleman, 6 N.C. App. 102, 169 S.E.2d 487 (1969).
When a classification of a zone has been made, all the areas in each class must be subject to the same restrictions. Allred v. City of Raleigh, 277 N.C. 530, 178 S.E.2d 432 (1971).
The regulations prescribed shall be uniform for each class or kind of building throughout each district, but the regulations of one district may differ from those of the others. Bizzell v. Board of Aldermen, 192 N.C. 364,
135 S.E. 58 (1926).
How Cases Determined. - In one part of a district a filling station may be noxious or offensive to the public within the purview of the ordinance and in another part it may not be; at one place it may menace the public safety and at another it may not.
Conditions and probable results must be taken into account. Thus, while the board of adjustment passes on individual cases, each case is determined in the contemplation of the statute and the ordinance by a uniform rule. Harden
v. City of Raleigh, 192 N.C. 395, 135 S.E. 151 (1926).
Property may not be rezoned in reliance upon representations of the applicant. Hall v. City of Durham, 88 N.C. App. 53, 362 S.E.2d 791 (1987), aff'd, 323 N.C. 293, 372
S.E.2d 564 (1988).
Rezoning may not be based on assurances that the applicant will make a specific use of the property. Hall v. City of Durham, 88 N.C. App. 53, 362 S.E.2d 791 (1987), aff'd, 323 N.C. 293,
372 S.E.2d 564 (1988).
Rezoning must take into account all permitted uses under the new classification. Hall v. City of Durham, 88 N.C. App. 53, 362 S.E.2d 791 (1987), aff'd, 323 N.C. 293,
372 S.E.2d 564 (1988).
Practice of conditional use zoning is an approved practice in North Carolina, so long as the action of the local zoning authority in accomplishing the zoning is reasonable, neither arbitrary nor unduly discriminatory, and in the public interest. Chrismon
v. Guilford County, 322 N.C. 611, 370 S.E.2d 579 (1988).
Exceptions Or Decreased Standards. - There was no merit to an argument that G.S. 160A-382 did not permit exceptions or decreased standards. Rakestraw v. Town of Knightdale, 188 N.C. App. 129, 654
S.E.2d 825 (2008), review denied, 362 N.C. 237, 659 S.E.2d 739 (2008).
When Consent of Property Owners Required. - Conditional use zoning authorized by this section requires the consent of all the property owners within the area to be rezoned, and the only use which can be made of the land which is conditionally rezoned
is that which is specified in the conditional use permit. Rezoning from one general use district with listed permitted uses to another general use district does not require the consent of such property owners and does not limit
the future use of the property to a specific use, but allows changes from one permitted use to any other use permitted in the new zone. Hall v. City of Durham, 323 N.C. 293,
372 S.E.2d 564, cert. denied, 323 N.C. 629, 374 S.E.2d 586 (1988).
Principal differences between valid conditional use zoning and illegal contract zoning are related and are essentially two in number: First, valid conditional use zoning features merely a unilateral promise from the landowner to the local zoning authority
as to the landowner's intended use of the land in question, while illegal contract zoning anticipates a bilateral contract in which the landowner and the zoning authority make reciprocal promises. Second, in the context of
conditional use zoning, the local zoning authority maintains its independent decision-making authority, while in the contract zoning scenario, it abandons that authority by binding itself contractually with the landowner seeking
a zoning amendment. Chrismon v. Guilford County, 322 N.C. 611, 370 S.E.2d 579 (1988).
It is not necessary that property rezoned to a conditional use district be available for all of the uses allowed under the corresponding general use district. Chrismon v. Guilford County, 322 N.C. 611,
370 S.E.2d 579 (1988).
Spot zoning is not invalid per se, but rather, it is beyond the authority of the municipality or county and therefore void only in the absence of a clear showing of a reasonable basis therefor. Chrismon v. Guilford County,
322 N.C. 611, 370 S.E.2d 579 (1988).
Spot Zoning Held Legal. - While the rezoning of two tracts from A-1 to CU-M-2, so as to allow the storage and sale of agricultural chemicals, constituted a form of spot zoning, this activity was not illegal spot zoning. Because of the substantial benefits
created for the surrounding community by the rezoning and because of the close relationship between the likely uses of the rezoned property and the uses already present in the surrounding tracts, there was a clear showing of
a reasonable basis for the spot zoning. Chrismon v. Guilford County, 322 N.C. 611, 370 S.E.2d 579 (1988).
Rezoning Held Invalid as Contract Zoning. - Where city council considered a proposed development plan, as well as collateral representations concerning adjacent property and deed restrictions controlling future use of the rezoned site, but did not determine
the suitability of the land for other uses of the classification in question, the challenged rezoning constituted unlawful contract zoning. Hall v. City of Durham, 88 N.C. App. 53, 362 S.E.2d 791 (1987), aff'd, 323 N.C. 293, 372 S.E.2d 564 (1988).
No Zoning Power Over School's Parking Lot. - Rocky Mount Board of Adjustment had no authority to require a special use permit on the part of the Nash-Rocky Mount Board of Education with regard to its erection of a parking lot, because a parking lot was
not a building or the use of a building as that term was provided for in the 2003 version of G.S. 160A-392 applicable to the matter; therefore, the Board of Adjustment had no zoning power and no special use permit was needed.
Nash-Rocky Mount Bd. of Educ. v. Rocky Mount Bd. of Adjustment, 169 N.C. App. 587, 610 S.E.2d 255 (2005).
§ 160D-704. Incentives.
- For the purpose of reducing the amount of energy consumption by new development, a local government may adopt ordinances to grant a density bonus, make adjustments to otherwise applicable development requirements, or provide other incentives within its planning and development regulation jurisdiction, if the person receiving the incentives agrees to construct new development or reconstruct existing development in a manner that the local government determines, based on generally recognized standards established for such purposes, makes a significant contribution to the reduction of energy consumption and increased use of sustainable design principles.
-
In order to encourage construction that uses sustainable design principles and to improve energy efficiency in buildings, a local government may charge reduced building permit fees or provide partial rebates of building permit fees for buildings that
are constructed or renovated using design principles that conform to or exceed one or more of the following certifications or ratings:
- Leadership in Energy and Environmental Design (LEED) certification or higher rating under certification standards adopted by the U.S. Green Building Council.
- A One Globe or higher rating under the Green Globes program standards adopted by the Green Building Initiative.
- A certification or rating by another nationally recognized certification or rating system that is equivalent or greater than those listed in subdivisions (1) and (2) of this subsection.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-705. Quasi-judicial zoning decisions.
- Provisions of Ordinance. - The zoning or unified development ordinance may provide that the board of adjustment, planning board, or governing board hear and decide quasi-judicial zoning decisions. The board shall follow quasi-judicial procedures as specified in G.S. 160D-406 when making any quasi-judicial decision.
- Appeals. - Except as otherwise provided by this Chapter, the board of adjustment shall hear and decide appeals from administrative decisions regarding administration and enforcement of the zoning regulation or unified development ordinance and may hear appeals arising out of any other ordinance that regulates land use or development. The provisions of G.S. 160D-405 and G.S. 160D-406 are applicable to these appeals.
- Special Use Permits. - The regulations may provide that the board of adjustment, planning board, or governing board hear and decide special use permits in accordance with principles, conditions, safeguards, and procedures specified in the regulations. Reasonable and appropriate conditions and safeguards may be imposed upon these permits. Where appropriate, such conditions may include requirements that street and utility rights-of-way be dedicated to the public and that provision be made for recreational space and facilities. Conditions and safeguards imposed under this subsection shall not include requirements for which the local government does not have authority under statute to regulate nor requirements for which the courts have held to be unenforceable if imposed directly by the local government, including, without limitation, taxes, impact fees, building design elements within the scope of G.S. 160D-702(b), driveway-related improvements in excess of those allowed in G.S. 136-18(29) and G.S. 160A-307, or other unauthorized limitations on the development or use of land.
-
Variances. - When unnecessary hardships would result from carrying out the strict letter of a zoning regulation, the board of adjustment shall vary any of the provisions of the zoning regulation upon a showing of all of the following:
- Unnecessary hardship would result from the strict application of the regulation. It is not necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property.
- The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance. A variance may be granted when necessary and appropriate to make a reasonable accommodation under the Federal Fair Housing Act for a person with a disability.
- The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance is not a self-created hardship.
- The requested variance is consistent with the spirit, purpose, and intent of the regulation, such that public safety is secured and substantial justice is achieved.
The regulations may provide that defined minor modifications to special use permits that do not involve a change in uses permitted or the density of overall development permitted may be reviewed and approved administratively. Any other modification or revocation of a special use permit shall follow the same process for approval as is applicable to the approval of a special use permit. If multiple parcels of land are subject to a special use permit, the owners of individual parcels may apply for permit modification so long as the modification would not result in other properties failing to meet the terms of the special use permit or regulations. Any modifications approved apply only to those properties whose owners apply for the modification. The regulation may require that special use permits be recorded with the register of deeds.
No change in permitted uses may be authorized by variance. Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance. Any other development regulation that regulates land use or development may provide for variances from the provisions of those ordinances consistent with the provisions of this subsection.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 17, 50(b), 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 50(b), effective June 19, 2020, provides: "Sections 5, 10, 14, 16, 17, 18, 45, 46, 47, [which amended or enacted 160D-108, 160D-108.1, 160D-405, 160D-603, 160D-703, 160D-705, 160D-706, 160D-1402, 160D-1403.1, 160D-1403.2, respectively] and the amendments to G.S. 160D-1405(c) in Section 48 incorporate in Chapter 160D of the General Statutes the provisions of Sections 1.2, 1.3, 1.6, 1.7, 1.8, 1.9, 1.10, 1.12, 1.13, 1.14, 1.15, and 1.17 of S.L. 2019-111 [which amended or enacted former 160A-360.1, 153A-320.1, 160A-385, 160A-385.1, 153A-344, 153A-344.1, 160A-388, 160A-393.1, 160A-364.1, 160A-393, 160A-393.2, 160A-381, 153A-340, 160A-382, 153A-342, 153A-346, and 160A-390, respectively], clarify and restate the intent of existing law, and apply to ordinances adopted before, on, and after the effective date of this act."
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 17, effective June 19, 2020, added "including, without limitation, taxes, impact fees, building design elements within the scope of G.S. 160D-702(b), driveway-related improvements in excess of those allowed in G.S. 136-18(29) and G.S. 160A-307, or other unauthorized limitations on the development or use of land" at the end of the last sentence in subsection (c); and made minor stylistic changes.
§ 160D-706. Zoning conflicts with other development standards.
- When regulations made under authority of this Article require a greater width or size of yards or courts, or require a lower height of a building or fewer number of stories, or require a greater percentage of a lot to be left unoccupied, or impose other higher standards than are required in any other statute or local ordinance or regulation, the regulations made under authority of this Article govern. When the provisions of any other statute or local ordinance or regulation require a greater width or size of yards or courts, or require a lower height of a building or a fewer number of stories, or require a greater percentage of a lot to be left unoccupied, or impose other higher standards than are required by the regulations made under authority of this Article, the provisions of that statute or local ordinance or regulation govern.
- When adopting regulations under this Article, a local government may not use a definition of building, dwelling, dwelling unit, bedroom, or sleeping unit that is inconsistent with any definition of those terms in another statute or in a rule adopted by a State agency, including the State Building Code Council.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 18, 50(b), 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 50(b), effective June 19, 2020, provides: "Sections 5, 10, 14, 16, 17, 18, 45, 46, 47, [which amended or enacted 160D-108, 160D-108.1, 160D-405, 160D-603, 160D-703, 160D-705, 160D-706, 160D-1402, 160D-1403.1, 160D-1403.2, respectively] and the amendments to G.S. 160D-1405(c) in Section 48 incorporate in Chapter 160D of the General Statutes the provisions of Sections 1.2, 1.3, 1.6, 1.7, 1.8, 1.9, 1.10, 1.12, 1.13, 1.14, 1.15, and 1.17 of S.L. 2019-111 [which amended or enacted former 160A-360.1, 153A-320.1, 160A-385, 160A-385.1, 153A-344, 153A-344.1, 160A-388, 160A-393.1, 160A-364.1, 160A-393, 160A-393.2, 160A-381, 153A-340, 160A-382, 153A-342, 153A-346, and 160A-390, respectively], clarify and restate the intent of existing law, and apply to ordinances adopted before, on, and after the effective date of this act."
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 18, effective June 19, 2020, substituted "building, dwelling, dwelling unit, bedroom, or sleeping unit that is inconsistent with any definition of those terms in another statute or in a rule adopted by a State agency, including the State Building Code Council" for "dwelling unit, bedroom, or sleeping unit that is more expansive than any definition of the same in another statute or in a rule adopted by a State agency" in subsection (b); and made minor stylistic changes.
ARTICLE 8. Subdivision Regulation.
Sec.
§ 160D-801. Authority.
A local government may by ordinance regulate the subdivision of land within its planning and development regulation jurisdiction. In addition to final plat approval, the regulation may include provisions for review and approval of sketch plans and preliminary plats. The regulation may provide for different review procedures for different classes of subdivisions. Decisions on approval or denial of preliminary or final plats may be made only on the basis of standards explicitly set forth in the subdivision or unified development ordinance.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Legal Periodicals. - For comment, "Urban Planning and Land Use Regulation: The Need for Consistency," see 14 Wake Forest L. Rev. 81 (1978).
CASE NOTES
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 153A-330, former G.S. 160A-371, and prior law.
Limitation on Authority of County Commissioners to Adopt Subdivision Control Ordinance. - The authority of a board of county commissioners to adopt a subdivision control ordinance may be lawfully exercised only within prescribed limitations. Thus, a subdivision
ordinance adopted by the board of county commissioners applies solely to land lying within the county and outside the subdivision-regulation jurisdiction of any municipality. State v. McBane, 276 N.C. 60,
170 S.E.2d 913 (1969), decided under former law.
Failure to Follow Quasi-Judicial Process. - Where ordinance adopted by city required the city to use a quasi-judicial process when reviewing an application to develop property, council's decision denying a developer's application to build affordable housing
would be reversed, because the council did not use fair-trial standards in reaching its decision and did not state the facts upon which it based its decision with sufficient specificity that the appellate court could review the
decision to determine if it was lawful. Guilford Fin. Servs., LLC v. City of Brevard, 150 N.C. App. 1, 563 S.E.2d 27 (2002).
Conditions on Approval of Subdivision Plan. - Merely changing the location of a recreation area as a condition of approval of a subdivision plan does not amount to a taking so as to require compensation and is a valid exercise of a municipality's police
power under G.S. 160A-372. Messer v. Town of Chapel Hill, 59 N.C. App. 692, 297 S.E.2d 632 (1982), cert. denied and appeal dismissed, 307 N.C. 697,
301 S.E.2d 390 (1983).
Performance Bonds. - Successor developer could not compel a city to enforce a performance bond obtained by a prior developer to guarantee infrastructure improvements because no statute or ordinance authorized such relief or specified circumstances under
which the city had to enforce a performance guarantee, nor was such a duty implied. Brookline Residential, LLC v. City of Charlotte, 251 N.C. App. 537, 796 S.E.2d 369 (2017).
Denial of Subdivision Application. - Denial of a property owner's subdivision application was properly reversed because the property owner complied with the general and technical requirements of the town's subdivision ordinance since substantial evidence
did not support findings regarding overcrowding of schools, increased traffic, and incompatibility with the existing neighborhood; also, remand for clarification of subjective criteria in the ordinance was reasonable. Blue Ridge
Co., L.L.C. v. Town of Pineville, 188 N.C. App. 466, 655 S.E.2d 843, review denied, review dismissed, as moot, 362 N.C. 679, 669 S.E.2d 742 (2008).
Ordinance Invalid. - Trial court erred in granting a county summary in developers action seeking, among other things, an order declaring an Adequate Public Facilities Ordinance (APFO) null and void because the county used the APFO to impermissibly shift
a portion of the burden for funding school construction onto developers seeking approval for new developments, and it could not use the APFO to obtain indirectly the payment of what amounted to an impact fee given that it lacked
the authority to impose school impact fees directly; nowhere within G.S. 153A-330 through 153A-335 does not the General Assembly authorize a county to adopt a land use regulation ordinance pursuant to which a developer may be forced
to make a payment of money, donate land, or provide for school construction. Union Land Owners Ass'n v. County of Union, 201 N.C. App. 374, 689 S.E.2d 504 (2009).
§ 160D-802. Applicability.
-
For the purpose of this Article, subdivision regulations shall be applicable to all divisions of a tract or parcel of land into two or more lots, building sites, or other divisions when any one or more of those divisions is created for the purpose of
sale or building development, whether immediate or future, and shall include all divisions of land involving the dedication of a new street or a change in existing streets; but the following shall not be included within this definition
nor be subject to the regulations authorized by this Article:
- The combination or recombination of portions of previously subdivided and recorded lots where the total number of lots is not increased and the resultant lots are equal to or exceed the standards of the local government as shown in its subdivision regulations.
- The division of land into parcels greater than 10 acres where no street right-of-way dedication is involved.
- The public acquisition by purchase of strips of land for the widening or opening of streets or for public transportation system corridors.
- The division of a tract in single ownership whose entire area is no greater than 2 acres into not more than three lots, where no street right-of-way dedication is involved and where the resultant lots are equal to or exceed the standards of the local government, as shown in its subdivision regulations.
- The division of a tract into parcels in accordance with the terms of a probated will or in accordance with intestate succession under Chapter 29 of the General Statutes.
- A local government may provide for expedited review of specified classes of subdivisions.
-
A local government may require only a plat for recordation for the division of a tract or parcel of land in single ownership if all of the following criteria are met:
- The tract or parcel to be divided is not exempted under subdivision (2) of subsection (a) of this section.
- No part of the tract or parcel to be divided has been divided under this subsection in the 10 years prior to division.
- The entire area of the tract or parcel to be divided is greater than 5 acres.
- After division, no more than three lots result from the division.
-
After division, all resultant lots comply with all of the following:
- All lot dimension size requirements of the applicable land-use regulations, if any.
- The use of the lots is in conformity with the applicable zoning requirements, if any.
- A permanent means of ingress and egress is recorded for each lot.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
CASE NOTES
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 153A-335 and prior law.
Specific Exemption Controls. - The general health, safety, and welfare language of G.S. 153A-331 cannot invalidate the specific exemption clearly stated in subdivision (2) as the language of subdivision (2) itself is not ambiguous, and plaintiff's division
of land falls, without question under this exception. Three Guys Real Estate v. Harnett County, 345 N.C. 468, 480 S.E.2d 681 (1997).
Land Not Subject to Regulations. - Where plaintiff's plat showed a division of land into parcels greater than ten acres, and no street right-of-way dedication was involved, plaintiff's division of land was not subject to any regulations enacted pursuant
to G.S. 153A-330 to 153A-335. Three Guys Real Estate v. Harnett County, 345 N.C. 468, 480 S.E.2d 681 (1997).
Survey Requiring Certification. - A survey of a division of land that is described in subsection (2) falls under G.S. 47-30(f)(11)(d) and requires a certification of "no approval required" before the plat may be presented for recordation. Three Guys Real
Estate v. Harnett County, 345 N.C. 468, 480 S.E.2d 681 (1997).
§ 160D-803. Review process, filing, and recording of subdivision plats.
- Any subdivision regulation adopted pursuant to this Article shall contain provisions setting forth the procedures and standards to be followed in granting or denying approval of a subdivision plat prior to its registration.
-
A subdivision regulation shall provide that the following agencies be given an opportunity to make recommendations concerning an individual subdivision plat before the plat is approved:
- The district highway engineer as to proposed State streets, State highways, and related drainage systems.
- The county health director or local public utility, as appropriate, as to proposed water or sewerage systems.
- Any other agency or official designated by the governing board.
-
The subdivision regulation may provide that final decisions on preliminary plats and final plats are to be made by any of the following:
- The governing board.
- The governing board on recommendation of a designated body.
- A designated planning board, technical review committee of local government staff members, or other designated body or staff person.
- After the effective date that a subdivision regulation is adopted, no subdivision within a local government's planning and development regulation jurisdiction shall be filed or recorded until it shall have been submitted to and approved by the governing board or appropriate body, as specified in the subdivision regulation, and until this approval shall have been entered on the face of the plat in writing by an authorized representative of the local government. The review officer, pursuant to G.S. 47-30.2, shall not certify a subdivision plat that has not been approved in accordance with these provisions nor shall the clerk of superior court order or direct the recording of a plat if the recording would be in conflict with this section.
If the final decision on a subdivision plat is administrative, the decision may be assigned to a staff person or committee comprised entirely of staff persons, and notice of the decision shall be as provided by G.S. 160D-403(b). If the final decision on a subdivision plat is quasi-judicial, the decision shall be assigned to the governing board, the planning board, the board of adjustment, or other board appointed pursuant to this Chapter, and the procedures set forth in G.S. 160D-406 shall apply.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Legal Periodicals. - For article, "Transferring North Carolina Real Estate, Part I: How the Present System Functions," see 49 N.C.L. Rev. 413 (1971).
CASE NOTES
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 153A-332, former G.S. 160A-373, and prior law.
Hearing. - Defendant city did not act in an arbitrary and capricious manner in granting permits for residential development, where it met the minimum procedural requirements and was not required by this section to provide a hearing or notice to nearby
property owners. Nazziola v. Landcraft Props., 143 N.C. App. 564, 545 S.E.2d 801 (2001).
Failure to Follow Quasi-Judicial Process. - Where ordinance adopted by city required the city to use a quasi-judicial process when reviewing an application to develop property, council's decision denying a developer's application to build affordable housing
would be reversed, because the council did not use fair-trial standards in reaching its decision and did not state the facts upon which it based its decision with sufficient specificity that the court could review the decision
to determine if it was lawful. Guilford Fin. Servs., LLC v. City of Brevard, 150 N.C. App. 1, 563 S.E.2d 27 (2002).
County's Failure To Follow Subdivision Ordinance. - Local governments derive their authority to establish regulations regarding plat approval from the State of North Carolina pursuant to G.S. 153A-332, and the courts have the authority to nullify action
taken by the local entity when it has deviated from its own ordinance concerning the issuance of permits on subdivisions; under former New Hanover County, N.C. Subdivision Ordinance 32
§
3, only the plat applicant had the right to appeal the decision to approve a plat made by the county Technical Review Committee (TRC) to the county's Board of Commissioners (BOC), and the BOC had no appellate authority
to hear an appeal of the TRC's approval brought by a third party citizens' group. Sanco of Wilmington Serv. Corp. v. New Hanover County, 166 N.C. App. 471, 601 S.E.2d 889 (2004).
Opinions of Attorney General
Editor's Note. - The opinion below was rendered under former G.S. 160A-373, or prior law.
Subdivision ordinances and amendments thereto must be filed with Register of Deeds; recording these ordinances includes indexing and filing. See opinion of Attorney General to Mr. James Dick Proctor, 41 N.C.A.G. 752 (1972).
§ 160D-804. Contents and requirements of regulation.
- Purposes. - A subdivision regulation may provide for the orderly growth and development of the local government; for the coordination of transportation networks and utilities within proposed subdivisions with existing or planned streets and highways and with other public facilities; and for the distribution of population and traffic in a manner that will avoid congestion and overcrowding and will create conditions that substantially promote public health, safety, and general welfare.
- Plats. - The regulation may require a plat be prepared, approved, and recorded pursuant to the provisions of the regulation whenever any subdivision of land takes place. The regulation may include requirements that plats show sufficient data to determine readily and reproduce accurately on the ground the location, bearing, and length of every street and alley line, lot line, easement boundary line, and other property boundaries, including the radius and other data for curved property lines, to an appropriate accuracy and in conformance with good surveying practice.
-
Transportation and Utilities. -
- The regulation may provide for the dedication of rights-of-way or easements for street and utility purposes, including the dedication of rights-of-way pursuant to G.S. 136-66.10 or G.S. 136-66.11.
- A regulation adopted by a city may provide that in lieu of required street construction, a developer be required to provide funds for city use for the construction of roads to serve the occupants, residents, or invitees of the subdivision or development, and these funds may be used for roads which serve more than one subdivision or development within the area. All funds received by the city pursuant to this subdivision shall be used only for development of roads, including design, land acquisition, and construction. However, a city may undertake these activities in conjunction with the Department of Transportation under an agreement between the city and the Department of Transportation.
- A regulation adopted by a county may provide that in lieu of required street construction, a developer may provide funds to a county to be used for the development of roads to serve the occupants, residents, or invitees of the subdivision or development. All funds received by the county under this subdivision shall be transferred to a city to be used solely for the development of roads, including design, land acquisition, and construction. Any city receiving funds from a county under this subdivision is authorized to expend the funds outside its corporate limits for the purposes specified in the agreement between the municipality and the county.
- Any formula adopted by a local government to determine the amount of funds the developer is to pay in lieu of required street construction shall be based on the trips generated from the subdivision or development. The regulation may require a combination of partial payment of funds and partial dedication of constructed streets when the governing board determines that a combination is in the best interests of the citizens of the area to be served.
- Recreation Areas and Open Space. - The regulation may provide for the dedication or reservation of recreation areas serving residents of the immediate neighborhood within the subdivision or, alternatively, for payment of funds to be used to acquire or develop recreation areas serving residents of the development or subdivision or more than one subdivision or development within the immediate area. All funds received by cities pursuant to this subsection shall be used only for the acquisition or development of recreation, park, or open space sites. All funds received by counties pursuant to this subsection shall be used only for the acquisition of recreation, park, or open space sites. Any formula enacted to determine the amount of funds that are to be provided under this subsection shall be based on the value of the development or subdivision for property tax purposes. The regulation may allow a combination or partial payment of funds and partial dedication of land when the governing board determines that this combination is in the best interests of the citizens of the area to be served.
- Community Service Facilities. - The regulation may provide for the more orderly development of subdivisions by requiring the construction of community service facilities in accordance with local government plans, policies, and standards.
- School Sites. - The regulation may provide for the reservation of school sites in accordance with plans approved by the governing board. In order for this authorization to become effective, before approving such plans, the governing board and the board of education with jurisdiction over the area shall jointly determine the location and size of any school sites to be reserved. Whenever a subdivision is submitted for approval that includes part or all of a school site to be reserved under the plan, the governing board shall immediately notify the board of education and the board of education shall promptly decide whether it still wishes the site to be reserved. If the board of education does not wish to reserve the site, it shall so notify the governing board and no site shall be reserved. If the board of education does wish to reserve the site, the subdivision or site plan shall not be approved without such reservation. The board of education shall then have 18 months beginning on the date of final approval of the subdivision or site plan within which to acquire the site by purchase or by initiating condemnation proceedings. If the board of education has not purchased or begun proceedings to condemn the site within 18 months, the landowner may treat the land as freed of the reservation.
- Recodified as G.S. 160D-804.1 by Session Laws 2020-25, s. 20(b), effective June 19, 2020, and applicable to performance guarantees issued on or after that date.
-
Power Lines Exemption. - The regulation shall not require a developer or builder to bury power lines meeting all of the following criteria:
- The power lines existed above ground at the time of first approval of a plat or development plan by the local government, whether or not the power lines are subsequently relocated during construction of the subdivision or development plan.
- The power lines are located outside the boundaries of the parcel of land that contains the subdivision or the property covered by the development plan.
- Minimum Square Footage Exemption. - The regulation shall not set a minimum square footage of any structures subject to regulation under the North Carolina Residential Code for One- and Two-Family Dwellings.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 20(a), (b), (d), 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 20(c), made the recodification of subsection (g) of this section as G.S. 160D-804.1 applicable to performance guarantees issued on or after June 19, 2020.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 20(a), (d), effective June 19, 2020, redesignated subdivision (c)(2) as subdivisions (c)(2) and (c)(4); in subdivision (c)(2), substituted "A regulation adopted by a city" for "The regulation" in the first sentence, and substituted "subdivision" for "subsection" in the second sentence; added subdivision (c)(3); in subdivision (c)(4), added "by a local government" in the first sentence and deleted "of the city" following "governing board" in the last sentence; and substituted "cities" for "municipalities" in the second sentence of subsection (d); and added subsections (h) and (i).
Session Laws 2020-25, s. 20(b), effective June 19, 2020, recodified former subsection (g) as new G.S. 160D-804.1. For applicability, see editor's note.
Legal Periodicals. - For comment, "Sunbathers Versus Property Owners: Public Access to North Carolina Beaches," see 64 N.C.L. Rev. 159 (1985).
For note, " Batch v. Town of Chapel Hill, Takings Law and Exactions: Where Should North Carolina Stand?,” see 21 Campbell L. Rev. 49 (1998).
CASE NOTES
I. IN GENERAL.
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 153A-331, former G.S. 160A-372, and prior law.
II. DECISIONS UNDER FORMER G.S. 153A-331.
Editor's Note. - The following cases were decided under former G.S. 153A-331 and prior law.
Former Statute Did Not Authorize Laying Out, etc., of Highways, Streets or Alleys Within Meaning of Constitution. - The statutory provisions of former G.S. 153-266.3 and G.S. 153-266.4, as to what might and what must be included in a county subdivision
ordinance, did not constitute "authorizing the laying out, opening, altering, maintaining, or discontinuing of highways, streets, or alleys" within the meaning of N.C. Const., Art. II,
§
24. State v. McBane, 276 N.C. 60, 170 S.E.2d 913 (1969).
Effect of Specific Exemption. - The general health, safety, and welfare language of this section cannot invalidate the specific exemption clearly stated in G.S. 153A-335(2), as the language of subdivision (2) itself is not ambiguous, and plaintiff's division
of land falls, without question under this exception. Three Guys Real Estate v. Harnett County, 345 N.C. 468, 480 S.E.2d 681 (1997).
Immunity. - Trial court properly entered summary judgment to a county and town because they were engaged in a governmental function, were not subject to a statutory time limitation, and the town had standing to enforce certain subdivision bonds because
the power to issue subdivision control ordinances was geographically limited, nothing restricted the assignability of the bonds, the county was authorized to enact subdivision control ordinances, and the bonds did not specify
a completion date. Town of Black Mt. v. Lexon Ins. Co., 238 N.C. App. 180, 768 S.E.2d 302 (2014).
Ordinance Invalid. - Trial court erred in granting a county summary in developers action seeking, among other things, an order declaring an Adequate Public Facilities Ordinance (APFO) null and void because the county used the APFO to impermissibly shift
a portion of the burden for funding school construction onto developers seeking approval for new developments, and it could not use the APFO to obtain indirectly the payment of what amounted to an impact fee given that it lacked
the authority to impose school impact fees directly; nowhere within G.S. 153A-330 through 153A-335 does not the General Assembly authorize a county to adopt a land use regulation ordinance pursuant to which a developer may
be forced to make a payment of money, donate land, or provide for school construction. Union Land Owners Ass'n v. County of Union, 201 N.C. App. 374, 689 S.E.2d 504 (2009).
III. DECISIONS UNDER FORMER G.S. 160A-372.
Editor's Note. - The following cases were decided under former G.S. 160A-372 and prior law.
Legislative Intent. - The plain words of this section make it abundantly clear that the legislative intent is to somehow secure to the residents of the immediate neighborhood within the subdivision the benefit of particular recreation areas. River Birch
Assocs. v. City of Raleigh, 326 N.C. 100, 388 S.E.2d 538 (1990).
Construction. - Nothing in the statute authorizes a city or town, specifically or generally, to enact an adequate public facilities fee as a condition precedent for development approval; the language is clearly permissive and does not authorize municipalities
to charge fees as a condition precedent to subdivision approval. China Grove 152, LLC v. Town of China Grove, 242 N.C. App. 1, 773 S.E.2d 566 (2015).
Section Subject to Broad Interpretation. - The broad interpretation of Chapter 160A mandated by G.S. 160A-4 applies to this section. River
Birch Assocs. v. City of Raleigh, 326 N.C. 100, 388 S.E.2d 538 (1990).
This section permits city ordinances to provide for the conveyance of recreation areas in accordance with approved plats to home owners' associations, in order to set aside to the residents of a subdivision certain areas for recreation purposes. River Birch Assocs. v. City of Raleigh, 326 N.C. 100, 388 S.E.2d 538 (1990).
The requirement of a conveyance of common recreation areas to the home owners' association of a subdivision is an additional and supplementary power reasonably necessary or expedient to carry into effect the legislative intent to secure to the residents
of the subdivision the benefits of the recreation areas. River Birch Assocs. v. City of Raleigh, 326 N.C. 100, 388 S.E.2d 538 (1990).
Conditions on Approval of Subdivision Plan. - Merely changing the location of a recreation area as a condition of approval of a subdivision plan does not amount to a taking so as to require compensation and is a valid exercise of a municipality's police power under this section. Messer v. Town of Chapel Hill, 59 N.C. App. 692, 297 S.E.2d 632 (1982), cert. denied and appeal dismissed, 307 N.C. 697, 301 S.E.2d 390 (1983).
Assuming, a city's Adequate Public Facilities Ordinance (APFO) was a subdivision control ordinance within the scope of the statute the ordinance's provision for a public facilities fee had not been specifically authorized by the General Assembly; there
were no provisions in the statute authorizing the city to make its development approval contingent on securing funds to subsidize its law enforcement, fire protection, and parks, which was the stated purpose of the APFO. China
Grove 152, LLC v. Town of China Grove, 242 N.C. App. 1, 773 S.E.2d 566 (2015).
Performance Bonds. - Successor developer could not compel a city to enforce a performance bond obtained by a prior developer to guarantee infrastructure improvements because no statute or ordinance authorized such relief or specified circumstances under
which the city had to enforce a performance guarantee, nor was such a duty implied. Brookline Residential, LLC v. City of Charlotte, 251 N.C. App. 537, 796 S.E.2d 369
(2017).
Town had authority under its development ordinance as authorized by this section to require plaintiff to take future road plans into account in designing her subdivision and denial of plaintiff's permit for her failure to do so was neither ultra vires
nor unconstitutionally vague. Batch v. Town of Chapel Hill, 326 N.C. 1, 387 S.E.2d 655, cert. denied, 496 U.S. 931, 110 S. Ct. 2631, 110 L. Ed. 2d 651 (1990).
Town Did Not Have Authority to Pay for Services. - Because G.S. 160A-372 allowed municipalities to enact ordinances permitting performance guarantee for the successful "completion" of the installation of infrastructure, and not the payment for such installation, the town's ordinance did not allow for the use of the letter of credit funds for payment of contractor invoices for work performed. Huntley Constr. Co. v. Wells Fargo Bank, N.A. (In re Versant Props., LLC), - F. Supp. 2d - (W.D.N.C. Mar. 25, 2011).
Park and Open Space Zoning Ordinance Not a Taking. - Town's enactment of a zoning ordinance requiring that real estate developers reserve open space and install a mini-park in subdivisions was not an unconstitutional taking. Town of Pinebluff v. Marts,
195 N.C. App. 659, 673 S.E.2d 740 (2009).
Summary Judgment Found In Error. - The trial court's grant of summary judgment for defendant, implicitly finding as a matter of law that defendant could compel plaintiffs to construct access roads, was error where: defendant-town had no authority under
this section to require plaintiffs to pave, curb and gutter streets abutting their subdivision because these streets were not within plaintiffs' subdivision; where plaintiffs were not fee simple owners of the roads deeded as
a right-of-way to the State Highway Commission; and where there was no evidence that the defendants sought funds from the plaintiffs for road construction although they had that option. Buckland v. Town of Haw River,
141 N.C. App. 460, 541 S.E.2d 497 (2000).
§ 160D-804.1. Performance guarantees.
To assure compliance with G.S. 160D-804 and other development regulation requirements, a subdivision regulation may provide for performance guarantees to assure successful completion of required improvements.
For purposes of this section, all of the following apply with respect to performance guarantees:
-
Type. - The type of performance guarantee shall be at the election of the developer. The term "performance guarantee" means any of the following forms of guarantee:
- Surety bond issued by any company authorized to do business in this State.
- Letter of credit issued by any financial institution licensed to do business in this State.
- Other form of guarantee that provides equivalent security to a surety bond or letter of credit.
- Duration. - The duration of the performance guarantee shall initially be one year, unless the developer determines that the scope of work for the required improvements necessitates a longer duration. In the case of a bonded obligation, the completion date shall be set one year from the date the bond is issued, unless the developer determines that the scope of work for the required improvements necessitates a longer duration.
- Extension. - A developer shall demonstrate reasonable, good-faith progress toward completion of the required improvements that are secured by the performance guarantee or any extension. If the improvements are not completed to the specifications of the local government, and the current performance guarantee is likely to expire prior to completion of the required improvements, the performance guarantee shall be extended, or a new performance guarantee issued, for an additional period. An extension under this subdivision shall only be for a duration necessary to complete the required improvements. If a new performance guarantee is issued, the amount shall be determined by the procedure provided in subdivision (3) of this subsection and shall include the total cost of all incomplete improvements.
- Release. - The performance guarantee shall be returned or released, as appropriate, in a timely manner upon the acknowledgement by the local government that the improvements for which the performance guarantee is being required are complete. The local government shall return letters of credit or escrowed funds upon completion of the required improvements to its specifications or upon acceptance of the required improvements, if the required improvements are subject to local government acceptance. When required improvements that are secured by a bond are completed to the specifications of the local government, or are accepted by the local government, if subject to its acceptance, upon request by the developer, the local government shall timely provide written acknowledgement that the required improvements have been completed.
- Amount. - The amount of the performance guarantee shall not exceed one hundred twenty-five percent (125%) of the reasonably estimated cost of completion at the time the performance guarantee is issued. The local government may determine the amount of the performance guarantee or use a cost estimate determined by the developer. The reasonably estimated cost of completion shall include one hundred percent (100%) of the costs for labor and materials necessary for completion of the required improvements. Where applicable, the costs shall be based on unit pricing. The additional twenty-five percent (25%) allowed under this subdivision includes inflation and all costs of administration regardless of how such fees or charges are denominated. The amount of any extension of any performance guarantee shall be determined according to the procedures for determining the initial guarantee and shall not exceed one hundred twenty-five percent (125%) of the reasonably estimated cost of completion of the remaining incomplete improvements still outstanding at the time the extension is obtained.
- Timing. - A local government, at its discretion, may require the performance guarantee to be posted either at the time the plat is recorded or at a time subsequent to plat recordation.
- Coverage. - The performance guarantee shall only be used for completion of the required improvements and not for repairs or maintenance after completion.
-
Legal responsibilities. - No person shall have or may claim any rights under or to any performance guarantee provided pursuant to this subsection or in the proceeds of any such performance guarantee other than the following:
- The local government to whom the performance guarantee is provided.
- The developer at whose request or for whose benefit the performance guarantee is given.
- The person or entity issuing or providing the performance guarantee at the request of or for the benefit of the developer.
- Multiple guarantees. - The developer shall have the option to post one type of a performance guarantee as provided for in subdivision (1) of this section, in lieu of multiple bonds, letters of credit, or other equivalent security, for all development matters related to the same project requiring performance guarantees.
- Exclusion. - Performance guarantees associated with erosion control and stormwater control measures are not subject to the provisions of this section.
History
(2020-25, s. 20(b).)
Editor's Note. - This section is former subsection (g) of G.S. 160D-804, recodified and rewritten as this section by Session Laws 2020-25, s. 20(b), effective June 19, 2020.
Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 20(c), made this section applicable to performance guarantees issued on or after June 19, 2020.
Effect of Amendments. - Session Laws 2020-25, s. 20(b), effective June 19, 2020, recodified G.S. 160D-804(g) as this section and rewrote the section. For applicability, see editor's note.
§ 160D-805. Notice of new subdivision fees and fee increases; public comment period.
-
A local government shall provide notice to interested parties of the imposition of or increase in fees or charges applicable solely to the construction of development subject to this Article at least seven days prior to the first meeting where the imposition
of or increase in the fees or charges is on the agenda for consideration. The local government shall employ at least two of the following means of communication in order to provide the notice required by this section:
- Notice of the meeting in a prominent location on a Web site managed or maintained by the local government.
- Notice of the meeting in a prominent physical location, including, but not limited to, any government building, library, or courthouse within the planning and development regulation jurisdiction of the local government.
- Notice of the meeting by electronic mail or other reasonable means to a list of interested parties that is created by the local government for the purpose of notification as required by this section.
- During the consideration of the imposition of or increase in fees or charges as provided in subsection (a) of this section, the governing board of the local government shall permit a period of public comment.
- This section shall not apply if the imposition of or increase in fees or charges is contained in a budget filed in accordance with the requirements of G.S. 159-12.
If a city does not maintain its own Web site, it may employ the notice option provided by subdivision (1) of this subsection by submitting a request to a county or counties in which the city is located to post such notice in a prominent location on a Web site that is maintained by the county or counties. Any city that elects to provide such notice shall make its request to the county or counties at least 15 days prior to the date of the first meeting where the imposition of or increase in the fees or charges is on the agenda for consideration.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-806. Effect of plat approval on dedications.
The approval of a plat shall not be deemed to constitute the acceptance by the local government or public of the dedication of any street or other ground, public utility line, or other public facility shown on the plat. However, any governing board may by resolution accept any dedication made to the public of lands or facilities for streets, parks, public utility lines, or other public purposes, when the lands or facilities are located within its planning and development regulation jurisdiction. Acceptance of dedication of lands or facilities located within the planning and development regulation jurisdiction but outside the corporate limits of a city shall not place on the city any duty to open, operate, repair, or maintain any street, utility line, or other land or facility, and a city shall in no event be held to answer in any civil action or proceeding for failure to open, repair, or maintain any street located outside its corporate limits. Unless a city, county, or other public entity operating a water system shall have agreed to begin operation and maintenance of the water system or water system facilities within one year of the time of issuance of a certificate of occupancy for the first unit of housing in the subdivision, a city or county shall not, as part of its subdivision regulation applied to facilities or land outside the corporate limits of a city, require dedication of water systems or facilities as a condition for subdivision approval.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-807. Penalties for transferring lots in unapproved subdivisions.
- If a local government adopts a subdivision regulation, any person who, being the owner or agent of the owner of any land located within the planning and development regulation jurisdiction of that local government, thereafter subdivides the land in violation of the regulation or transfers or sells land by reference to, exhibition of, or any other use of a plat showing a subdivision of the land before the plat has been properly approved under the subdivision regulation and recorded in the office of the appropriate register of deeds, is guilty of a Class 1 misdemeanor. The description by metes and bounds in the instrument of transfer or other document used in the process of selling or transferring land does not exempt the transaction from this penalty. The local government may bring an action for injunction of any illegal subdivision, transfer, conveyance, or sale of land, and the court shall, upon appropriate findings, issue an injunction and order requiring the offending party to comply with the subdivision regulation. Building permits required pursuant to G.S. 160D-1110 may be denied for lots that have been illegally subdivided. In addition to other remedies, a local government may institute any appropriate action or proceedings to prevent the unlawful subdivision of land, to restrain, correct, or abate the violation, or to prevent any illegal act or conduct.
-
The provisions of this section do not prohibit any owner or its agent from entering into contracts to sell or lease by reference to an approved preliminary plat for which a final plat has not yet been properly approved under the subdivision regulation
or recorded with the register of deeds, provided the contract does all of the following:
- Incorporates as an attachment a copy of the preliminary plat referenced in the contract and obligates the owner to deliver to the buyer a copy of the recorded plat prior to closing and conveyance.
- Plainly and conspicuously notifies the prospective buyer or lessee that a final subdivision plat has not been approved or recorded at the time of the contract, that no governmental body will incur any obligation to the prospective buyer or lessee with respect to the approval of the final subdivision plat, that changes between the preliminary and final plats are possible, and that the contract or lease may be terminated without breach by the buyer or lessee if the final recorded plat differs in any material respect from the preliminary plat.
- Provides that if the approved and recorded final plat does not differ in any material respect from the plat referred to in the contract, the buyer or lessee may not be required by the seller or lessor to close any earlier than five days after the delivery of a copy of the final recorded plat.
- Provides that if the approved and recorded final plat differs in any material respect from the preliminary plat referred to in the contract, the buyer or lessee may not be required by the seller or lessor to close any earlier than 15 days after the delivery of the final recorded plat, during which 15-day period the buyer or lessee may terminate the contract without breach or any further obligation and may receive a refund of all earnest money or prepaid purchase price.
- The provisions of this section do not prohibit any owner or its agent from entering into contracts to sell or lease land by reference to an approved preliminary plat for which a final plat has not been properly approved under the subdivision regulation or recorded with the register of deeds where the buyer or lessee is any person who has contracted to acquire or lease the land for the purpose of engaging in the business of construction of residential, commercial, or industrial buildings on the land, or for the purpose of resale or lease of the land to persons engaged in that kind of business, provided that no conveyance of that land may occur and no contract to lease it may become effective until after the final plat has been properly approved under the subdivision regulation and recorded with the register of deeds.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 21, 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 21, effective June 19, 2020, substituted "G.S. 160D-1110" for "G.S. 160D-1108" in the last sentence of subsection (a); and made minor stylistic changes.
CASE NOTES
I. IN GENERAL.
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 153A-334, former G.S. 160A-375, and prior law.
II. DECISIONS UNDER FORMER G.S. 153A-334.
Editor's Note. - The following cases were decided under former G.S. 153A-334 and prior law.
Purpose of Former
§
153-266.6. - The sole purpose of former G.S. 153-266.6, similar to this section, was to compel compliance with ordinance provisions seeking to prevent any subdivision of land covered by its terms unless and until the
proposed subdivision map had been submitted to and approved by designated governmental agencies. State v. McBane, 276 N.C. 60, 170 S.E.2d 913 (1969).
What former G.S. 153-266.6 condemned as a misdemeanor was the description of land in any contract of sale, deed or other instrument of transfer by reference to a subdivision plat that had not been properly approved and recorded. State v. McBane,
276 N.C. 60, 170 S.E.2d 913 (1969).
Recording of Instrument Containing Improper Reference Immaterial. - The misdemeanor defined in former G.S. 153-266.6 related to a sale or transfer of land with reference to a plat showing a subdivision of land before such plat had been properly approved
under the ordinance and recorded in the office of the appropriate register of deeds. Whether the contract of sale, deed or other instrument of transfer was recorded was immaterial. State v. McBane,
276 N.C. 60, 170 S.E.2d 913 (1969).
Ordinance Regulating Subdivision of Land Prerequisite to Conviction. - As one of the prerequisites to conviction for sale of land by reference to an unapproved plat, it must be alleged and established that an ordinance regulating the subdivision of land
was adopted by the board of county commissioners in accordance with the authority conferred by statute. State v. McBane, 276 N.C. 60, 170 S.E.2d 913 (1969).
Person Subject to Prosecution. - The owner of land or his agent within the "platting jurisdiction" granted the county commissioners by statute was the only person subject to criminal prosecution for the sale of land by reference to an unapproved plat.
State v. McBane, 276 N.C. 60, 170 S.E.2d 913 (1969).
Warrant Must Allege That Defendant Was Land Owner or Owner's Agent Within Platting District. - A warrant is fatally defective if it fails to allege one of the essential elements of the criminal offense, namely, that defendant was the owner of land or
his agent within the platting jurisdiction granted to the county commissioners by the statute. State v. McBane, 276 N.C. 60, 170 S.E.2d 913 (1969).
General allegation that defendant's conduct constituted a misdemeanor in violation of the statute was insufficient. State v. McBane, 276 N.C. 60, 170 S.E.2d 913 (1969).
III. DECISIONS UNDER FORMER G.S. 160A-375.
Editor's Note. - The following cases were decided under former G.S. 160A-375 and prior law.
This section and G.S. 160A-389 Compared. - The specific penal and equitable relief set out in this section is relief intended to deter those who violate subdivision ordinances; G.S. 160A-389 permits broader, appropriate action and proceedings to prevent
or correct the violation of a zoning ordinance. Town of Nags Head v. Tillett, 314 N.C. 627, 336 S.E.2d 394 (1985).
Enforcement of Subdivision Ordinances. - Although the Town of Nags Head may deny a building permit to applicants whose property violates zoning ordinances, as authorized by G.S. 3.08 of the Nags Head Code of Ordinances and by G.S. 160A-389, its enforcement of subdivision ordinances is restricted to the penal and injunctive relief of this section and G.S. 17.10 of the Code of Ordinances. Town of Nags Head v. Tillett, 314 N.C. 627, 336 S.E.2d 394 (1985).
Town was entitled to seek an injunction against real estate developers, pursuant to G.S. 160A-375 and G.S. 160A-389, requiring the developers to comply with a zoning ordinance for the establishment of a minipark and an open space in a real estate subdivision
as the developers did not point to any inequities resulting from the injunction itself. Town of Pinebluff v. Marts, 195 N.C. App. 659, 673 S.E.2d 740 (2009).
§ 160D-808. Appeals of decisions on subdivision plats.
Appeals of subdivision decisions may be made pursuant to G.S. 160D-1403.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
ARTICLE 9. Regulation of Particular Uses and Areas.
Part 1. Particular Land Uses.
Sec.
Part 2. Environmental Regulation.
Part 3. Wireless Telecommunication Facilities.
Part 4. Historic Preservation.
Part 5. Community Appearance Commissions.
PART 1. PARTICULAR LAND USES.
§ 160D-901. Regulation of particular uses and areas.
A local government may regulate the uses and areas set forth in this Article in zoning regulations pursuant to Article 7 of this Chapter, a unified development ordinance, or in separate development regulations adopted under this Article. This shall not be deemed to expand, diminish, or alter the scope of authority granted pursuant to those Articles. In all instances, the substance of the local government regulation shall be consistent with the provisions in this Article. The provisions of this Chapter apply to any regulation adopted pursuant to this Article that substantially affects land use and development.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-902. Adult businesses.
- The General Assembly finds and determines that sexually oriented businesses can and do cause adverse secondary impacts on neighboring properties. Numerous studies relevant to North Carolina have found increases in crime rates and decreases in neighboring property values as a result of the location of sexually oriented businesses in inappropriate locations or from the operation of such businesses in an inappropriate manner. Reasonable local government regulation of sexually oriented businesses in order to prevent or ameliorate adverse secondary impacts is consistent with the federal constitutional protection afforded to nonobscene but sexually explicit speech.
- In addition to State laws on obscenity, indecent exposure, and adult establishments, local government regulation of the location and operation of sexually oriented businesses is necessary to prevent undue adverse secondary impacts that would otherwise result from these businesses.
-
A local government may regulate sexually oriented businesses through zoning regulations, licensing requirements, or other appropriate local ordinances. The local government may require a fee for the initial license and any annual renewal. Such local regulations
may include, but are not limited to, the following:
- Restrictions on location of sexually oriented businesses, such as limitation to specified zoning districts and minimum separation from sensitive land uses and other sexually oriented businesses.
- Regulations on operation of sexually oriented businesses, such as limits on hours of operation, open booth requirements, limitations on exterior advertising and noise, age of patrons and employees, required separation of patrons and performers, clothing restrictions for masseuses, and clothing restrictions for servers of alcoholic beverages.
- Clothing restrictions for entertainers.
- Registration and disclosure requirements for owners and employees with a criminal record other than minor traffic offenses and restrictions on ownership by or employment of a person with a criminal record that includes offenses reasonably related to the legal operation of sexually oriented businesses.
- In order to preserve the status quo while appropriate studies are conducted and the scope of potential regulations is deliberated, local governments may enact moratoria of reasonable duration on either the opening of any new businesses authorized to be regulated under this section or the expansion of any such existing business. Businesses existing at the time of the effective date of regulations adopted under this section may be required to come into compliance with newly adopted regulations within an appropriate and reasonable period of time.
- Local governments may enter into cooperative agreements regarding coordinated regulation of sexually oriented businesses, including provision of adequate alternative sites for the location of constitutionally protected speech within an interrelated geographic area.
- For the purpose of this section, "sexually oriented business" means any business or enterprise that has as one of its principal business purposes or as a significant portion of its business an emphasis on matter and conduct depicting, describing, or related to anatomical areas and sexual activities specified in G.S. 14-202.10. Local governments may adopt detailed definitions of these and similar businesses in order to precisely define the scope of any local regulations.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-903. Agricultural uses.
-
Bona Fide Farming Exempt From County Zoning. - County zoning regulations may not affect property used for bona fide farm purposes; provided, however, that this section does not limit zoning regulation with respect to the use of farm property for nonfarm
purposes. Except as provided in G.S. 106-743.4 for farms that are subject to a conservation agreement under G.S. 106-743.2, bona fide farm purposes include the production and activities relating or incidental to the production
of crops, grains, fruits, vegetables, ornamental and flowering plants, dairy, livestock, poultry, and all other forms of agriculture, as defined in G.S. 106-581.1. Activities incident to the farm include existing or new residences
constructed to the applicable residential building code situated on the farm occupied by the owner, lessee, or operator of the farm and other buildings or structures sheltering or supporting the farm use and operation. For purposes
of this section, "when performed on the farm" in G.S. 106-581.1(6) includes the farm within the jurisdiction of the county and any other farm owned or leased to or from others by the bona fide farm operator, no matter where located.
For purposes of this section, the production of a nonfarm product that the Department of Agriculture and Consumer Services recognizes as a "Goodness Grows in North Carolina" product that is produced on a farm subject to a conservation
agreement under G.S. 106-743.2 is a bona fide farm purpose. For purposes of determining whether a property is being used for bona fide farm purposes, any of the following is sufficient evidence that the property is being used for
bona fide farm purposes:
- A farm sales tax exemption certificate issued by the Department of Revenue.
- A copy of the property tax listing showing that the property is eligible for participation in the present-use value program pursuant to G.S. 105-277.3.
- A copy of the farm owner's or operator's Schedule F from the owner's or operator's most recent federal income tax return.
- A forest management plan.
- County Zoning of Residential Uses on Large Lots in Agricultural Districts. - A county zoning regulation shall not prohibit single-family detached residential uses constructed in accordance with the North Carolina State Building Code on lots greater than 10 acres in size and in zoning districts where more than fifty percent (50%) of the land is in use for agricultural or silvicultural purposes, except that this restriction does not apply to commercial or industrial districts where a broad variety of commercial or industrial uses are permissible. A zoning regulation shall not require that a lot greater than 10 acres in size have frontage on a public road or county-approved private road or be served by public water or sewer lines in order to be developed for single-family residential purposes.
- Agricultural Areas in Municipal Extraterritorial Jurisdiction. - Property that is located in a city's extraterritorial planning and development regulation jurisdiction and that is used for bona fide farm purposes is exempt from the city's zoning regulation to the same extent bona fide farming activities are exempt from county zoning pursuant to this section. As used in this subsection, "property" means a single tract of property or an identifiable portion of a single tract. Property that ceases to be used for bona fide farm purposes becomes subject to exercise of the city's extraterritorial planning and development regulation jurisdiction under this Chapter. For purposes of complying with State or federal law, property that is exempt from municipal zoning pursuant to this subsection is subject to the county's floodplain regulation or all floodplain regulation provisions of the county's unified development ordinance.
- Accessory Farm Buildings. - A city may provide in its zoning regulation that an accessory building of a "bona fide farm" has the same exemption from the building code as it would have under county zoning.
- City Regulations in Voluntary Agricultural Districts. - A city may amend the development regulations applicable within its planning and development regulation jurisdiction to provide flexibility to farming operations that are located within a city or county, voluntary agricultural district, or enhanced voluntary agricultural district adopted under Article 61 of Chapter 106 of the General Statutes. Amendments to applicable development regulations may include provisions regarding on-farm sales, pick-your-own operations, road signs, agritourism, and other activities incident to farming.
A building or structure that is used for agritourism is a bona fide farm purpose if the building or structure is located on a property that (i) is owned by a person who holds a qualifying farm sales tax exemption certificate from the Department of Revenue pursuant to G.S. 105-164.13E(a) or (ii) is enrolled in the present-use value program pursuant to G.S. 105-277.3. Failure to maintain the requirements of this subsection for a period of three years after the date the building or structure was originally classified as a bona fide farm purpose pursuant to this subsection subjects the building or structure to applicable zoning and development regulation ordinances adopted by a county pursuant to G.S. 160D-702 in effect on the date the property no longer meets the requirements of this subsection. For purposes of this section, "agritourism" means any activity carried out on a farm or ranch that allows members of the general public, for recreational, entertainment, or educational purposes, to view or enjoy rural activities, including farming, ranching, historic, cultural, harvest-your-own activities, hunting, fishing, equestrian activities, or natural activities and attractions. A building or structure used for agritourism includes any building or structure used for public or private events, including, but not limited to, weddings, receptions, meetings, demonstrations of farm activities, meals, and other events that are taking place on the farm because of its farm or rural setting.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 22, 51(a), (b), (d); 2020-74, s. 20.)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 22, effective June 19, 2020, in subsection (c), substituted "city's" for "municipality's" three times, and substituted "municipal zoning" for "the exercise of municipal extraterritorial planning and development regulation jurisdiction" in the last sentence; substituted "A city" for "A municipality" at the beginning of subsection (d); and made minor stylistic changes.
Session Laws 2020-74, s. 20, effective July 1, 2020, in the last paragraph of subsection (a), substituted "G.S. 160D-702" for "subsection (a) of this section" in the second sentence, and added "hunting, fishing, equestrian activities" in the second sentence.
§ 160D-904. Airport zoning.
Any local government may enact and enforce airport zoning regulations pursuant to this Chapter or as authorized by Article 4 of Chapter 63 of the General
Statutes. Airport zoning regulations for real property within 6 miles of any cargo airport complex site subject to regulation by the North Carolina Global TransPark Authority are governed by G.S. 63A-18.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-905. Amateur radio antennas.
A local government ordinance based on health, safety, or aesthetic considerations that regulates the placement, screening, or height of the antennas or support structures of amateur radio operators must reasonably accommodate amateur radio communications and must represent the minimum practicable regulation necessary to accomplish the purpose of the local government. A local government may not restrict antennas or antenna support structures of amateur radio operators to heights of 90 feet or lower unless the restriction is necessary to achieve a clearly defined health, safety, or aesthetic objective of the local government.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-906. Bee hives.
Restrictions on bee hives in local development regulations shall be consistent with the limitations of G.S. 106-645.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-907. Family care homes.
- The General Assembly finds it is the public policy of this State to provide persons with disabilities with the opportunity to live in a normal residential environment.
-
As used in this section, the following definitions apply:
- Family care home. - A home with support and supervisory personnel that provides room and board, personal care, and habilitation services in a family environment for not more than six resident persons with disabilities.
- Person with disabilities. - A person with a temporary or permanent physical, emotional, or mental disability, including, but not limited to, an intellectual or other developmental disability, cerebral palsy, epilepsy, autism, hearing and sight impairments, emotional disturbances, and orthopedic impairments but not including persons with a mental illness who are dangerous to others as defined in G.S. 122C-3(11)b.
- A family care home is deemed a residential use of property for zoning purposes and is a permissible use in all residential districts. No local government shall require that a family care home, its owner, or operator obtain, because of the use, a special use permit or variance from any such zoning regulation; however, a local government may prohibit a family care home from being located within a one-half mile radius of an existing family care home.
- A family care home is deemed a residential use of property for the purposes of determining charges or assessments imposed by local governments or businesses for water, sewer, power, telephone service, cable television, garbage and trash collection, repairs or improvements to roads, streets, and sidewalks, and other services, utilities, and improvements.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d); 2021-88, s. 9(k).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2021-88, s. 9(k), effective July 22, 2021, rewrote subdivision (b)(2), and subsection (c); and substituted "is deemed” for "shall be deemed” in subsection (d).
§ 160D-908. Fence wraps.
Fence wraps displaying signage when affixed to perimeter fencing at a construction site are exempt from zoning regulation pertaining to signage under this Article until the certificate of occupancy is issued for the final portion of any construction at that site or 24 months from the time the fence wrap was installed, whichever is shorter. If construction is not completed at the end of 24 months from the time the fence wrap was installed, the local government may regulate the signage but shall continue to allow fence wrapping materials to be affixed to the perimeter fencing. No fence wrap affixed pursuant to this section may display any advertising other than advertising sponsored by a person directly involved in the construction project and for which monetary compensation for the advertisement is not paid or required.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-909. Fraternities and sororities.
A zoning regulation or unified development ordinance may not differentiate in terms of the regulations applicable to fraternities or sororities between those fraternities or sororities that are approved or recognized by a college or university and those that are not.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-910. Manufactured homes.
- The General Assembly finds that manufactured housing offers affordable housing opportunities for low- and moderate-income residents of this State who could not otherwise afford to own their own home. The General Assembly further finds that some local governments have adopted zoning regulations that severely restrict the placement of manufactured homes. It is the intent of the General Assembly in enacting this section that local governments reexamine their land-use practices to assure compliance with applicable statutes and case law and consider allocating more residential land area for manufactured homes based upon local housing needs.
- For purposes of this section, the term "manufactured home" is defined as provided in G.S. 143-145(7).
- A local government may not adopt or enforce zoning regulations or other provisions that have the effect of excluding manufactured homes from the entire zoning jurisdiction or that exclude manufactured homes based on the age of the home.
- A local government may adopt and enforce appearance and dimensional criteria for manufactured homes. Such criteria shall be designed to protect property values, to preserve the character and integrity of the community or individual neighborhoods within the community, and to promote the health, safety, and welfare of area residents. The criteria shall be adopted by ordinance.
- In accordance with the local government's comprehensive plan and based on local housing needs, a local government may designate a manufactured home overlay district within a residential district. Such overlay district may not consist of an individual lot or scattered lots but shall consist of a defined area within which additional requirements or standards are placed upon manufactured homes.
- Nothing in this section shall be construed to preempt or supersede valid restrictive covenants running with the land. The terms "mobile home" and "trailer" in any valid restrictive covenants running with the land shall include the term "manufactured home" as defined in this section.
- A local government may require by ordinance that manufactured homes be installed in accordance with the Set-Up and Installation Standards adopted by the Commissioner of Insurance; provided, however, a local government shall not require a masonry curtain wall or masonry skirting for manufactured homes located on land leased to the homeowner.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d); 2021-117, s. 6(a).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2021-117, s. 6(a), effective October 1, 2021, added subsection (g).
CASE NOTES
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 153A-341.1, former G.S. 160A-383.1, and prior law.
Federal Preemption Not Found. - A county ordinance requiring mobile homes to have siding and shingles of a type similar to standard residential construction was enacted to remove from the range of safe and satisfactorily performing materials only ones based on undesirable appearance, and left the regulation of safety and performance of roofing and siding materials to Congress and the Department of Housing and Urban Development, and thus was not preempted. CMH Mfg., Inc. v. Catawba County, 994 F. Supp. 697 (W.D.N.C. 1998).
Standing. - It was error for the trial court to dismiss plaintiff's claims based on mootness and lack of standing where property ownership was irrelevant and where the failure to rezone directly and adversely affected the plaintiff's pecuniary interest.
Northfield Dev. Co. v. City of Burlington, 136 N.C. App. 272, 523 S.E.2d 743 (2000).
This section does not require a city to adopt Manufactured Home Overlay District. Northfield Dev. Co. v. City of Burlington, 136 N.C. App. 272, 523 S.E.2d 743 (2000).
Manufactured Homes Not Excluded from Entire Jurisdiction. - A city's refusal to rezone an area at plaintiff's request did not constitute a decision to preclude the use of manufactured homes in city's "entire zoning jurisdiction" in violation of subsection
(c) of this section. Northfield Dev. Co. v. City of Burlington, 136 N.C. App. 272, 523 S.E.2d 743 (2000).
County Ordinance Requiring Certain Siding and Shingles. - A county ordinance requiring mobile homes to have siding and shingles of a type similar to standard residential construction was enacted to remove from the range of safe and satisfactorily performing materials only ones based on undesirable appearance, and left the regulation of safety and performance of roofing and siding materials to Congress and the Department of Housing and Urban Development, and thus was not preempted. CMH Mfg., Inc. v. Catawba County, 994 F. Supp. 697 (W.D.N.C. 1998).
County Exceeded Statutory Authority With Regard to Zoning Regulations for Manufactured Homes. - County exceeded the power the general assembly conferred upon it with regard to zoning regulations for manufactured homes because an ordinance, as amended,
did not employ appearance and dimensional criteria as intended in G.S. 153A-341.1 and G.S. 160A-383.1 when the intent of the ordinance was to increase the tax base by the elimination of housing that rapidly depreciated in value,
and that wealth based criterion was neither an appearance nor dimensional criteria; G.S. 160A-383.1, as made applicable to counties by G.S. 153A-341.1, limits a county's power to enact zoning regulations for manufactured homes,
and a county may not use its broad police powers as a guise to enact zoning regulations for manufactured homes inconsistent with G.S. 160A-383.1. Five C'S, Inc. v. County of Pasquotank, 195 N.C. App. 410, 672 S.E.2d 737 (2009).
§ 160D-911. Modular homes.
Modular homes, as defined in G.S. 105-164.3(143), shall comply with the design and construction standards set forth in G.S. 143-139.1.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-912. Outdoor advertising.
- As used in this section, the term "off-premises outdoor advertising" includes off-premises outdoor advertising visible from the main-traveled way of any road.
- A local government may require the removal of an off-premises outdoor advertising sign that is nonconforming under a local ordinance and may regulate the use of off-premises outdoor advertising within its planning and development regulation jurisdiction in accordance with the applicable provisions of this Chapter and subject to G.S. 136-131.1 and G.S. 136-131.2.
- A local government shall give written notice of its intent to require removal of off-premises outdoor advertising by sending a letter by certified mail to the last known address of the owner of the outdoor advertising and the owner of the property on which the outdoor advertising is located.
-
No local government may enact or amend an ordinance of general applicability to require the removal of any nonconforming, lawfully erected off-premises outdoor advertising sign without the payment of monetary compensation to the owners of the off-premises
outdoor advertising, except as provided below. The payment of monetary compensation is not required if:
- The local government and the owner of the nonconforming off-premises outdoor advertising enter into a relocation agreement pursuant to subsection (g) of this section.
- The local government and the owner of the nonconforming off-premises outdoor advertising enter into an agreement pursuant to subsection (k) of this section.
- The off-premises outdoor advertising is determined to be a public nuisance or detrimental to the health or safety of the populace.
- The removal is required for opening, widening, extending, or improving streets or sidewalks, or for establishing, extending, enlarging, or improving any of the public enterprises listed in G.S. 160A-311, and the local government allows the off-premises outdoor advertising to be relocated to a comparable location.
- The off-premises outdoor advertising is subject to removal pursuant to statutes, ordinances, or regulations generally applicable to the demolition or removal of damaged structures.
-
Monetary compensation is the fair market value of the off-premises outdoor advertising in place immediately prior to its removal and without consideration of the effect of the ordinance or any diminution in value caused by the ordinance requiring its
removal. Monetary compensation shall be determined based on the following:
- The factors listed in G.S. 105-317.1(a).
- The listed property tax value of the property and any documents regarding value submitted to the taxing authority.
- If the parties are unable to reach an agreement under subsection (e) of this section on monetary compensation to be paid by the local government to the owner of the nonconforming off-premises outdoor advertising sign for its removal and the local government elects to proceed with the removal of the sign, the local government may bring an action in superior court for a determination of the monetary compensation to be paid. In determining monetary compensation, the court shall consider the factors set forth in subsection (e) of this section. Upon payment of monetary compensation for the sign, the local government shall own the sign.
-
In lieu of paying monetary compensation, a local government may enter into an agreement with the owner of a nonconforming off-premises outdoor advertising sign to relocate and reconstruct the sign. The agreement shall include the following:
-
Provision for relocation of the sign to a site reasonably comparable to or better than the existing location. In determining whether a location is comparable or better, the following factors shall be taken into consideration:
- The size and format of the sign.
- The characteristics of the proposed relocation site, including visibility, traffic count, area demographics, zoning, and any uncompensated differential in the sign owner's cost to lease the replacement site.
- The timing of the relocation.
-
Provision for payment by the local government of the reasonable costs of relocating and reconstructing the sign, including the following:
- The actual cost of removing the sign.
- The actual cost of any necessary repairs to the real property for damages caused in the removal of the sign.
- The actual cost of installing the sign at the new location.
- An amount of money equivalent to the income received from the lease of the sign for a period of up to 30 days if income is lost during the relocation of the sign.
-
Provision for relocation of the sign to a site reasonably comparable to or better than the existing location. In determining whether a location is comparable or better, the following factors shall be taken into consideration:
- For the purposes of relocating and reconstructing a nonconforming off-premises outdoor advertising sign pursuant to subsection (g) of this section, a local government, consistent with the welfare and safety of the community as a whole, may adopt a resolution or adopt or modify its ordinances to provide for the issuance of a permit or other approval, including conditions as appropriate, or to provide for dimensional, spacing, setback, or use variances as it deems appropriate.
- If a local government has offered to enter into an agreement to relocate a nonconforming off-premises outdoor advertising sign pursuant to subsection (g) of this section and within 120 days after the initial notice by the local government the parties have not been able to agree that the site or sites offered by the local government for relocation of the sign are reasonably comparable to or better than the existing site, the parties shall enter into binding arbitration to resolve their disagreements. Unless a different method of arbitration is agreed upon by the parties, the arbitration shall be conducted by a panel of three arbitrators. Each party shall select one arbitrator, and the two arbitrators chosen by the parties shall select the third member of the panel. The American Arbitration Association rules shall apply to the arbitration unless the parties agree otherwise.
- If the arbitration results in a determination that the site or sites offered by the local government for relocation of the nonconforming sign are not comparable to or better than the existing site, and the local government elects to proceed with the removal of the sign, the parties shall determine the monetary compensation under subsection (e) of this section to be paid to the owner of the sign. If the parties are unable to reach an agreement regarding monetary compensation within 30 days of the receipt of the arbitrators' determination and the local government elects to proceed with the removal of the sign, then the local government may bring an action in superior court for a determination of the monetary compensation to be paid by the local government to the owner for the removal of the sign. In determining monetary compensation, the court shall consider the factors set forth in subsection (e) of this section. Upon payment of monetary compensation for the sign, the local government shall own the sign.
- Notwithstanding the provisions of this section, a local government and an off-premises outdoor advertising sign owner may enter into a voluntary agreement allowing for the removal of the sign after a set period of time in lieu of monetary compensation. A local government may adopt an ordinance or resolution providing for a relocation, reconstruction, or removal agreement.
- A local government has up to three years from the effective date of an ordinance enacted under this section to pay monetary compensation to the owner of the off-premises outdoor advertising provided the affected property remains in place until the compensation is paid.
- This section does not apply to any ordinance in effect on July 1, 2004. A local government may amend an ordinance in effect on July 1, 2004, to extend application of the ordinance to off-premises outdoor advertising located in territory acquired by annexation or located in the extraterritorial jurisdiction of the city. A local government may repeal or amend an ordinance in effect on July 1, 2004, so long as the amendment to the existing ordinance does not reduce the period of amortization in effect on June 19, 2020.
- The provisions of this section shall not be used to interpret, construe, alter, or otherwise modify the exercise of the power of eminent domain by an entity pursuant to Chapter 40A or Chapter 136 of the General Statutes.
- Nothing in this section shall limit a local government's authority to use amortization as a means of phasing out nonconforming uses other than off-premises outdoor advertising.
This subsection shall be construed subject to and without any reduction in the rights afforded to owners of outdoor advertising signs along interstate and federal-aid primary highways in this State as provided in Article 13 of Chapter 136 of the General Statutes.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a)-(d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Session Laws 2020-25, s. 51(c), provides: "The Revisor of Statutes is authorized to substitute the effective date of this act for "January 1, 2021" throughout Chapter 160D of the General Statutes." Pursuant to this authority, the Revisor of Statutes substituted "June 19, 2020" for "January 1, 2021" in this section.
§ 160D-913. Public buildings.
All local government zoning regulations are applicable to the erection, construction, and use of buildings by the State of North Carolina and its political subdivisions.
Notwithstanding the provisions of any general or local law or ordinance, except as provided in Part 4 of Article 9 of this Chapter, no land owned by the State of North Carolina may be included within an overlay district or a conditional zoning district without approval of the Council of State or its delegate.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-914. Solar collectors.
- Except as provided in subsection (c) of this section, no local government development regulation shall prohibit, or have the effect of prohibiting, the installation of a solar collector that gathers solar radiation as a substitute for traditional energy for water heating, active space heating and cooling, passive heating, or generating electricity for a residential property, and no person shall be denied permission by a local government to install a solar collector that gathers solar radiation as a substitute for traditional energy for water heating, active space heating and cooling, passive heating, or generating electricity for a residential property. As used in this section, the term "residential property" means property where the predominant use is for residential purposes.
- This section does not prohibit a development regulation regulating the location or screening of solar collectors as described in subsection (a) of this section, provided the regulation does not have the effect of preventing the reasonable use of a solar collector for a residential property.
-
This section does not prohibit a development regulation that would prohibit the location of solar collectors as described in subsection (a) of this section that are visible by a person on the ground and that are any of the following:
- On the facade of a structure that faces areas open to common or public access.
- On a roof surface that slopes downward toward the same areas open to common or public access that the facade of the structure faces.
- Within the area set off by a line running across the facade of the structure extending to the property boundaries on either side of the facade, and those areas of common or public access faced by the structure.
- In any civil action arising under this section, the court may award costs and reasonable attorneys' fees to the prevailing party.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-915. Temporary health care structures.
-
The following definitions apply in this section:
- Activities of daily living. - Bathing, dressing, personal hygiene, ambulation or locomotion, transferring, toileting, and eating.
- Caregiver. - An individual 18 years of age or older who (i) provides care for a mentally or physically impaired person and (ii) is a first- or second-degree relative of the mentally or physically impaired person for whom the individual is caring.
- First- or second-degree relative. - A spouse, lineal ascendant, lineal descendant, sibling, uncle, aunt, nephew, or niece and includes half, step, and in-law relationships.
- Mentally or physically impaired person. - A person who is a resident of this State and who requires assistance with two or more activities of daily living as certified in writing by a physician licensed to practice in this State.
- Temporary family health care structure. - A transportable residential structure providing an environment facilitating a caregiver's provision of care for a mentally or physically impaired person that (i) is primarily assembled at a location other than its site of installation, (ii) is limited to one occupant who shall be the mentally or physically impaired person, (iii) has no more than 300 gross square feet, and (iv) complies with applicable provisions of the State Building Code and G.S. 143-139.1(b). Placing the temporary family health care structure on a permanent foundation shall not be required or permitted.
- A local government shall consider a temporary family health care structure used by a caregiver in providing care for a mentally or physically impaired person on property owned or occupied by the caregiver as the caregiver's residence as a permitted accessory use in any single-family residential zoning district on lots zoned for single-family detached dwellings.
- A local government shall consider a temporary family health care structure used by an individual who is the named legal guardian of the mentally or physically impaired person a permitted accessory use in any single-family residential zoning district on lots zoned for single-family detached dwellings in accordance with this section if the temporary family health care structure is placed on the property of the residence of the individual and is used to provide care for the mentally or physically impaired person.
- Only one temporary family health care structure shall be allowed on a lot or parcel of land. The temporary family health care structures under subsections (b) and (c) of this section shall not require a special use permit or be subjected to any other local zoning requirements beyond those imposed upon other authorized accessory use structures, except otherwise provided in this section. Such temporary family health care structures shall comply with all setback requirements that apply to the primary structure and with any maximum floor area ratio limitations that may apply to the primary structure.
- Any person proposing to install a temporary family health care structure shall first obtain a permit from the local government. The local government may charge a fee of up to one hundred dollars ($100.00) for the initial permit and an annual renewal fee of up to fifty dollars ($50.00). The local government may not withhold a permit if the applicant provides sufficient proof of compliance with this section. The local government may require that the applicant provide evidence of compliance with this section on an annual basis as long as the temporary family health care structure remains on the property. The evidence may involve the inspection by the local government of the temporary family health care structure at reasonable times convenient to the caregiver, not limited to any annual compliance confirmation and annual renewal of the doctor's certification.
- Notwithstanding subsection (i) of this section, any temporary family health care structure installed under this section may be required to connect to any water, sewer, and electric utilities serving the property and shall comply with all applicable State law, local ordinances, and other requirements, including Article 11 of this Chapter, as if the temporary family health care structure were permanent real property.
- No signage advertising or otherwise promoting the existence of the temporary health care structure shall be permitted either on the exterior of the temporary family health care structure or elsewhere on the property.
- Any temporary family health care structure installed pursuant to this section shall be removed within 60 days in which the mentally or physically impaired person is no longer receiving or is no longer in need of the assistance provided for in this section. If the temporary family health care structure is needed for another mentally or physically impaired person, the temporary family health care structure may continue to be used or may be reinstated on the property within 60 days of its removal, as applicable.
- The local government may revoke the permit granted pursuant to subsection (e) of this section if the permit holder violates any provision of this section or G.S. 160A-202. The local government may seek injunctive relief or other appropriate actions or proceedings to ensure compliance with this section or G.S. 160A-202.
- Temporary family health care structures shall be treated as tangible personal property for purposes of taxation.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-916. Streets and transportation.
- Street Setbacks and Curb Cut Regulations. - Local governments may establish street setback and driveway connection regulations pursuant to G.S. 160A-306 and G.S. 160A-307 or as a part of development regulations adopted pursuant to this Chapter. If adopted pursuant to this Chapter, the regulations are also subject to the provisions of G.S. 160A-306 and G.S. 160A-307.
- Repealed by Session Laws 2020-25, s. 23, effective June 19, 2020.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 23, 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 23, effective June 19, 2020, deleted subsection (b), which read: "Transportation Corridor Official Maps. - Any local government may establish official transportation corridor maps and may enact and enforce
ordinances pursuant to Article 2E of Chapter 136 of the General Statutes."
§§ 160D-917 through 160D-919: Reserved for future codification purposes.
History
(2019-111, s. 2.4.)
PART 2. ENVIRONMENTAL REGULATION.
§ 160D-920. Local environmental regulations.
- Local governments are authorized to exercise the powers conferred by Article 8 of Chapter 160A of the General Statutes and Article 6 of Chapter 153A of the General Statutes to adopt and enforce local ordinances pursuant to this Part to the extent necessary to comply with State and federal law, rules, and regulations or permits consistent with the interpretations and directions of the State or federal agency issuing the permit.
- Local environmental regulations adopted pursuant to this Part are not subject to the variance provisions of G.S. 160D-705 unless that is specifically authorized by the local ordinance.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-921. Forestry activities.
-
The following definitions apply to this section:
- Development. - Any activity, including timber harvesting, that is associated with the conversion of forestland to nonforest use.
- Forest management plan. - A document that defines a landowner's forest management objectives and describes specific measures to be taken to achieve those objectives. A forest management plan shall include silvicultural practices that both ensure optimal forest productivity and environmental protection of land by either commercially growing timber through the establishment of forest stands or by ensuring the proper regeneration of forest stands to commercial levels of production after the harvest of timber.
- Forestland. - Land that is devoted to growing trees for the production of timber, wood, and other forest products.
- Forestry. - The professional practice embracing the science, business, and art of creating, conserving, and managing forests and forestland for the sustained use and enjoyment of their resources, materials, or other forest products.
- Forestry activity. - Any activity associated with the growing, managing, harvesting, and related transportation, reforestation, or protection of trees and timber, provided that such activities comply with existing State rules and regulations pertaining to forestry.
-
A local government shall not adopt or enforce any ordinance, rule, regulation, or resolution that regulates either of the following:
- Forestry activity on forestland that is taxed on the basis of its present-use value as forestland under Article 12 of Chapter 105 of the General Statutes.
- Forestry activity that is conducted in accordance with a forest management plan that is prepared or approved by a forester registered in accordance with Chapter 89B of the General Statutes.
-
This section shall not be construed to limit, expand, or otherwise alter the authority of a local government to:
-
Regulate activity associated with development. A local government may deny a building permit or refuse to approve a site or subdivision plan for either a period of up to:
- Three years after the completion of a timber harvest if the harvest results in the removal of all or substantially all of the trees that were protected under local government regulations governing development from the tract of land for which the permit or approval is sought.
- Five years after the completion of a timber harvest if the harvest results in the removal of all or substantially all of the trees that were protected under local government regulations governing development from the tract of land for which the permit or approval is sought and the harvest was a willful violation of the local government regulations.
- Regulate trees pursuant to any local act of the General Assembly.
- Adopt ordinances that are necessary to comply with any federal or State law, regulation, or rule.
- Exercise its planning or zoning authority under this Chapter.
- Regulate and protect streets.
-
Regulate activity associated with development. A local government may deny a building permit or refuse to approve a site or subdivision plan for either a period of up to:
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-922. Erosion and sedimentation control.
Any local government may enact and enforce erosion and sedimentation control regulations as authorized by Article 4 of Chapter 113A of the General
Statutes and shall comply with all applicable provisions of that Article and, to the extent not inconsistent with that Article, with this Chapter. Fees charged by a local government under its erosion and sedimentation control program
shall not exceed that authorized in G.S. 113A-60(a).
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d); 2021-121, s. 3(b).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2021-121, s. 3(b), effective August 30, 2021, added the second sentence.
§ 160D-923. Floodplain regulations.
Any local government may enact and enforce floodplain regulation or flood damage prevention regulations as authorized by Part 6 of Article 21 of Chapter 143 of the General Statutes and shall comply with all applicable provisions of that Part and, to the extent not inconsistent with that Article, with this Chapter.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-924. Mountain ridge protection.
Any local government may enact and enforce a mountain ridge protection regulation pursuant to Article 14 of Chapter 113A of the General Statutes and
shall comply with all applicable provisions of that Article and, to the extent not inconsistent with that Article, with this Chapter, unless the local government has removed itself from the coverage of Article 14 of Chapter 113A of the General Statutes through the procedure provided by law.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-925. Stormwater control.
- A local government may adopt and enforce a stormwater control regulation to protect water quality and control water quantity. A local government may adopt a stormwater management regulation pursuant to this Chapter, its charter, other applicable laws, or any combination of these powers.
- A federal, State, or local government project shall comply with the requirements of a local government stormwater control regulation unless the federal, State, or local government agency has a National Pollutant Discharge Elimination System (NPDES) stormwater permit that applies to the project. A local government may take enforcement action to compel a State or local government agency to comply with a stormwater control regulation that implements the NPDES stormwater permit issued to the local government. To the extent permitted by federal law, including Chapter 26 of Title 33 of the United States Code, a local government may take enforcement action to compel a federal government agency to comply with a stormwater control regulation.
- A local government may implement illicit discharge detection and elimination controls, construction site stormwater runoff controls, and post-construction runoff controls through an ordinance or other regulatory mechanism to the extent allowable under State law.
- A local government that holds an NPDES permit issued pursuant to G.S. 143-214.7 may adopt a regulation, applicable within its planning and development regulation jurisdiction, to establish the stormwater control program necessary for the local government to comply with the permit. A local government may adopt a regulation that bans illicit discharges within its planning and development regulation jurisdiction. A local government may adopt a regulation, applicable within its planning and development regulation jurisdiction, that requires (i) deed restrictions and protective covenants to ensure that each project, including the stormwater management system, will be maintained so as to protect water quality and control water quantity and (ii) financial arrangements to ensure that adequate funds are available for the maintenance and replacement costs of the project.
- Unless the local government requests the permit condition in its permit application, the Environmental Management Commission may not require as a condition of an NPDES stormwater permit issued pursuant to G.S. 143-214.7 that a city implement the measure required by 40 Code of Federal Regulations § 122.34(b)(3)(1 July 2003 Edition) in its extraterritorial jurisdiction.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-926. Water supply watershed management.
A local government may enact and enforce a water supply watershed management and protection regulation pursuant to G.S. 143-214.5 and shall comply with all applicable provisions of that statute and, to the extent not inconsistent with that statute, with this Chapter.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§§ 160D-927 through 160D-929: Reserved for future codification purposes.
History
(2019-111, s. 2.4.)
PART 3. WIRELESS TELECOMMUNICATION FACILITIES.
§ 160D-930. Purpose and compliance with federal law.
- The purpose of this section is to ensure the safe and efficient integration of facilities necessary for the provision of advanced mobile broadband and wireless telecommunications services throughout the community and to ensure the ready availability of reliable wireless service to the public, government agencies, and first responders, with the intention of furthering the public safety and general welfare.
- The deployment of wireless infrastructure is critical to ensuring first responders can provide for the health and safety of all residents of North Carolina and, consistent with section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012, 47 U.S.C. § 1455(a), create a national wireless emergency communications network for use by first responders that in large measure will be dependent on facilities placed on existing wireless communications support structures. Therefore, it is the policy of this State to facilitate the placement of wireless communications support structures in all areas of North Carolina. The following standards shall apply to a local government's actions, as a regulatory body, in the regulation of the placement, construction, or modification of a wireless communications facility.
- The placement, construction, or modification of wireless communications facilities shall be in conformity with the Federal Communications Act, 47 U.S.C. § 332, as amended, section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012, 47 U.S.C. § 1455(a), and in accordance with the rules promulgated by the Federal Communications Commission.
- Nothing in this Part shall be construed to authorize a city to require the construction or installation of wireless facilities or to regulate wireless services other than as set forth herein.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-931. Definitions.
The following definitions apply in this Part:
- Antenna. - Communications equipment that transmits, receives, or transmits and receives electromagnetic radio signals used in the provision of all types of wireless communications services.
- Applicable codes. - The North Carolina State Building Code and any other uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization together with State or local amendments to those codes enacted solely to address imminent threats of destruction of property or injury to persons.
- Application. - A request submitted by an applicant to the local government for a permit to collocate wireless facilities or to approve the installation, modification, or replacement of a utility pole, city utility pole, or a wireless support structure.
- Base station. - A station at a specific site authorized to communicate with mobile stations, generally consisting of radio receivers, antennas, coaxial cables, power supplies, and other associated electronics.
- Building permit. - An official administrative authorization issued by the local government prior to beginning construction consistent with the provisions of G.S. 160D-1110.
- City right-of-way. - A right-of-way owned, leased, or operated by a city, including any public street or alley that is not a part of the State highway system.
- City utility pole. - A pole owned by a city in the city right-of-way that provides lighting, traffic control, or a similar function.
- Collocation. - The placement, installation, maintenance, modification, operation, or replacement of wireless facilities on, under, within, or on the surface of the earth adjacent to existing structures, including utility poles, city utility poles, water towers, buildings, and other structures capable of structurally supporting the attachment of wireless facilities in compliance with applicable codes. The term does not include the installation of new utility poles, city utility poles, or wireless support structures.
- Communications facility. - The set of equipment and network components, including wires and cables and associated facilities used by a communications service provider to provide communications service.
- Communications service. - Cable service as defined in 47 U.S.C. § 522(6), information service as defined in 47 U.S.C. § 153(24), telecommunications service as defined in 47 U.S.C. § 153(53), or wireless services.
- Communications service provider. - A cable operator as defined in 47 U.S.C. § 522(5); a provider of information service, as defined in 47 U.S.C. § 153(24); a telecommunications carrier, as defined in 47 U.S.C. § 153(51); or a wireless provider.
- Eligible facilities request. - A request for modification of an existing wireless tower or base station that involves collocation of new transmission equipment or replacement of transmission equipment but does not include a substantial modification.
- Equipment compound. - An area surrounding or near the base of a wireless support structure within which a wireless facility is located.
- Fall zone. - The area in which a wireless support structure may be expected to fall in the event of a structural failure, as measured by engineering standards.
- Land development regulation. - Any ordinance enacted pursuant to this Chapter.
- Micro wireless facility. - A small wireless facility that is no larger in dimension than 24 inches in length, 15 inches in width, and 12 inches in height and that has an exterior antenna, if any, no longer than 11 inches.
- Search ring. - The area within which a wireless support facility or wireless facility must be located in order to meet service objectives of the wireless service provider using the wireless facility or wireless support structure.
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Small wireless facility. - A wireless facility that meets the following qualifications:
- Each antenna is located inside an enclosure of no more than 6 cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements, if enclosed, could fit within an enclosure of no more than 6 cubic feet.
- All other wireless equipment associated with the facility has a cumulative volume of no more than 28 cubic feet. For the purposes of this sub-subdivision, the following types of ancillary equipment are not included in the calculation of equipment volume: electric meters, concealment elements, telecommunications demarcation boxes, ground-based enclosures, grounding equipment, power transfer switches, cut-off switches, vertical cable runs for the connection of power and other services, or other support structures.
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Substantial modification. - The mounting of a proposed wireless facility on a wireless support structure that substantially changes the physical dimensions of the support structure. The burden is on the local government to demonstrate that a mounting
that does not meet the listed criteria constitutes a substantial change to the physical dimensions of the wireless support structure. A mounting is presumed to be a substantial modification if it meets any one or more of the following
criteria:
- Increasing the existing vertical height of the structure by the greater of (i) more than ten percent (10%) or (ii) the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet.
- Except where necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable, adding an appurtenance to the body of a wireless support structure that protrudes horizontally from the edge of the wireless support structure the greater of (i) more than 20 feet or (ii) more than the width of the wireless support structure at the level of the appurtenance.
- Increasing the square footage of the existing equipment compound by more than 2,500 square feet.
- Utility pole. - A structure that is designed for and used to carry lines, cables, wires, lighting facilities, or small wireless facilities for telephone, cable television, electricity, lighting, or wireless services.
- Water tower. - A water storage tank, a standpipe, or an elevated tank situated on a support structure originally constructed for use as a reservoir or facility to store or deliver water.
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Wireless facility. - Equipment at a fixed location that enables wireless communications between user equipment and a communications network, including (i) equipment associated with wireless communications and (ii) radio transceivers, antennas, wires,
coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration. The term includes small wireless facilities. The term does not include any of the following:
- The structure or improvements on, under, within, or adjacent to which the equipment is collocated.
- Wireline backhaul facilities.
- Coaxial or fiber-optic cable that is between wireless structures or utility poles or city utility poles or that is otherwise not immediately adjacent to or directly associated with a particular antenna.
- Wireless infrastructure provider. - Any person with a certificate to provide telecommunications service in the State who builds or installs wireless communication transmission equipment, wireless facilities, or wireless support structures for small wireless facilities but that does not provide wireless services.
- Wireless provider. - A wireless infrastructure provider or a wireless services provider.
- Wireless services. - Any services, using licensed or unlicensed wireless spectrum, including the use of Wi-Fi, whether at a fixed location or mobile, provided to the public using wireless facilities.
- Wireless services provider. - A person who provides wireless services.
- Wireless support structure. - A new or existing structure, such as a monopole, lattice tower, or guyed tower that is designed to support or capable of supporting wireless facilities. A utility pole or a city utility pole is not a wireless support structure.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-932. Local authority.
A local government may plan for and regulate the siting or modification of wireless support structures and wireless facilities in accordance with land development regulations and in conformity with this Part. Except as expressly stated, nothing in this Part shall limit a local government from regulating applications to construct, modify, or maintain wireless support structures, or construct, modify, maintain, or collocate wireless facilities on a wireless support structure based on consideration of land use, public safety, and zoning considerations, including aesthetics, landscaping, structural design, setbacks, and fall zones, or State and local building code requirements, consistent with the provisions of federal law provided in G.S. 160D-930. For purposes of this Part, public safety includes, without limitation, federal, State, and local safety regulations but does not include requirements relating to radio frequency emissions of wireless facilities.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-933. Construction of new wireless support structures or substantial modifications of wireless support structures.
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Any person that proposes to construct a new wireless support structure or substantially modify a wireless support structure within the planning and development regulation jurisdiction of a local government must do both of the following:
- Submit a completed application with the necessary copies and attachments to the appropriate planning authority.
- Comply with any local ordinances concerning land use and any applicable permitting processes.
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A local government's review of an application for the placement or construction of a new wireless support structure or substantial modification of a wireless support structure shall only address public safety, land development, or zoning issues. In reviewing
an application, the local government may not require information on or evaluate an applicant's business decisions about its designed service, customer demand for its service, or quality of its service to or from a particular area
or site. A local government may not require information that concerns the specific need for the wireless support structure, including if the service to be provided from the wireless support structure is to add additional wireless
coverage or additional wireless capacity. A local government may not require proprietary, confidential, or other business information to justify the need for the new wireless support structure, including propagation maps and telecommunication
traffic studies. In reviewing an application, the local government may review the following:
- Applicable public safety, land-use, or zoning issues addressed in its adopted regulations, including aesthetics, landscaping, land-use based location priorities, structural design, setbacks, and fall zones.
- Information or materials directly related to an identified public safety, land development, or zoning issue including evidence that no existing or previously approved wireless support structure can reasonably be used for the wireless facility placement instead of the construction of a new wireless support structure that residential, historic, and designated scenic areas cannot be served from outside the area or that the proposed height of a new wireless support structure or initial wireless facility placement or a proposed height increase of a substantially modified wireless support structure or replacement wireless support structure is necessary to provide the applicant's designed service.
- A local government may require applicants for new wireless facilities to evaluate the reasonable feasibility of collocating new antennas and equipment on an existing wireless support structure or structures within the applicant's search ring. Collocation on an existing wireless support structure is not reasonably feasible if collocation is technically or commercially impractical or the owner of the existing wireless support structure is unwilling to enter into a contract for such use at fair market value. Local governments may require information necessary to determine whether collocation on existing wireless support structures is reasonably feasible.
- The local government shall issue a written decision approving or denying an application under this section within a reasonable period of time consistent with the issuance of other development approvals in the case of other applications, each as measured from the time the application is deemed complete.
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A local government may fix and charge an application fee, consulting fee, or other fee associated with the submission, review, processing, and approval of an application to site new wireless support structures or to substantially modify wireless support
structures or wireless facilities that is based on the costs of the services provided and does not exceed what is usual and customary for such services. Any charges or fees assessed by a local government on account of an outside
consultant shall be fixed in advance and incorporated into a permit or application fee and shall be based on the reasonable costs to be incurred by the local government in connection with the regulatory review authorized under
this section. The foregoing does not prohibit a local government from imposing additional reasonable and cost-based fees for costs incurred should an applicant amend its application. On request, the amount of the consultant charges
incorporated into the permit or application fee shall be separately identified and disclosed to the applicant. The fee imposed by a local government for review of the application may not be used for either of the following:
- Travel time or expenses, meals, or overnight accommodations incurred in the review of an application by a consultant or other third party.
- Reimbursements for a consultant or other third party based on a contingent fee basis or a results-based arrangement.
- The local government may condition approval of an application for a new wireless support structure on the provision of documentation prior to the issuance of a building permit establishing the existence of one or more parties, including the owner of the wireless support structure, who intend to locate wireless facilities on the wireless support structure. A local government shall not deny an initial development approval based on such documentation. A local government may condition a development approval on a requirement to construct facilities within a reasonable period of time, which shall be no less than 24 months.
- The local government may not require the placement of wireless support structures or wireless facilities on local government owned or leased property but may develop a process to encourage the placement of wireless support structures or facilities on local government owned or leased property, including an expedited approval process.
- This section shall not be construed to limit the provisions or requirements of any historic district or landmark regulation adopted pursuant to this Article.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-934. Collocation and eligible facilities requests of wireless support structures.
- Pursuant to section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012, 47 U.S.C. § 1455(a), a local government may not deny and shall approve any eligible facilities request as provided in this section. Nothing in this Part requires an application and approval for routine maintenance or limits the performance of routine maintenance on wireless support structures and facilities, including in-kind replacement of wireless facilities. Routine maintenance includes activities associated with regular and general upkeep of transmission equipment, including the replacement of existing wireless facilities with facilities of the same size. A local government may require an application for collocation or an eligible facilities request.
- A collocation or eligible facilities request application is deemed complete unless the local government provides notice that the application is incomplete in writing to the applicant within 45 days of submission or within some other mutually agreed upon time frame. The notice shall identify the deficiencies in the application which, if cured, would make the application complete. A local government may deem an application incomplete if there is insufficient evidence provided to show that the proposed collocation or eligible facilities request will comply with federal, State, and local safety requirements. A local government may not deem an application incomplete for any issue not directly related to the actual content of the application and subject matter of the collocation or eligible facilities request. An application is deemed complete on resubmission if the additional materials cure the deficiencies indicated.
- The local government shall issue a written decision approving an eligible facilities request application within 45 days of such application being deemed complete. For a collocation application that is not an eligible facilities request, the local government shall issue its written decision to approve or deny the application within 45 days of the application being deemed complete.
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A local government may impose a fee not to exceed one thousand dollars ($1,000) for technical consultation and the review of a collocation or eligible facilities request application. The fee must be based on the actual, direct, and reasonable administrative
costs incurred for the review, processing, and approval of a collocation application. A local government may engage a third-party consultant for technical consultation and the review of a collocation application. The fee imposed
by a local government for the review of the application may not be used for either of the following:
- Travel expenses incurred in a third-party review of a collocation application.
- Reimbursement for a consultant or other third party based on a contingent fee basis or results-based arrangement.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-935. Collocation of small wireless facilities.
- Except as expressly provided in this Part, a city shall not prohibit, regulate, or charge for the collocation of small wireless facilities.
- A city may not establish a moratorium on (i) filing, receiving, or processing applications or (ii) issuing permits or any other approvals for the collocation of small wireless facilities.
- Small wireless facilities that meet the height requirements of G.S. 160D-936(b)(2) shall only be subject to administrative review and approval under subsection (d) of this section if they are collocated (i) in a city right-of-way within any zoning district or (ii) outside of city rights-of-way on property other than single-family residential property.
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A city may require an applicant to obtain a permit to collocate a small wireless facility. A city shall receive applications for, process, and issue such permits subject to the following requirements:
- A city may not, directly or indirectly, require an applicant to perform services unrelated to the collocation for which approval is sought. For purposes of this subdivision, "services unrelated to the collocation," includes in-kind contributions to the city such as the reservation of fiber, conduit, or pole space for the city.
- The wireless provider shall complete an application as specified in form and content by the city. A wireless provider shall not be required to provide more information to obtain a permit than communications service providers that are not wireless providers.
- A permit application shall be deemed complete unless the city provides notice otherwise in writing to the applicant within 30 days of submission or within some other mutually agreed-upon time frame. The notice shall identify the deficiencies in the application which, if cured, would make the application complete. The application shall be deemed complete on resubmission if the additional materials cure the deficiencies identified.
- The permit application shall be processed on a nondiscriminatory basis and shall be deemed approved if the city fails to approve or deny the application within 45 days from the time the application is deemed complete or a mutually agreed upon time frame between the city and the applicant.
- A city may deny an application only on the basis that it does not meet any of the following: (i) the city's applicable codes, (ii) local code provisions or regulations that concern public safety, objective design standards for decorative utility poles, city utility poles, or reasonable and nondiscriminatory stealth and concealment requirements, including screening or landscaping for ground-mounted equipment, (iii) public safety and reasonable spacing requirements concerning the location of ground-mounted equipment in a right-of-way, or (iv) the historic preservation requirements in G.S. 160D-936(i). The city must (i) document the basis for a denial, including the specific code provisions on which the denial was based and (ii) send the documentation to the applicant on or before the day the city denies an application. The applicant may cure the deficiencies identified by the city and resubmit the application within 30 days of the denial without paying an additional application fee. The city shall approve or deny the revised application within 30 days of the date on which the application was resubmitted. Any subsequent review shall be limited to the deficiencies cited in the prior denial.
- An application shall include an attestation that the small wireless facilities must be collocated on the utility pole, city utility pole, or wireless support structure and that the small wireless facilities must be activated for use by a wireless services provider to provide service no later than one year from the permit issuance date, unless the city and the wireless provider agree to extend this period or a delay is caused by a lack of commercial power at the site.
- An applicant seeking to collocate small wireless facilities at multiple locations within the jurisdiction of a city shall be allowed, at the applicant's discretion, to file a consolidated application for no more than 25 separate facilities and receive a permit for the collocation of all the small wireless facilities meeting the requirements of this section. A city may remove small wireless facility collocations from a consolidated application and treat separately small wireless facility collocations (i) for which incomplete information has been provided or (ii) that are denied. The city may issue a separate permit for each collocation that is approved.
- The permit may specify that collocation of the small wireless facility shall commence within six months of approval and shall be activated for use no later than one year from the permit issuance date, unless the city and the wireless provider agree to extend this period or a delay is caused by a lack of commercial power at the site.
- Subject to the limitations provided in G.S. 160A-296(a)(6), a city may charge an application fee that shall not exceed the lesser of (i) the actual, direct, and reasonable costs to process and review applications for collocated small wireless facilities, (ii) the amount charged by the city for permitting of any similar activity, or (iii) one hundred dollars ($100.00) per facility for the first five small wireless facilities addressed in an application, plus fifty dollars ($50.00) for each additional small wireless facility addressed in the application. In any dispute concerning the appropriateness of a fee, the city has the burden of proving that the fee meets the requirements of this subsection.
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Subject to the limitations provided in G.S. 160A-296(a)(6), a city may impose a technical consulting fee for each application, not to exceed five hundred dollars ($500.00), to offset the cost of reviewing and processing applications required by this section.
The fee must be based on the actual, direct, and reasonable administrative costs incurred for the review, processing, and approval of an application. A city may engage an outside consultant for technical consultation and the review
of an application. The fee imposed by a city for the review of the application shall not be used for either of the following:
- Travel expenses incurred in the review of a collocation application by an outside consultant or other third party.
- Direct payment or reimbursement for an outside consultant or other third party based on a contingent fee basis or results-based arrangement.
- A city may require a wireless services provider to remove an abandoned wireless facility within 180 days of abandonment. Should the wireless services provider fail to timely remove the abandoned wireless facility, the city may cause such wireless facility to be removed and may recover the actual cost of such removal, including legal fees, if any, from the wireless services provider. For purposes of this subsection, a wireless facility shall be deemed abandoned at the earlier of the date that the wireless services provider indicates that it is abandoning such facility or the date that is 180 days after the date that such wireless facility ceases to transmit a signal, unless the wireless services provider gives the city reasonable evidence that it is diligently working to place such wireless facility back in service.
- A city shall not require an application or permit or charge fees for (i) routine maintenance, (ii) the replacement of small wireless facilities with small wireless facilities that are the same size or smaller, or (iii) installation, placement, maintenance, or replacement of micro wireless facilities that are suspended on cables strung between existing utility poles or city utility poles in compliance with applicable codes by or for a communications service provider authorized to occupy the city rights-of-way and who is remitting taxes under G.S. 105-164.4(a)(4c) or G.S. 105-164.4(a)(6).
- Nothing in this section shall prevent a city from requiring a work permit for work that involves excavation, affects traffic patterns, or obstructs vehicular traffic in the city right-of-way.
In any dispute concerning the appropriateness of a fee, the city has the burden of proving that the fee meets the requirements of this subsection.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-936. Use of public right-of-way.
- A city shall not enter into an exclusive arrangement with any person for use of city rights-of-way for the construction, operation, marketing, or maintenance of wireless facilities or wireless support structures or the collocation of small wireless facilities.
-
Subject to the requirements of G.S. 160D-935, a wireless provider may collocate small wireless facilities along, across, upon, or under any city right-of-way. Subject to the requirements of this section, a wireless provider may place, maintain, modify,
operate, or replace associated utility poles, city utility poles, conduit, cable, or related appurtenances and facilities along, across, upon, and under any city right-of-way. The placement, maintenance, modification, operation,
or replacement of utility poles and city utility poles associated with the collocation of small wireless facilities, along, across, upon, or under any city right-of-way shall be subject only to review or approval under G.S. 160D-935(d)
if the wireless provider meets all of the following requirements:
- Each new utility pole and each modified or replacement utility pole or city utility pole installed in the right-of-way shall not exceed 50 feet above ground level.
- Each new small wireless facility in the right-of-way shall not extend more than 10 feet above the utility pole, city utility pole, or wireless support structure on which it is collocated.
- Nothing in this section shall be construed to prohibit a city from allowing utility poles, city utility poles, or wireless facilities that exceed the limits set forth in subdivision (1) of subsection (b) of this section.
- Applicants for use of a city right-of-way shall comply with a city's undergrounding requirements prohibiting the installation of above-ground structures in the city rights-of-way without prior zoning approval, if those requirements (i) are nondiscriminatory with respect to type of utility, (ii) do not prohibit the replacement of structures existing at the time of adoption of the requirements, and (iii) have a waiver process.
- Notwithstanding subsection (d) of this section, in no instance in an area zoned single-family residential where the existing utilities are installed underground may a utility pole, city utility pole, or wireless support structure exceed 40 feet above ground level, unless the city grants a waiver or variance approving a taller utility pole, city utility pole, or wireless support structure.
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Except as provided in this Part, a city may assess a right-of-way charge under this section for use or occupation of the right-of-way by a wireless provider, subject to the restrictions set forth under G.S. 160A-296(a)(6). In addition, charges authorized
by this section shall meet all of the following requirements:
- The right-of-way charge shall not exceed the direct and actual cost of managing the city rights-of-way and shall not be based on the wireless provider's revenue or customer counts.
- The right-of-way charge shall not exceed that imposed on other users of the right-of-way, including publicly, cooperatively, or municipally owned utilities.
- The right-of-way charge shall be reasonable and nondiscriminatory.
- Nothing in this section is intended to authorize a person to place, maintain, modify, operate, or replace a privately owned utility pole or wireless support structure or to collocate small wireless facilities on a privately owned utility pole, a privately owned wireless support structure, or other private property without the consent of the property owner.
- A city may require a wireless provider to repair all damage to a city right-of-way directly caused by the activities of the wireless provider, while occupying, installing, repairing, or maintaining wireless facilities, wireless support structures, city utility poles, or utility poles and to return the right-of-way to its functional equivalence before the damage. If the wireless provider fails to make the repairs required by the city within a reasonable time after written notice, the city may undertake those repairs and charge the applicable party the reasonable and documented cost of the repairs. The city may maintain an action to recover the costs of the repairs.
- This section shall not be construed to limit local government authority to enforce historic preservation zoning regulations consistent with Part 4 of Article 9 of this Chapter, the preservation of local zoning authority under 47 U.S.C. § 332(c)(7), the requirements for facility modifications under 47 U.S.C. § 1455(a), or the National Historic Preservation Act of 1966, 54 U.S.C. § 300101, et seq., as amended, and the regulations, local acts, and city charter provisions adopted to implement those laws.
- A wireless provider may apply to a city to place utility poles in the city rights-of-way, or to replace or modify utility poles or city utility poles in the public rights-of-way, to support the collocation of small wireless facilities. A city shall accept and process the application in accordance with the provisions of G.S. 160D-935(d), applicable codes, and other local codes governing the placement of utility poles or city utility poles in the city rights-of-way, including provisions or regulations that concern public safety, objective design standards for decorative utility poles or city utility poles, or reasonable and nondiscriminatory stealth and concealment requirements, including those relating to screening or landscaping, or public safety and reasonable spacing requirements. The application may be submitted in conjunction with the associated small wireless facility application.
Nothing in this subsection is intended to establish or otherwise affect rates charged for attachments to utility poles, city utility poles, or wireless support structures. At its discretion, a city may provide free access to city rights-of-way on a nondiscriminatory basis in order to facilitate the public benefits of the deployment of wireless services.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-937. Access to city utility poles to install small wireless facilities.
- A city may not enter into an exclusive arrangement with any person for the right to collocate small wireless facilities on city utility poles. A city shall allow any wireless provider to collocate small wireless facilities on its city utility poles at just, reasonable, and nondiscriminatory rates, terms, and conditions, but in no instance may the rate exceed fifty dollars ($50.00) per city utility pole per year. The North Carolina Utilities Commission shall not consider this subsection as evidence in a proceeding initiated pursuant to G.S. 62-350(c).
- A request to collocate under this section may be denied only if there is insufficient capacity or for reasons of safety, reliability, and generally applicable engineering principles, and those limitations cannot be remedied by rearranging, expanding, or otherwise reengineering the facilities at the reasonable and actual cost of the city to be reimbursed by the wireless provider. In granting a request under this section, a city shall require the requesting entity to comply with applicable safety requirements, including the National Electrical Safety Code and the applicable rules and regulations issued by the Occupational Safety and Health Administration.
- If a city that operates a public enterprise as permitted by Article 16 of Chapter 160A of the General Statutes has an existing city utility pole attachment rate, fee, or other term with an entity, then, subject to termination provisions, that attachment rate, fee, or other term shall apply to collocations by that entity or its related entities on city utility poles.
- Following receipt of the first request from a wireless provider to collocate on a city utility pole, a city shall, within 60 days, establish the rates, terms, and conditions for the use of or attachment to the city utility poles that it owns or controls. Upon request, a party shall state in writing its objections to any proposed rate, terms, and conditions of the other party.
- In any controversy concerning the appropriateness of a rate for a collocation attachment to a city utility pole, the city has the burden of proving that the rates are reasonably related to the actual, direct, and reasonable costs incurred for use of space on the pole for such period.
- The city shall provide a good-faith estimate for any make-ready work necessary to enable the city utility pole to support the requested collocation, including pole replacement, if necessary, within 60 days after receipt of a complete application. Make-ready work, including any pole replacement, shall be completed within 60 days of written acceptance of the good-faith estimate by the applicant. For purposes of this section, the term "make-ready work" means any modification or replacement of a city utility pole necessary for the city utility pole to support a small wireless facility in compliance with applicable safety requirements, including the National Electrical Safety Code, that is performed in preparation for a collocation installation.
- The city shall not require more make-ready work than that required to meet applicable codes or industry standards. Fees for make-ready work shall not include costs related to preexisting or prior damage or noncompliance. Fees for make-ready work, including any pole replacement, shall not exceed actual costs or the amount charged to other communications service providers for similar work and shall not include any consultant fees or expenses.
- Nothing in this Part shall be construed to apply to an entity whose poles, ducts, and conduits are subject to regulation under section 224 of the Communications Act of 1934, 47 U.S.C. § 151, et seq., as amended, or under G.S. 62-350.
- This section shall not apply to an excluded entity. Nothing in this section shall be construed to affect the authority of an excluded entity to deny, limit, restrict, or determine the rates, fees, terms, and conditions for the use of or attachment to its utility poles, city utility poles, or wireless support structures by a wireless provider. This section shall not be construed to alter or affect the provisions of G.S. 62-350, and the rates, terms, or conditions for the use of poles, ducts, or conduits by communications service providers, as defined in G.S. 62-350, are governed solely by G.S. 62-350. For purposes of this section, "excluded entity" means (i) a city that owns or operates a public enterprise pursuant to Article 16 of Chapter 160A of the General Statutes consisting of an electric power generation, transmission, or distribution system or (ii) an electric membership corporation organized under Chapter 117 of the General Statutes that owns or controls poles, ducts, or conduits, but which is exempt from regulation under section 224 of the Communications Act of 1934, 47 U.S.C. § 151, et seq., as amended.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-938. Applicability.
- A city shall not adopt or enforce any ordinance, rule, regulation, or resolution that regulates the design, engineering, construction, installation, or operation of any small wireless facility located in an interior structure or upon the site of any stadium or athletic facility. This subsection does not apply to a stadium or athletic facility owned or otherwise controlled by the city. This subsection does not prohibit the enforcement of applicable codes.
- Nothing contained in this Part shall amend, modify, or otherwise affect any easement between private parties. Any and all rights for the use of a right-of-way are subject to the rights granted pursuant to an easement between private parties.
- Except as provided in this Part or otherwise specifically authorized by the General Statutes, a city may not adopt or enforce any regulation on the placement or operation of communications facilities in the rights-of-way of State-maintained highways or city rights-of-way by a provider authorized by State law to operate in the rights-of-way of State-maintained highways or city rights-of-way and may not regulate any communications services.
- Except as provided in this Part or specifically authorized by the General Statutes, a city may not impose or collect any tax, fee, or charge to provide a communications service over a communications facility in the right-of-way.
- The approval of the installation, placement, maintenance, or operation of a small wireless facility pursuant to this Part does not authorize the provision of any communications services or the installation, placement, maintenance, or operation of any communications facility, including a wireline backhaul facility, other than a small wireless facility, in the right-of-way.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-939: Reserved for future codification purposes.
PART 4. HISTORIC PRESERVATION.
§ 160D-940. Legislative findings.
The heritage of our State is one of our most valued and important assets. The conservation and preservation of historic districts and landmarks stabilize and increase property values and strengthen the overall economy of the State. This Part authorizes local governments within their respective planning and development regulation jurisdictions and by means of listing, regulation, and acquisition to do the following:
- To safeguard the heritage of the city or county by preserving any district or landmark therein that embodies important elements of its culture, history, architectural history, or prehistory.
- To promote the use and conservation of such district or landmark for the education, pleasure, and enrichment of the residents of the city or county and the State as a whole.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-941. Historic preservation commission.
Before it may designate one or more landmarks or historic districts, a local government shall establish or designate a historic preservation commission in accordance with G.S. 160D-303.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-942. Powers of the historic preservation commission.
A preservation commission established pursuant to this Chapter may, within the planning and development regulation jurisdiction of the local government, do any of the following:
- Undertake an inventory of properties of historical, prehistorical, architectural, and/or cultural significance.
- Recommend to the governing board areas to be designated by ordinance as "Historic Districts" and individual structures, buildings, sites, areas, or objects to be designated by ordinance as "Landmarks."
- Acquire by any lawful means the fee or any lesser included interest, including options to purchase, to properties within established districts or to any such properties designated as landmarks to hold, manage, preserve, restore, and improve such properties, and to exchange or dispose of the property by public or private sale, lease or otherwise, subject to covenants or other legally binding restrictions that will secure appropriate rights of public access and promote the preservation of the property.
- Restore, preserve, and operate historic properties.
- Recommend to the governing board that designation of any area as a historic district or part thereof, or designation of any building, structure, site, area, or object as a landmark, be revoked or removed for cause.
- Conduct an educational program regarding historic properties and districts within its jurisdiction.
- Cooperate with the State, federal, and local governments in pursuance of the purposes of this Part. The governing board or the commission, when authorized by the governing board, may contract with the State, or the United States of America, or any agency of either, or with any other organization provided the terms are not inconsistent with State or federal law.
- Enter, solely in performance of its official duties and only at reasonable times, upon private lands for examination or survey thereof. However, no member, employee, or agent of the commission may enter any private building or structure without the express consent of the owner or occupant thereof.
- Prepare and recommend the official adoption of a preservation element as part of the local government's comprehensive plan.
- Review and act upon proposals for alterations, demolitions, or new construction within historic districts, or for the alteration or demolition of designated landmarks, pursuant to this Part.
- Negotiate at any time with the owner of a building, structure, site, area, or object for its acquisition or its preservation, when such action is reasonably necessary or appropriate.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-943. Appropriations.
A governing board is authorized to make appropriations to a historic preservation commission established pursuant to this Chapter in any amount determined necessary for the expenses of the operation of the commission and may make available any additional amounts necessary for the acquisition, restoration, preservation, operation, and management of historic buildings, structures, sites, areas, or objects designated as historic landmarks, or within designated historic districts, or of land on which such buildings or structures are located, or to which they may be removed.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-944. Designation of historic districts.
- Any local government may, as part of a zoning regulation adopted pursuant to Article 7 of this Chapter or as a development regulation enacted or amended pursuant to Article 6 of this Chapter, designate and from time to time amend one or more historic districts within the area subject to the regulation. Historic districts established pursuant to this Part shall consist of areas that are deemed to be of special significance in terms of their history, prehistory, architecture, or culture and to possess integrity of design, setting, materials, feeling, and association.
-
No historic district or districts shall be designated under subsection (a) of this section until all of the following occur:
- An investigation and report describing the significance of the buildings, structures, features, sites, or surroundings included in the proposed district and a description of the boundaries of the district have been prepared.
- The Department of Natural and Cultural Resources, acting through the State Historic Preservation Officer or his or her designee, has made an analysis of and recommendations concerning the report and description of proposed boundaries. Failure of the Department to submit its written analysis and recommendations to the governing board within 30 calendar days after a written request for the analysis has been received by the Department relieves the governing board of any responsibility for awaiting the analysis, and the governing board may at any subsequent time take any necessary action to adopt or amend its zoning regulation.
- The governing board may also, in its discretion, refer the report and proposed boundaries under subsection (b) of this section to any local preservation commission or other interested body for its recommendations prior to taking action to amend the zoning regulation. With respect to any changes in the boundaries of a district, subsequent to its initial establishment, or the creation of additional districts within the jurisdiction, the investigative studies and reports required by subdivision (1) of subsection (b) of this section shall be prepared by the preservation commission and shall be referred to the planning board for its review and comment according to procedures set forth in the zoning regulation. Changes in the boundaries of an initial district or proposal for additional districts shall also be submitted to the Department of Natural and Cultural Resources in accordance with the provisions of subdivision (2) of subsection (b) of this section.
- G.S. 160D-914 applies to zoning or other development regulations pertaining to historic districts, and the authority under that statute for the ordinance to regulate the location or screening of solar collectors may encompass requiring the use of plantings or other measures to ensure that the use of solar collectors is not incongruous with the special character of the district.
A development regulation may treat historic districts either as a separate use district classification or as districts that overlay other zoning districts. Where historic districts are designated as separate use districts, the zoning regulation may include as uses by right or as special uses those uses found by the preservation commission to have existed during the period sought to be restored or preserved or to be compatible with the restoration or preservation of the district.
On receipt of these reports and recommendations, the local government may proceed in the same manner as would otherwise be required for the adoption or amendment of any appropriate zoning regulation.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d); 2021-88, s. 1(e).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2021-88, s. 1(e), effective July 22, 2021, substituted "A development" for "Such development" in the last paragraph of subsection (a); rewrote subsection (b); in subsection (c), substituted "a district" for "such district" and inserted "Natural and" preceding "Cultural Resources"; and substituted "G.S. 160D-914 applies" for "The provisions of G.S. 160D-910 apply" and "that statute" for "G.S. 160D-910(b)" in subsection (d).
§ 160D-945. Designation of landmarks.
Upon complying with G.S. 160D-946, the governing board may adopt and amend or repeal a regulation designating one or more historic landmarks. No property shall be recommended for designation as a historic landmark unless it is deemed and found by the preservation commission to be of special significance in terms of its historical, prehistorical, architectural, or cultural importance and to possess integrity of design, setting, workmanship, materials, feeling, and/or association.
The regulation shall describe each property designated in the regulation, the name or names of the owner or owners of the property, those elements of the property that are integral to its historical, architectural, or prehistorical value, including the land area of the property so designated, and any other information the governing board deems necessary. For each building, structure, site, area, or object so designated as a historic landmark, the regulation shall require that the waiting period set forth in this Part be observed prior to its demolition. For each designated landmark, the regulation may also provide for a suitable sign on the property indicating that the property has been so designated. If the owner consents, the sign shall be placed upon the property. If the owner objects, the sign shall be placed on a nearby public right-of-way.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-946. Required landmark designation procedures.
As a guide for the identification and evaluation of landmarks, the preservation commission shall undertake, at the earliest possible time and consistent with the resources available to it, an inventory of properties of historical, architectural, prehistorical, and cultural significance within its jurisdiction. Such inventories and any additions or revisions thereof shall be submitted as expeditiously as possible to the Office of Archives and History. No regulation designating a historic building, structure, site, area, or object as a landmark nor any amendment thereto may be adopted, nor may any property be accepted or acquired by a preservation commission or the governing board, until all of the following procedural steps have been taken:
- The preservation commission shall (i) prepare and adopt rules of procedure and (ii) prepare and adopt principles and guidelines, not inconsistent with this Part, for altering, restoring, moving, or demolishing properties designated as landmarks.
- The preservation commission shall make or cause to be made an investigation and report on the historic, architectural, prehistorical, educational, or cultural significance of each building, structure, site, area, or object proposed for designation or acquisition. Such investigation or report shall be forwarded to the Office of Archives and History, North Carolina Department of Cultural Resources.
- The Department of Cultural Resources, acting through the State Historic Preservation Officer, shall, upon request of the department or at the initiative of the preservation commission, be given an opportunity to review and comment upon the substance and effect of the designation of any landmark pursuant to this Part. Any comments shall be provided in writing. If the Department does not submit its comments or recommendation in connection with any designation within 30 days following receipt by the Department of the investigation and report of the preservation commission, the commission and any governing board shall be relieved of any responsibility to consider such comments.
- The preservation commission and the governing board shall hold a joint legislative hearing or separate legislative hearings on the proposed regulation. Notice of the hearing shall be made as provided by G.S. 160D-601.
- Following the hearings, the governing board may adopt the regulation as proposed, adopt the regulation with any amendments it deems necessary, or reject the proposed regulation.
- Upon adoption of the regulation, the owners and occupants of each designated landmark shall be given written notice of such designation within a reasonable time. One copy of the regulation and all amendments thereto shall be filed by the preservation commission in the office of the register of deeds of the county in which the landmark or landmarks are located. In the case of any landmark property lying within the planning and development regulation jurisdiction of a city, a second copy of the regulation and all amendments thereto shall be kept on file in the office of the city or town clerk and be made available for public inspection at any reasonable time. A third copy of the regulation and any amendments shall be given to the local government building inspector. The fact that a building, structure, site, area, or object has been designated a landmark shall be clearly indicated on all tax maps maintained by the local government for such period as the designation remains in effect.
- Upon the adoption of the landmark regulation or any amendment thereto, it shall be the duty of the preservation commission to give notice thereof to the tax supervisor of the county in which the property is located. The designation and any recorded restrictions upon the property limiting its use for preservation purposes shall be considered by the tax supervisor in appraising it for tax purposes.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-947. Certificate of appropriateness required.
- Certificate Required. - After the designation of a landmark or a historic district, no exterior portion of any building or other structure, including masonry walls, fences, light fixtures, steps and pavement, or other appurtenant features, nor above-ground utility structure nor any type of outdoor advertising sign shall be erected, altered, restored, moved, or demolished on the landmark or within the district until after an application for a certificate of appropriateness as to exterior features has been submitted to and approved by the preservation commission. The local government shall require such a certificate to be issued by the commission prior to the issuance of a building permit granted for the purposes of constructing, altering, moving, or demolishing structures, which certificate may be issued subject to reasonable conditions necessary to carry out the purposes of this Part. A certificate of appropriateness is required whether or not a building or other permit is required.
- Interior Spaces. - Notwithstanding subsection (a) of this section, jurisdiction of the commission over interior spaces is limited to specific interior features of architectural, artistic, or historical significance in publicly owned landmarks and of privately owned historic landmarks for which consent for interior review has been given by the owner. The consent of an owner for interior review binds future owners and/or successors in if the consent has been filed in the office of the register of deeds of the county in which the property is located and indexed according to the name of the owner of the property in the grantee and grantor indexes. The landmark designation shall specify the interior features to be reviewed and the specific nature of the commission's jurisdiction over the interior.
- Rules and Standards. - Prior to any action to enforce a landmark or historic district regulation, the commission shall (i) prepare and adopt rules of procedure and (ii) prepare and adopt principles and standards not inconsistent with this Part to guide the commission in determining congruity with the special character of the landmark or district for new construction, alterations, additions, moving, and demolition. The landmark or historic district regulation may provide, subject to prior adoption by the preservation commission of detailed standards, for staff review and approval as an administrative decision of applications for a certificate of appropriateness for minor work or activity as defined by the regulation; provided, however, that no application for a certificate of appropriateness may be denied without formal action by the preservation commission. Other than these administrative decisions on minor works, decisions on certificates of appropriateness are quasi-judicial and shall follow the procedures of G.S. 160D-406.
- Time for Review. - All applications for certificates of appropriateness shall be reviewed and acted upon within a reasonable time, not to exceed 180 days from the date the application for a certificate of appropriateness is filed, as defined by the regulation or the commission's rules of procedure. As part of its review procedure, the commission may view the premises and seek the advice of the Division of Archives and History or such other expert advice as it may deem necessary under the circumstances.
-
Appeals. -
- Appeals of administrative decisions allowed by regulation may be made to the commission.
- All decisions of the commission in granting or denying a certificate of appropriateness may, if so provided in the regulation, be appealed to the board of adjustment in the nature of certiorari within times prescribed for appeals of administrative decisions in G.S. 160D-405(d). To the extent applicable, the provisions of G.S. 160D-1402 apply to appeals in the nature of certiorari to the board of adjustment.
- Appeals from the board of adjustment may be made pursuant to G.S. 160D-1402.
- If the regulation does not provide for an appeal to the board of adjustment, appeals of decisions on certificates of appropriateness may be made to the superior court as provided in G.S. 160D-1402.
- Petitions for judicial review shall be taken within times prescribed for appeal of quasi-judicial decisions in G.S. 160D-1405. Appeals in any such case shall be heard by the superior court of the county in which the local government is located.
- Public Buildings. - All of the provisions of this Part are hereby made applicable to construction, alteration, moving, and demolition by the State of North Carolina, its political subdivisions, agencies, and instrumentalities, provided, however, they do not apply to interiors of buildings or structures owned by the State of North Carolina. The State and its agencies may appeal to the North Carolina Historical Commission or any successor agency assuming its responsibilities under G.S. 121-12(a) from any decision of a local preservation commission. The North Carolina Historical Commission shall render its decision within 30 days from the date that the notice of appeal by the State is received by it. The current edition of the Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings shall be the sole principles and guidelines used in reviewing applications of the State for certificates of appropriateness. The decision of the North Carolina Historical Commission is final and binding upon both the State and the preservation commission.
For purposes of this Part, "exterior features" include the architectural style, general design, and general arrangement of the exterior of a building or other structure, including the kind and texture of the building material, the size and scale of the building, and the type and style of all windows, doors, light fixtures, signs, and other appurtenant fixtures. In the case of outdoor advertising signs, "exterior features" mean the style, material, size, and location of all such signs. Such "exterior features" may, in the discretion of the local governing board, include historic signs, color, and significant landscape, archaeological, and natural features of the area.
Except as provided in subsection (b) of this section, the commission has no jurisdiction over interior arrangement. The commission shall take no action under this section except to prevent the construction, reconstruction, alteration, restoration, moving, or demolition of buildings, structures, appurtenant fixtures, outdoor advertising signs, or other significant features in the district that would be incongruous with the special character of the landmark or district. In making decisions on certificates of appropriateness, the commission shall apply the rules and standards adopted pursuant to subsection (c) of this section.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 24, 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
This section was amended by Session Laws 2020-25, s. 24, in the coded bill drafting format provided by G.S. 120-20.1. In subsection (b), the word "title" appears to have been inadvertently deleted following "successor in". Subsection (b) has been set out in the form above at the direction of the Revisor of Statutues.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Session Laws 2020-97, s. 3.21(a)-(g), as amended by Session Laws 2021-3, s. 2.21(a), provides: '(a) Definitions. - As used in this section, the following definitions apply:
"(1) Development approval. - Any of the following approvals issued by any unit of local government, regardless of the form of the approval, that are for the development of land:
"a. Any approval of an erosion and sedimentation control plan granted by a local government under Article 4 of Chapter 113A of the General Statutes.
"b. Any building permit issued under Article 9 of Chapter 143 of the General Statutes.
"c. Any approval by a county of sketch plans, preliminary plats, plats regarding a subdivision of land, a site-specific development plan or a phased development plan, a development permit, a development agreement, or a building permit under Chapter 160D of the General Statutes.
"d. Any approval by a city of sketch plans, preliminary plats, plats regarding a subdivision of land, a site-specific development plan or a phased development plan, a development permit, a development agreement, or a building permit under Chapter 160D of the General Statutes.
"e. Any certificate of appropriateness issued by a preservation commission of a city under Chapter 160D of the General Statutes.
"(2) Development. - The division of a parcel of land into two or more parcels; the construction, reconstruction, conversion, structural alteration, relocation, or enlargement of any building or other structure or facility; or any grading, soil removal or relocation, excavation or landfill, or any use or change in the use of any building or other structure or land or extension of the use of land.
"(b) For any development approval that is current and valid at any point during the period beginning September 2, 2020, and ending 30 days after Executive Order No. 116 is rescinded, the expiration date of the period of the development approval and any associated vested right under G.S. 160D-108 or G.S. 160D-108.1 is automatically extended 150 days from the date the Executive Order is rescinded.
"(c) This section shall not be construed or implemented to:
"(1) Extend any permit or approval issued by the United States or any of its agencies or instrumentalities.
"(2) Extend any permit or approval for which the term or duration of the permit or approval is specified or determined pursuant to federal law.
"(3) Shorten the duration that any development approval would have had in the absence of this section.
"(4) Prohibit the granting of such additional extensions as are provided by law.
"(5) Affect any administrative consent order issued by the Department of Environmental Quality in effect or issued at any time from the effective date of this section to 30 days after Executive Order No. 116 is rescinded.
"(6) Affect the ability of a government entity to revoke or modify a development approval or to accept voluntary relinquishment of a development approval by the holder of the development approval pursuant to law.
"(7) Modify any requirement of law that is necessary to retain federal delegation by the State of the authority to implement a federal law or program.
"(8) Modify any person's obligations or impair the rights of any party under contract, including bond or other similar undertaking.
"(9) Authorize the charging of a water or wastewater tap fee that has been previously paid in full for a project subject to a development approval.
"(d) The provisions of this section shall be liberally construed to effectuate the purposes of this section.
"(e) For any development approval extended by this section, the holder of the development approval shall:
"(1) Comply with all applicable laws, regulations, and policies in effect at the time the development approval was originally issued by the governmental entity.
"(2) Maintain all performance guarantees that are imposed as a condition of the initial development approval for the duration of the period the development approval is extended or until affirmatively released from that obligation by the issuing governmental entity.
"(3) Complete any infrastructure necessary in order to obtain a certificate of occupancy or other final permit approval from the issuing governmental entity.
"(f) Failure to comply with any condition in this section may result in termination of the extension of the development approval by the issuing governmental entity. In the event of a termination of the extension of a development approval, the issuing governmental entity shall provide written notice to the last known address of the original holder of the development approval of the termination of the extension of the development approval, including the reason for the termination. Termination of an extension of a development approval shall be subject to appeal to the Board of Adjustment under the requirements set forth in law if the development approval was issued by a unit of local government with planning authority under Chapter 160D of the General Statutes.
"(g) This section is effective when it becomes law and expires 30 days after Executive Order No. 116 is rescinded. Any development approval extended in accordance with subsection (b) of this section shall remain in effect until 150 days from the date the Executive Order is rescinded in accordance with subsection (b) of this section."
Session Laws 2020-97, s. 4.5, is a severability clause.
Effect of Amendments. - Session Laws 2020-25, s. 24, effective June 19, 2020, substituted "After the" for "From and after the" at the beginning of subsection (a); substituted "G.S. 160D-405(d)" for "G.S. 160D-405(c)" in the first sentence of subdivision (e)(2); substituted "G.S. 160D-1405" for "G.S. 160D-1404" in the first sentence of subdivision (e)(5); and made minor stylistic changes.
§ 160D-948. Certain changes not prohibited.
Nothing in this Part shall be construed to prevent the ordinary maintenance or repair of any exterior architectural feature in a historic district or of a landmark that does not involve a change in design, material, or appearance thereof, nor to prevent the construction, reconstruction, alteration, restoration, moving, or demolition of any such feature which the building inspector or similar official shall certify is required by the public safety because of an unsafe or dangerous condition. Nothing in this Part shall be construed to prevent a property owner from making any use of his or her property that is not prohibited by other law. Nothing in this Part shall be construed to prevent the maintenance or, in the event of an emergency, the immediate restoration of any existing above-ground utility structure without approval by the preservation commission.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-949. Delay in demolition of landmarks and buildings within historic district.
- An application for a certificate of appropriateness authorizing the relocation, demolition, or destruction of a designated landmark or a building, structure, or site within the district may not be denied, except as provided in subsection (c) of this section. However, the effective date of such a certificate may be delayed for a period of up to 365 days from the date of approval. The maximum period of delay authorized by this section shall be reduced by the preservation commission where it finds that the owner would suffer extreme hardship or be permanently deprived of all beneficial use of or return from such property by virtue of the delay. During such period, the preservation commission shall negotiate with the owner and with any other parties in an effort to find a means of preserving the building or site. If the preservation commission finds that a building or site within a district has no special significance or value toward maintaining the character of the district, it shall waive all or part of such period and authorize earlier demolition or removal.
- The governing board may enact a regulation to prevent the demolition by neglect of any designated landmark or any building or structure within an established historic district. Such regulation shall provide appropriate safeguards to protect property owners from undue economic hardship.
- An application for a certificate of appropriateness authorizing the demolition or destruction of a building, site, or structure determined by the State Historic Preservation Officer as having statewide significance as defined in the criteria of the National Register of Historic Places may be denied except where the preservation commission finds that the owner would suffer extreme hardship or be permanently deprived of all beneficial use or return by virtue of the denial.
If the preservation commission or planning board has voted to recommend designation of a property as a landmark or designation of an area as a district, and final designation has not been made by the governing board, the demolition or destruction of any building, site, or structure located on the property of the proposed landmark or in the proposed district may be delayed by the preservation commission or planning board for a period of up to 180 days or until the governing board takes final action on the designation, whichever occurs first.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-950. Demolition by neglect to contributing structures outside local historic districts.
Notwithstanding G.S. 160D-949 or any other provision of law, the governing board may apply its demolition-by-neglect regulations to contributing structures located outside the local historic district within an adjacent central business district. The governing board may modify and revise its demolition-by-neglect regulations as necessary to implement this section and to further its intent. This section is applicable to any local government provided such local government (i) has designated portions of the central business district and its adjacent historic district as an Urban Progress Zone as defined in G.S. 143B-437.09 and (ii) is recognized by the State Historic Preservation Office and the U.S. Department of the Interior as a Certified Local Government in accordance with the National Historic Preservation Act of 1966, as amended by 16 U.S.C. § 470, et seq., and the applicable federal regulations 36 C.F.R. Part 61, but is located in a county that has not received the same certification.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-951. Conflict with other laws.
Whenever any regulation adopted pursuant to this Part requires a longer waiting period or imposes other higher standards with respect to a designated historic landmark or district than are established under any other statute, charter provision, or regulation, this Part shall govern. Whenever the provisions of any other statute, charter provision, ordinance, or regulation require a longer waiting period or impose other higher standards than are established under this Part, such other statute, charter provision, ordinance, or regulation shall govern.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§§ 160D-952 through 160D-959: Reserved for future codification purposes.
History
(2019-111, s. 2.4.)
PART 5. COMMUNITY APPEARANCE COMMISSIONS.
§ 160D-960. Powers and duties of commission.
A community appearance commission shall make careful study of the visual problems and needs of the local government within its planning and development regulation jurisdiction and shall make any plans and carry out any programs that will, in accordance with the provisions of this Part, enhance and improve the visual quality and aesthetic characteristics of the local government. To this end, the governing board may confer upon the appearance commission the following powers and duties:
- To initiate, promote, and assist in the implementation of programs of general community beautification in the local government.
- To coordinate the activities of individuals, agencies, and organizations, public and private, whose plans, activities, and programs bear upon the appearance of the local government.
- To provide leadership and guidance in matters of area or community design and appearance to individuals, to public and private organizations, and to agencies.
- To make studies of the visual characteristics and problems of the local government, including surveys and inventories of an appropriate nature, and to recommend standards and policies of design for the entire area, any portion or neighborhood thereof, or any project to be undertaken.
- To prepare both general and specific plans for the improved appearance of the local government. These plans may include the entire area or any part thereof and may include private as well as public property. The plans shall set forth desirable standards and goals for the aesthetic enhancement of the local government or any part thereof within its area of planning and development regulation jurisdiction, including public ways and areas, open spaces, and public and private buildings and projects.
-
To participate, in any way deemed appropriate by the governing board of the local government and specified in the ordinance establishing the commission, in the implementation of its plans. To this end, the governing board may include in the ordinance
the following powers:
- To request from the proper officials of any public agency or body, including agencies of the State and its political subdivisions, its plans for public buildings, facilities, or projects to be located within the local government's planning and development regulation jurisdiction.
- To review these plans and to make recommendations regarding their aesthetic suitability to the appropriate agency or to the planning or governing board. All plans shall be reviewed by the commission in a prompt and expeditious manner, and all recommendations of the commission with regard to any public project shall be made in writing. Copies of the recommendations shall be transmitted promptly to the planning or governing board and to the appropriate agency.
- To formulate and recommend to the appropriate planning or governing board the adoption or amendment of ordinances, including zoning regulations, subdivision regulations, and other local development regulations, that will, in the opinion of the commission, serve to enhance the appearance of the city or county and surrounding areas.
- To direct the attention of local government officials to needed enforcement of any ordinance that may in any way affect the appearance of the city or county.
- To seek voluntary adherence to the standards and policies of its plans.
- To enter, in the performance of its official duties and at reasonable times, upon private lands and make examinations or surveys.
- To promote public interest in and an understanding of its recommendations, studies, and plans, and, to that end, prepare, publish, and distribute to the public such studies and reports that will, in the opinion of the commission, advance the cause of improved appearance.
- To conduct public meetings and hearings, giving reasonable notice to the public thereof.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-961. Staff services; advisory council.
The commission may recommend to the governing board suitable arrangements for the procurement or provision of staff or technical services for the commission, and the governing board may appropriate such amount as it deems necessary to carry out the purposes for which it was created. The commission may establish an advisory council or other committees.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-962. Annual report.
The commission shall, no later than April 15 of each year, submit to the governing board a written report of its activities, a statement of its expenditures to date for the current fiscal year, and its requested budget for the next fiscal year. All accounts and funds of the commission shall be administered substantially in accordance with the requirements of the Municipal Fiscal Control Act or the County Fiscal Control Act.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-963. Receipt and expenditure of funds.
The commission may receive contributions from private agencies, foundations, organizations, individuals, the State or federal government, or any other source, in addition to any sums appropriated for its use by the governing board. It may accept and disburse these funds for any purpose within the scope of its authority as herein specified. All sums appropriated by the local government to further the work and purposes of the commission are deemed to be for a public purpose.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§§ 160D-964 through 160D-969: Reserved for future codification purposes.
History
(2019-111, s. 2.4.)
ARTICLE 10. Development Agreements.
Sec.
§ 160D-1001. Authorization.
-
The General Assembly finds the following:
- Development projects often occur in multiple phases over several years, requiring a long-term commitment of both public and private resources.
- Such developments often create community impacts and opportunities that are difficult to accommodate within traditional zoning processes.
- Because of their scale and duration, such projects often require careful coordination of public capital facilities planning, financing, and construction schedules and phasing of the private development.
- Such projects involve substantial commitments of private capital, which developers are usually unwilling to risk without sufficient assurances that development standards will remain stable through the extended period of the development.
- Such developments often permit communities and developers to experiment with different or nontraditional types of development concepts and standards, while still managing impacts on the surrounding areas.
- To better structure and manage development approvals for such developments and ensure their proper integration into local capital facilities programs, local governments need flexibility to negotiate such developments.
- Local governments may enter into development agreements with developers, subject to the procedures of this Article. In entering into such agreements, a local government may not exercise any authority or make any commitment not authorized by general or local act and may not impose any tax or fee not authorized by otherwise applicable law.
- This Article is supplemental to the powers conferred upon local governments and does not preclude or supersede rights and obligations established pursuant to other law regarding development approvals, site-specific vesting plans, or other provisions of law. A development agreement shall not exempt the property owner or developer from compliance with the State Building Code or State or local housing codes that are not part of the local government's development regulations. When the governing board approves the rezoning of any property associated with a development agreement executed and recorded pursuant to this Article, the provisions of G.S. 160D-605(a) apply.
- Development authorized by a development agreement shall comply with all applicable laws, including all ordinances, resolutions, regulations, permits, policies, and laws affecting the development of property, including laws governing permitted uses of the property, density, intensity, design, and improvements.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1002. Definitions.
The following definitions apply in this Article:
- Development. - The planning for or carrying out of a building activity, the making of a material change in the use or appearance of any structure or property, or the dividing of land into two or more parcels. When appropriate to the context, "development" refers to the planning for or the act of developing or to the result of development. Reference to a specific operation is not intended to mean that the operation or activity, when part of other operations or activities, is not development. Reference to particular operations is not intended to limit the generality of this item.
- Public facilities. - Major capital improvements, including, but not limited to, transportation, sanitary sewer, solid waste, drainage, potable water, educational, parks and recreational, and health systems and facilities.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1003. Approval of governing board required.
- A local government may establish procedures and requirements, as provided in this Article, to consider and enter into development agreements with developers. A development agreement must be approved by the governing board of a local government following the procedures specified in G.S. 160D-1005.
- The development agreement may, by ordinance, be incorporated, in whole or in part, into any development regulation adopted by the local government. A development agreement may be considered concurrently with a zoning map or text amendment affecting the property and development subject to the development agreement. A development agreement may be concurrently considered with and incorporated by reference with a sketch plan or preliminary plat required under a subdivision regulation or a site plan or other development approval required under a zoning regulation. If incorporated into a conditional district, the provisions of the development agreement shall be treated as a development regulation in the event of the developer's bankruptcy.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1004. Size and duration.
A local government may enter into a development agreement with a developer for the development of property as provided in this Article for developable property of any size. Development agreements shall be of a reasonable term specified in the agreement.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1005. Hearing.
Before entering into a development agreement, a local government shall conduct a legislative hearing on the proposed agreement. The notice provisions of G.S. 160D-602 applicable to zoning map amendments shall be followed for this hearing. The notice for the hearing must specify the location of the property subject to the development agreement, the development uses proposed on the property, and must specify a place where a copy of the proposed development agreement can be obtained.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 25, 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 25, effective June 19, 2020, substituted "Hearing" for "Public hearing" in the heading and deleted "public" preceding "hearing" in the second sentence.
§ 160D-1006. Content and modification.
-
A development agreement shall, at a minimum, include all of the following:
- A description of the property subject to the agreement and the names of its legal and equitable property owners.
- The duration of the agreement. However, the parties are not precluded from entering into subsequent development agreements that may extend the original duration period.
- The development uses permitted on the property, including population densities and building types, intensities, placement on the site, and design.
- A description of public facilities that will serve the development, including who provides the facilities, the date any new public facilities, if needed, will be constructed, and a schedule to assure public facilities are available concurrent with the impacts of the development. In the event that the development agreement provides that the local government shall provide certain public facilities, the development agreement shall provide that the delivery date of such public facilities will be tied to successful performance by the developer in implementing the proposed development, such as meeting defined completion percentages or other performance standards.
- A description, where appropriate, of any reservation or dedication of land for public purposes and any provisions agreed to by the developer that exceed existing laws related to protection of environmentally sensitive property.
- A description, where appropriate, of any conditions, terms, restrictions, or other requirements for the protection of public health, safety, or welfare.
- A description, where appropriate, of any provisions for the preservation and restoration of historic structures.
- A development agreement may also provide that the entire development or any phase of it be commenced or completed within a specified period of time. If required by ordinance or in the agreement, the development agreement shall provide a development schedule, including commencement dates and interim completion dates at no greater than five-year intervals; provided, however, the failure to meet a commencement or completion date does not, in and of itself, constitute a material breach of the development agreement pursuant to G.S. 160D-1008 but must be judged based upon the totality of the circumstances. The developer may request a modification in the dates as set forth in the agreement.
- If more than one local government is made party to an agreement, the agreement must specify which local government is responsible for the overall administration of the development agreement. A local or regional utility authority may also be made a party to the development agreement.
- The development agreement also may cover any other matter, including defined performance standards, not inconsistent with this Chapter. The development agreement may include mutually acceptable terms regarding provision of public facilities and other amenities and the allocation of financial responsibility for their provision, provided any impact mitigation measures offered by the developer beyond those that could be required by the local government shall be expressly enumerated within the agreement, and provided the agreement may not include a tax or impact fee not otherwise authorized by law.
- Consideration of a proposed major modification of the agreement shall follow the same procedures as required for initial approval of a development agreement. What changes constitute a major modification may be determined by ordinance adopted pursuant to G.S. 160D-1003 or as provided for in the development agreement.
- Any performance guarantees under the development agreement shall comply with G.S. 160D-804.1.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 26, 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 26, effective June 19, 2020, made a minor stylistic change in subsection (b); deleted "pursuant to G.S. 160D-804" following "local government" in the second sentence of subsection (d); and substituted "G.S. 160D-804.1" for "G.S. 160D-804(d)" in subsection (f).
§ 160D-1007. Vesting.
- Unless the development agreement specifically provides for the application of subsequently enacted laws, the laws applicable to development of the property subject to a development agreement are those in force at the time of execution of the agreement.
- Except for grounds specified in G.S. 160D-108(c) or G.S. 160D-108.1(f), a local government may not apply subsequently adopted ordinances or development policies to a development that is subject to a development agreement.
- In the event State or federal law is changed after a development agreement has been entered into and the change prevents or precludes compliance with one or more provisions of the development agreement, the local government may modify the affected provisions, upon a finding that the change in State or federal law has a fundamental effect on the development agreement.
- This section does not abrogate any vested rights otherwise preserved by law.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 27, 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 27, effective June 19, 2020, substituted "G.S. 160D-108(c) or G.S. 160D-108.1(f)" for "G.S. 160D-108(c)" in subsection (b).
§ 160D-1008. Breach and cure.
- Procedures established pursuant to G.S. 160D-1003 may include a provision requiring periodic review by the zoning administrator or other appropriate officer of the local government, at which time the developer shall demonstrate good-faith compliance with the terms of the development agreement.
- If the local government finds and determines that the developer has committed a material breach of the agreement, the local government shall notify the developer in writing setting forth with reasonable particularity the nature of the breach and the evidence supporting the finding and determination and providing the developer a reasonable time in which to cure the material breach.
- If the developer fails to cure the material breach within the time given, then the local government unilaterally may terminate or modify the development agreement, provided the notice of termination or modification may be appealed to the board of adjustment in the manner provided by G.S. 160D-405.
- An ordinance adopted pursuant to G.S. 160D-1003 or the development agreement may specify other penalties for breach in lieu of termination, including, but not limited to, penalties allowed for violation of a development regulation. Nothing in this Article shall be construed to abrogate or impair the power of the local government to enforce applicable law.
- A development agreement shall be enforceable by any party to the agreement notwithstanding any changes in the development regulations made subsequent to the effective date of the development agreement. Any party to the agreement may file an action for injunctive relief to enforce the terms of a development agreement.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1009. Amendment or termination.
Subject to the provisions of G.S. 160D-1006(e), a development agreement may be amended or terminated by mutual consent of the parties.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1010. Change of jurisdiction.
- Except as otherwise provided by this Article, any development agreement entered into by a local government before the effective date of a change of jurisdiction shall be valid for the duration of the agreement or eight years from the effective date of the change in jurisdiction, whichever is earlier. The parties to the development agreement and the local government assuming jurisdiction have the same rights and obligations with respect to each other regarding matters addressed in the development agreement as if the property had remained in the previous jurisdiction.
- A local government assuming jurisdiction may modify or suspend the provisions of the development agreement if the local government determines that the failure of the local government to do so would place the residents of the territory subject to the development agreement or the residents of the local government, or both, in a condition dangerous to their health or safety, or both.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1011. Recordation.
The developer shall record the agreement with the register of deeds in the county where the property is located within 14 days after the local government and developer execute an approved development agreement. No development approvals may be issued until the development agreement has been recorded. The burdens of the development agreement are binding upon, and the benefits of the agreement shall inure to, all successors in interest to the parties to the agreement.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1012. Applicability of procedures to approve debt.
In the event that any of the obligations of the local government in the development agreement constitute debt, the local government shall comply, at the time of the obligation to incur the debt and before the debt becomes enforceable against the local government, with any applicable constitutional and statutory procedures for the approval of this debt.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
ARTICLE 11. Building Code Enforcement.
Sec.
§ 160D-1101. Definitions.
As used in this Article, the following terms shall have their ordinary meaning and shall also be read to include the following:
- Building or buildings. - Includes other structures.
- Governing board or board of commissioners. - Includes the Tribal Council of a federally recognized Indian tribe.
- Local government. - Includes a federally recognized Indian tribe, and, as to such tribe, includes lands held in trust for the tribe.
- Public officer. - Includes the officer or officers who are authorized by regulations adopted hereunder to exercise the powers prescribed by the regulations and by this Article.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1102. Building code administration.
A local government may create an inspection department and may appoint inspectors who may be given appropriate titles, such as building inspector, electrical inspector, plumbing inspector, housing inspector, zoning inspector, heating and air-conditioning inspector, fire prevention inspector, or deputy or assistant inspector, or another title generally descriptive of the duties assigned. Every local government shall perform the duties and responsibilities set forth in G.S. 160D-1104 either by (i) creating its own inspection department, (ii) creating a joint inspection department in cooperation with one or more other units of local government, pursuant to Part 1 of Article 20 of Chapter 160A of the General Statutes, (iii) contracting with another unit of local government for the provision of inspection services pursuant to Part 1 of Article 20 of Chapter 160A of the General Statutes, or (iv) arranging for the county in which a city is located to perform inspection services within the city's jurisdiction as authorized by G.S. 160D-1104 and G.S. 160D-202.
In the event that any local government fails to provide inspection services or ceases to provide inspection services, the Commissioner of Insurance shall arrange for the provision of inspection services, either through personnel employed by the department
or through an arrangement with other units of government. In either event, the Commissioner has and may exercise within the local government's planning and development regulation jurisdiction all powers made available to the governing
board with respect to building inspection under this Article and Part 1 of Article 20 of Chapter 160A of the General Statutes.
Whenever the Commissioner has intervened in this manner, the local government may assume provision of inspection services only after giving the Commissioner two years' written notice of its intention to do so; however, the Commissioner
may waive this requirement or permit assumption at an earlier date upon finding that an earlier assumption will not unduly interfere with arrangements made for the provision of those services.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d); 2021-88, s. 1(f).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2021-88, s. 1(f), effective July 22, 2021, rewrote the first paragraph; and, in the last paragraph, substituted "inspection services" for "such services" twice, and made stylistic changes throughout.
Legal Periodicals. - For comment, "Urban Planning and Land Use Regulation: The Need for Consistency," see 14 Wake Forest L. Rev. 81 (1978).
For note, "Municipal Liability for Negligent Inspections in Sinning v. Clark - A 'Hollow' Victory for the Public Duty Doctrine," see 18 Campbell L. Rev. 241 (1996).
CASE NOTES
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 153A-351, former G.S. 160A-411, and prior law.
Purpose. - One of the specific purposes of G.S. 160A-411 to 160A-425 is to promote the safety of the general public. Lynn v. Overlook Dev., 328 N.C. 689, 403 S.E.2d 469 (1991).
Local Laws Providing for Performance of Inspections Unconstitutional. - Inspections pursuant to the State Building Code affect health and sanitation, thus acts that altered the legislative directive of this section that the city shall determine who will
perform the inspections under the Code were local legislation that shifted responsibility for enforcement of laws affecting the health of the public and were barred under Art. II,
§
24 of the Constitution. City of New Bern v. New Bern-Craven County Bd. of Educ., 338 N.C. 430, 450 S.E.2d 735 (1994).
Acts Shifting Responsibility for Inspections Created Unreasonable Classification. - No rational basis justified the separation of New Bern from all other cities in North Carolina for special legislative attention regarding the designation of an appropriate
inspection department, and acts which shifted the responsibility for enforcing the building code from New Bern to Craven County created an unreasonable classification and were therefore local acts. City of New Bern v. New Bern-Craven
County Bd. of Educ., 338 N.C. 430, 450 S.E.2d 735 (1994).
Failure of City to Provide Inspection Services. - Section 160A-411 does not mandate that the city and the county must agree regarding the provision of inspection services; rather, it provides the options available to the city in determining who shall
perform the inspections, one of which is arranging for the county to perform them, and if the city fails to provide inspection services via any of the four options, the statute dictates that the Commissioner of Insurance shall
arrange for the provision of the services. The legislature does not need to intervene in the process should the county and the city fail to agree; instead, the legislature has provided that the Commissioner of Insurance shall do
so should the city fail to follow the requirements of the statute. City of New Bern v. New Bern-Craven County Bd. of Educ., 338 N.C. 430, 450 S.E.2d 735 (1994).
Failure of City and County to Agree on Provision of Inspection Services. - This section does not mandate that the city and the county must agree regarding the provision of inspection services; rather, it provides the options available to the city in determining
who shall perform the inspections, one of which is arranging for the county to perform them, and if the city fails to provide inspection services via any of the four options, the statute dictates that the Commissioner of Insurance
shall arrange for the provision of the services. The legislature does not need to intervene in the process should the county and the city fail to agree; instead, the legislature has provided that the Commissioner of Insurance shall
do so should the city fail to follow the requirements of the statute. City of New Bern v. New Bern-Craven County Bd. of Educ., 338 N.C. 430, 450 S.E.2d 735 (1994).
Liability of Building Inspector. - The chief building inspector of the city of Wilmington was a "public official" of the city, who was engaged in the performance of governmental duties involving the exercise of judgment and discretion in determining whether plaintiffs' greenhouses were constructed in compliance with the applicable law; therefore, he could not be liable to plaintiffs in an action based on his inspection of plaintiffs' greenhouses where there was neither sufficient allegation nor forecast of evidence that he acted maliciously or corruptly or outside of and beyond the scope of his duties, and summary judgment dismissing the action as to him was proper. Pigott v. City of Wilmington, 50 N.C. App. 401, 273 S.E.2d 752, cert. denied, 303 N.C. 181, 280 S.E.2d 453 (1981).
While this Part and N.C. Building Code G.S. 105 imposed a duty on the part of the city and its building inspectors to properly carry out enumerated enforcement powers, such powers fell within the city's statutory police powers, and consequently, the duty owed was not to the plaintiffs, individually, but to the general public; there being no duty owed to plaintiffs, their allegations charging city building inspector with negligence clearly did not state a claim upon which relief could be granted. Lynn v. Overlook Dev., 98 N.C. App. 75, 389 S.E.2d 609 (1990).
The trial court did not err in dismissing plaintiffs' complaint in that, as a matter of law, the acts or omissions of a city building inspector did not cause the damages of which plaintiffs complained, that is, their purchase of a house that was unfit for habitation. Lynn v. Overlook Dev., 328 N.C. 689, 403 S.E.2d 469 (1991).
Building inspector who was not the chief building inspector was a public official. His position was created by statute, in that position he exercised a portion of the sovereign power delegated to him, through the county, by statute, and work in his official
capacity required that he exercise discretion. McCoy v. Coker, 174 N.C. App. 311, 620 S.E.2d 691 (2005).
Special Duty Exception. - To bring themselves within the special duty exception to the public duty doctrine, plaintiffs must show that an actual promise was made to create the special duty, the promise was reasonably relied upon by plaintiffs, and that the plaintiffs' injury was causally related to such reliance. Sinning v. Clark, 119 N.C. App. 515, 459 S.E.2d 71 (1995), overruled as stated in Multiple Claimants v. N.C. HHS, Div. of Facility Detention Srvs., 176 N.C. App. 278, 626 S.E.2d 666 (2006) (as to the application of the Public Duty doctrine to negligent inspection claims not involving law enforcement departments).
The provisions of G.S. 160A-411 et seq. and the North Carolina State Building Code did not create a special duty owed by defendants to plaintiffs over and above the duty owed to the general public; thus, the allegations of plaintiffs' complaint were insufficient
to state a claim for relief for negligence. Sinning v. Clark, 119 N.C. App. 515, 459 S.E.2d 71 (1995), overruled as stated in Multiple Claimants v. N.C. HHS, Div. of Facility
Detention Srvs., 176 N.C. App. 278, 626 S.E.2d 666 (2006) (as to the application of the Public Duty doctrine to negligent inspection claims not involving law enforcement departments).
Exception Not Shown. - Dismissal of plaintiffs' negligence action against building inspector and county was proper where plaintiff homeowners did not fall within either exception to the public duty doctrine as they did not show a special relationship
or special duty between themselves and the defendants. Moseley v. L & L Constr., Inc., 123 N.C. App. 79, 472 S.E.2d 172 (1996).
§ 160D-1103. Qualifications of inspectors.
No local government shall employ an inspector to enforce the State Building Code who does not have one of the following types of certificates issued by the North Carolina Code Officials Qualification Board attesting to the inspector's qualifications to hold such position: (i) a probationary certificate, (ii) a standard certificate, or (iii) a limited certificate which shall be valid only as an authorization to continue in the position held on the date specified in G.S. 143-151.13(c) and which shall become invalid if the inspector does not successfully complete in-service training specified by the Qualification Board within the period specified in G.S. 143-151.13(c). An inspector holding one of the above certificates can be promoted to a position requiring a higher level certificate only upon issuance by the Board of a standard certificate or probationary certificate appropriate for such new position.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1104. Duties and responsibilities.
-
The duties and responsibilities of an inspection department and of the inspectors in it are to enforce within their planning and development regulation jurisdiction State and local laws relating to the following:
- The construction of buildings and other structures.
- The installation of such facilities as plumbing systems, electrical systems, heating systems, refrigeration systems, and air-conditioning systems.
- The maintenance of buildings and other structures in a safe, sanitary, and healthful condition.
- Other matters that may be specified by the governing board.
- The duties and responsibilities set forth in subsection (a) of this section include the receipt of applications for permits and the issuance or denial of permits, the making of any necessary inspections in a timely manner, the issuance or denial of certificates of compliance, the issuance of orders to correct violations, the bringing of judicial actions against actual or threatened violations, the keeping of adequate records, and any other actions that may be required in order adequately to enforce those laws. The governing board has the authority to enact reasonable and appropriate provisions governing the enforcement of those laws.
- In performing the specific inspections required by the North Carolina Building Code, the inspector shall conduct all inspections requested by the permit holder for each scheduled inspection. For each requested inspection, the inspector shall inform the permit holder of instances in which the work inspected fails to meet the requirements of the North Carolina Residential Code for One- and Two-Family Dwellings or the North Carolina Building Code.
- Except as provided in G.S. 160D-1117 and G.S. 160D-1207, a local government may not adopt or enforce a local ordinance or resolution or any other policy that requires regular, routine inspections of buildings or structures constructed in compliance with the North Carolina Residential Code for One- and Two-Family Dwellings in addition to the specific inspections required by the North Carolina Building Code without first obtaining approval from the North Carolina Building Code Council. The North Carolina Building Code Council shall review all applications for additional inspections requested by a local government and shall, in a reasonable manner, approve or disapprove the additional inspections. This subsection does not limit the authority of the local government to require inspections upon unforeseen or unique circumstances that require immediate action. In performing the specific inspections required by the North Carolina Residential Building Code, the inspector shall conduct all inspections requested by the permit holder for each scheduled inspection. For each requested inspection, the inspector shall inform the permit holder of instances in which the work inspected is incomplete or otherwise fails to meet the requirements of the North Carolina Residential Code for One- and Two-Family Dwellings or the North Carolina Building Code. When a subsequent inspection is conducted to verify completion or correction of instances of Code noncompliance, any additional violations of the Code noted by the inspector on items already approved by the inspections department may delay the issuance of a temporary certificate of occupancy, but the inspections department shall not charge a fee for reinspection of those items.
-
Each inspection department shall implement a process for an informal internal review of inspection decisions made by the department's inspectors. This process shall include, at a minimum, the following:
- Initial review by the supervisor of the inspector.
- The provision in or with each permit issued by the department of (i) the name, phone number, and e-mail address of the supervisor of each inspector and (ii) a notice of availability of the informal internal review process.
- Procedures the department must follow when a permit holder or applicant requests an internal review of an inspector's decision.
- (Expires October 1, 2021 - see note) If a specific building framing inspection as required by the North Carolina Residential Code for One- and Two-Family Dwellings results in 15 or more separate violations of that Code, the inspector shall forward a copy of the inspection report to the Department of Insurance.
Nothing in this subsection limits or abrogates any rights available under Chapter 150B of the General Statutes to a permit holder or applicant.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 28(a), (b), 51(a), (b), (d); 2021-117, s. 12.5(b); 2021-121, s. 4(a).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Session Laws 2021-121, s. 4(b), made the last sentence of subsection (d), as added by Session Laws 2021-121, s. 4(a), effective August 30, 2021, and applicable to inspections conducted on or after that date.
Effect of Amendments. - Session Laws 2020-25, s. 28(a), effective June 19, 2020, substituted "governing board has" for "city council shall have" in the last sentence of subsection (b); substituted "G.S. 160D-1117" for "G.S. 160D-1115" in the first sentence of subsection (d); and made minor stylistic changes throughout.
Session Laws 2021-117, s. 12.5(b), effective August 23, 2021, in subsections (c) and (d), substituted "scheduled inspection" for "scheduled inspection visit."
Session Laws 2021-121, s. 4(a), added the last sentence of subsection (d). For effective date and applicability, see editor's note.
Legal Periodicals. - For note, "Municipal Liability for Negligent Inspections in Sinning v. Clark - A 'Hollow' Victory for the Public Duty Doctrine," see 18 Campbell L. Rev. 241 (1996).
CASE NOTES
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 160A-412, and prior law.
Justiciability. - Child's suit alleging that a city was negligent in performing its inspection duties under G.S. 160A-412, causing the child to sustain injuries in a fire that may have ignited due to dangling stove wires, was not a nonjusticiable political
question. Worthy v. Ivy Cmty. Ctr., Inc., 198 N.C. App. 513, 679 S.E.2d 885, review denied, 363 N.C. 748, 689 S.E.2d 874 (2009).
Plaintiff stated a claim for mandamus to compel town and zoning administrator to scrutinize alleged violations of zoning ordinance by alleging that zoning administrator failed to enforce the ordinance; plaintiff's request that the alleged violations be
corrected, the fact that she was an adjacent property owner subject to the same zoning restrictions, and the fact that she alleged special damages were sufficient to assert her legal right to enforcement of the ordinance. Midgette
v. Pate, 94 N.C. App. 498, 380 S.E.2d 572 (1989).
Public Duty Doctrine. - Child's suit alleging that a city was negligent in performing its inspection duties under G.S. 160A-412, causing the child to sustain injuries in a fire that may have ignited due to dangling stove wires, was not barred under the
public duty doctrine. Worthy v. Ivy Cmty. Ctr., Inc., 198 N.C. App. 513, 679 S.E.2d 885, review denied, 363 N.C. 748, 689 S.E.2d 874 (2009).
§ 160D-1104.1. Remote inspection alternative.
An inspection department shall implement remote inspection procedures in accordance with criteria and procedures developed pursuant to G.S. 143-139(b)(3). An inspection department must provide the option to elect remote inspections for a project to a building permit applicant. An inspection department must specify the extent to which a project is eligible for remote inspections at the time of building permit issuance.
History
(2021-117, s. 12.5(c).)
Editor's Note. - Session Laws 2021-117, s. 12.5(d), made this section, as enacted by Session Laws 2021-117, s. 12.5(c), effective January 1, 2022, and applicable to permit applications filed on or after that date.
§ 160D-1105. Other arrangements for inspections.
A local government may contract with an individual who is not a local government employee but who holds one of the applicable certificates as provided in G.S. 160D-1103 or with the employer of an individual who holds one of the applicable certificates as provided in G.S. 160D-1103.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1106. Alternate inspection method for component or element.
-
Notwithstanding the requirements of this Article, a local government shall accept and approve, without further responsibility to inspect, a design or other proposal for a component or element in the construction of buildings from an architect licensed
under Chapter 83A of the General Statutes or professional engineer licensed under Chapter 89C of the General Statutes provided all of the following apply:
- When required by the North Carolina State Building Code, the submission design or other proposal is completed under valid seal of the licensed architect or licensed professional engineer.
- Field inspection of the installation or completion of a component or element of the building is performed by a licensed architect or licensed professional engineer or a person under the direct supervisory control of the licensed architect or licensed professional engineer.
-
The licensed architect or licensed professional engineer under subdivision (2) of this subsection provides the local government with a signed written document certifying that the component or element of the building inspected under subdivision (2) of
this subsection is in compliance with the North Carolina State Building Code or the North Carolina Residential Code for One- and Two-Family Dwellings. The certification required under this subdivision shall be provided
by electronic or physical delivery, [and] its receipt shall be promptly acknowledged by the local government through reciprocal means. The certification shall be made on a form created by the North Carolina Building Code
Council which shall include at least the following:
- Permit number.
- Date of inspection.
- Type of inspection.
- Contractor's name and license number.
- Street address of the job location.
- Name, address, and telephone number of the person responsible for the inspection.
- In accepting certifications of inspections under subsection (a) of this section, a local government shall not require information other than that specified in this section.
- Upon the acceptance and approval receipt of a signed written document by the local government as required under subsection (a) of this section, notwithstanding the issuance of a certificate of occupancy, the local government, its inspection department, and the inspectors are discharged and released from any liabilities, duties, and responsibilities imposed by this Article with respect to or in common law from any claim arising out of or attributed to the component or element in the construction of the building for which the signed written document was submitted.
- With the exception of the requirements contained in subsection (a) of this section, no further certification by a licensed architect or licensed professional engineer is required for any component or element designed and sealed by a licensed architect or licensed professional engineer for the manufacturer of the component or element under the North Carolina State Building Code or the North Carolina Residential Code for One- and Two-Family Dwellings.
-
As used in this section, the following definitions apply:
- Component. - Any assembly, subassembly, or combination of elements designed to be combined with other components to form part of a building or structure. Examples of a component include an excavated footing trench containing no concrete, a foundation, and a prepared underslab with slab-related materials without concrete. The term does not include a system.
- Element. - A combination of products designed to be combined with other elements to form all or part of a building component. The term does not include a system.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 29, 51(a), (b), (d); 2020-74, s. 31.)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 29, amended this section in the coded bill drafting format provided by G.S. 120-20.1. In subdivision (a)(3), Session Laws 2020-25, s. 29 failed to underline the word "and" following "physical delivery" in the second sentence. Subdivision (a)(3) has been set out in the form above, with the bracketed word "[and]" inserted at the direction of the Revisor of Statutes.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 29, effective June 19, 2020, substituted "local government" for "city" in the introductory language of subsection (a); rewrote subdivision (a)(3); and added subsection (a1); substituted "local government" for "city" twice in subsection (b); and added "a foundation, and a prepared underslab with slab-related materials without concrete" at the end of the first sentence in subdivision (d)(1); and made minor stylistic changes.
Session Laws 2020-74, s. 31, effective July 1, 2020, added "When required by the North Carolina State Building Code" at the beginning of subdivision (a)(1).
§ 160D-1107. Mutual aid contracts.
- Any two or more cities or counties may enter into contracts with each other to provide mutual aid and assistance in the administration and enforcement of State and local laws pertaining to the North Carolina State Building Code. Mutual aid contracts may include provisions addressing the scope of aid provided, for reimbursement or indemnification of the aiding party for loss or damage incurred by giving aid, for delegating authority to a designated official or employee to request aid or to send aid upon request, and any other provisions not inconsistent with law.
- Unless the mutual aid contract says otherwise, while working with the requesting city or county under the authority of this section, a Code-enforcement official shall have the same jurisdiction, powers, rights, privileges, and immunities, including those relating to the defense of civil actions and payment of judgments, as the Code-enforcement officials of the requesting agency.
- Nothing in this section shall be construed to deprive any party to a mutual aid contract under this section of its discretion to send or decline to provide aid to another party to the contract under any circumstances, whether or not obligated by the contract to do so. In no case shall a party to a mutual aid contract or any of its officials or employees be held to answer in any civil or criminal action for declining to send aid whether or not obligated by contract to do so.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1108. Conflicts of interest.
Staff members, agents, or contractors responsible for building inspections shall comply with G.S. 160D-109(c). No member of an inspection department shall be financially interested or employed by a business that is financially interested in the furnishing of labor, material, or appliances for the construction, alteration, or maintenance of any building within the local government's planning and development regulation jurisdiction or any part or system thereof, or in the making of plans or specifications therefor, unless he is the owner of the building. No member of an inspection department or other individual or an employee of a company contracting with a local government to conduct building inspections shall engage in any work that is inconsistent with his or her duties or with the interest of the local government, as determined by the local government. The local government must find a conflict of interest if any of the following is the case:
- If the individual, company, or employee of a company contracting to perform building inspections for the local government has worked for the owner, developer, contractor, or project manager of the project to be inspected within the last two years.
- If the individual, company, or employee of a company contracting to perform building inspections for the local government is closely related to the owner, developer, contractor, or project manager of the project to be inspected.
- If the individual, company, or employee of a company contracting to perform building inspections for the local government has a financial or business interest in the project to be inspected.
The provisions of this section do not apply to a firefighter whose primary duties are fire suppression and rescue but who engages in some fire inspection activities as a secondary responsibility of the firefighter's employment as a firefighter, except no firefighter may inspect any work actually done, or materials or appliances supplied, by the firefighter or the firefighter's business within the preceding six years.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Opinions of Attorney General
Editor's Note. - The opinion below was rendered under former G.S. 160A-415, or prior law.
Inspector Prohibited from Furnishing Labor and Materials Within City. - This section prohibits a plumbing and mechanical inspector from furnishing labor and materials for installation and repair of garage doors and electric door openers within city's jurisdiction. See opinion of Attorney General to Mr. David A. Holec, Lumberton City Attorney, 51 N.C.A.G. 7 (1981).
§ 160D-1109. Failure to perform duties.
- If any member of an inspection department shall willfully fail to perform the duties required by law, or willfully shall improperly issue a building permit, or shall give a certificate of compliance without first making the inspections required by law, or willfully shall improperly give a certificate of compliance, the member shall be guilty of a Class 1 misdemeanor.
- A member of the inspection department shall not be in violation of this section when the local government, its inspection department, or one of the inspectors accepted a signed written document of compliance with the North Carolina State Building Code or the North Carolina Residential Code for One- and Two-Family Dwellings from a licensed architect or licensed engineer in accordance with G.S. 160D-1104(d).
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1110. Building permits.
-
Except as provided in subsection (c) of this section, no person shall commence or proceed with any of the following without first securing all permits required by the State Building Code and any other State or local laws applicable to any of the following
activities:
- The construction, reconstruction, alteration, repair, movement to another site, removal, or demolition of any building or structure.
- The installation, extension, or general repair of any plumbing system except that in any one- or two-family dwelling unit a permit is not required for the connection of a water heater that is being replaced if (i) the work is performed by a person licensed under G.S. 87-21 who personally examines the work at completion and ensures that a leak test has been performed on the gas piping, and (ii) the energy use rate or thermal input is not greater than that of the water heater that is being replaced, there is no change in fuel, energy source, location, capacity, or routing or sizing of venting and piping, and the replacement is installed in accordance with the current edition of the State Building Code.
- The installation, extension, alteration, or general repair of any heating or cooling equipment system.
-
The installation, extension, alteration, or general repair of any electrical wiring, devices, appliances, or equipment, except that in any one- or two-family dwelling unit a permit is not required for repair or replacement of electrical lighting fixtures
or devices, such as receptacles and lighting switches, or for the connection of an existing branch circuit to an electric water heater that is being replaced if all of the following requirements are met:
- With respect to electric water heaters, the replacement water heater is placed in the same location and is of the same or less capacity and electrical rating as the original.
- With respect to electrical lighting fixtures and devices, the replacement is with a fixture or device having the same voltage and the same or less amperage.
- The work is performed by a person licensed under G.S. 87-43.
- The repair or replacement installation meets the current edition of the State Building Code, including the State Electrical Code.
- A building permit shall be in writing and shall contain a provision that the work done shall comply with the North Carolina State Building Code and all other applicable State and local laws. Nothing in this section requires a local government to review and approve residential building plans submitted to the local government pursuant to the North Carolina Residential Code, provided that the local government may review and approve the residential building plans as it deems necessary. If a local government chooses to review residential building plans for any structures subject to regulation under the North Carolina Residential Code for One- and Two-Family Dwellings, all initial reviews for the building permit must be performed within 15 business days of submission of the plans. A local government shall not require residential building plans for one- and two-family dwellings to be sealed by a licensed engineer or licensed architect unless required by the North Carolina State Building Code. No building permits shall be issued unless the plans and specifications are identified by the name and address of the author thereof, and, if the General Statutes of North Carolina require that plans for certain types of work be prepared only by a licensed architect or licensed engineer, no building permit shall be issued unless the plans and specifications bear the North Carolina seal of a licensed architect or of a licensed engineer. When any provision of the General Statutes of North Carolina or of any ordinance or development or zoning regulation requires that work be done by a licensed specialty contractor of any kind, no building permit for the work shall be issued unless the work is to be performed by such a duly licensed contractor.
-
No permit issued under Article 9 or 9C of Chapter 143 of the General Statutes is required for any construction, installation, repair, replacement, or alteration performed in accordance with the current edition of the North Carolina State Building Code
costing fifteen thousand dollars ($15,000) or less in any single-family residence or farm building unless the work involves any of the following:
- The addition, repair, or replacement of load-bearing structures. However, no permit is required for replacement of windows, doors, exterior siding, or the pickets, railings, stair treads, and decking of porches and exterior decks.
- The addition or change in the design of plumbing. However, no permit is required for replacements otherwise meeting the requirements of this subsection that do not change size or capacity.
- The addition, replacement, or change in the design of heating, air-conditioning, or electrical wiring, devices, appliances, or equipment, other than like-kind replacement of electrical devices and lighting fixtures.
- The use of materials not permitted by the North Carolina Residential Code for One- and Two-Family Dwellings.
- The addition (excluding replacement) of roofing.
- A local government shall not require more than one building permit for the complete installation or replacement of any natural gas, propane gas, or electrical appliance on an existing structure when the installation or replacement is performed by a person licensed under G.S. 87-21 or G.S. 87-43. The cost of the building permit for such work shall not exceed the cost of any one individual trade permit issued by that local government, nor shall the local government increase the costs of any fees to offset the loss of revenue caused by this provision.
- No building permit shall be issued pursuant to subsection (a) of this section for any land-disturbing activity, as defined in G.S. 113A-52(6), or for any activity covered by G.S. 113A-57, unless an erosion and sedimentation control plan for the site of the activity or a tract of land including the site of the activity has been approved under the Sedimentation Pollution Control Act.
- No building permit shall be issued pursuant to subsection (a) of this section for any land-disturbing activity that is subject to, but does not comply with, the requirements of G.S. 113A-71.
- No building permit shall be issued pursuant to subdivision (1) of subsection (a) of this section where the cost of the work is thirty thousand dollars ($30,000) or more, other than for improvements to an existing single-family residential dwelling unit as defined in G.S. 87-15.5(7) that the owner occupies as a residence, or for the addition of an accessory building or accessory structure as defined in the North Carolina Uniform Residential Building Code, the use of which is incidental to that residential dwelling unit, unless the name, physical and mailing address, telephone number, facsimile number, and electronic mail address of the lien agent designated by the owner pursuant to G.S. 44A-11.1(a) is conspicuously set forth in the permit or in an attachment thereto. The building permit may contain the lien agent's electronic mail address. The lien agent information for each permit issued pursuant to this subsection shall be maintained by the inspection department in the same manner and in the same location in which it maintains its record of building permits issued. Where the improvements to a real property leasehold are limited to the purchase, transportation, and setup of a manufactured home, as defined in G.S. 143-143.9(6), the purchase price of the manufactured home shall be excluded in determining whether the cost of the work is thirty thousand dollars ($30,000) or more.
- No local government may withhold a building permit or certificate of occupancy that otherwise would be eligible to be issued under this section to compel, with respect to another property or parcel, completion of work for a separate permit or compliance with land-use regulations under this Chapter unless otherwise authorized by law or unless the local government reasonably determines the existence of a public safety issue directly related to the issuance of a building permit or certificate of occupancy.
- Violation of this section constitutes a Class 1 misdemeanor.
However, a building permit is not required for the installation, maintenance, or replacement of any load control device or equipment by an electric power supplier, as defined in G.S. 62-133.8, or an electrical contractor contracted by the electric power supplier, so long as the work is subject to supervision by an electrical contractor licensed under Article 4 of Chapter 87 of the General Statutes. The electric power supplier shall provide such installation, maintenance, or replacement in accordance with (i) an activity or program ordered, authorized, or approved by the North Carolina Utilities Commission pursuant to G.S. 62-133.8 or G.S. 62-133.9 or (ii) a similar program undertaken by a municipal electric service provider, whether the installation, modification, or replacement is made before or after the point of delivery of electric service to the customer. The exemption under this subsection applies to all existing installations.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 30, 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 30, effective June 19, 2020, in subsection (b), added "North Carolina" in the first sentence, added the second and third sentences, and added "or development or zoning regulation" in the last sentence; and made minor stylistic changes throughout.
CASE NOTES
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 160A-417, and prior law.
As to necessity for owner to obtain a permit before constructing or repairing a building under former statutory provisions, see State v. Eubanks, 154 N.C. 628, 70 S.E. 466 (1911); Warner v. W &
O, Inc., 263 N.C. 37, 138 S.E.2d 782 (1964).
Effect of Issuance of Permit on Owner's Rights. - If a property owner, in good faith, makes expenditures in reliance on a building permit issued to him, his right to construct the building will be protected as an existing use upon later amendment of the
municipal zoning regulations; however, the mere issuance of a building permit alone creates no property right in him, and he may not remain inactive and thereby deny the municipality the right to make needed changes in its ordinances.
Warner v. W & O, Inc., 263 N.C. 37, 138 S.E.2d 782 (1964).
Mandamus Held Proper Remedy. - Where a city, under an ordinance, with legislative authority in such matters, issued a permit to build an additional room to a residence, but thereafter recalled the permit pending the settlement of a dispute as to whether
it would be situated upon an alley claimed to have been widened, upon the finding by the jury that the alley had not been widened and that the room would not be thereon, mandamus was the proper remedy, though the form of the issue
was incorrect. Clinard v. City of Winston-Salem, 173 N.C. 356, 91 S.E. 1039 (1917).
Ordinance Held Void for Lack of Uniformity. - City ordinance providing that no person should erect within the city limits any house or building of any kind, or add to, improve or change any building, without first obtaining permission from the board of
aldermen, was void, for the reason that it did not prescribe a uniform rule of action for governing the exercises of the discretion of the aldermen, but on the contrary, left the rights of property subject to their arbitrary discretion.
State v. Tenant, 110 N.C. 609, 14 S.E. 387 (1892).
Negligence Actionable Only if Proximate Cause of Injury. - Although the violation of a statute which imposes a duty upon the city building inspector in order to promote the safety of the public, including the plaintiffs, may be negligence per se, such
negligence is actionable only if it is the proximate cause of injury to the plaintiff. Lynn v. Overlook Dev., 328 N.C. 689, 403 S.E.2d 469 (1991).
Permit issued to respondent was not a building permit under G.S. 160A-385(b) although the zoning administrator stated that the permit that was issued to respondent was the equivalent of a building permit where the permit did not contain the compliance
provision required by this section and in the notice sent to adjoining property owners, the zoning administrator referred to respondent's permit as a "zoning permit." Simpson v. City of Charlotte,
115 N.C. App. 51, 443 S.E.2d 772 (1994).
§ 160D-1111. Expiration of building permits.
A building permit issued pursuant to this Article expires by limitation six months, or any lesser time fixed by ordinance, after the date of issuance if the work authorized by the permit has not been commenced. If, after commencement, the work is discontinued for a period of 12 months, the permit shall immediately expire. No work authorized by any building permit that has expired shall be performed until a new permit has been secured.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d); 2021-88, s. 1(g).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2021-88, s. 1(g), effective July 22, 2021, substituted "expires by limitation six months, or any lesser time fixed by ordinance” for "shall expire by limitation six months, or any lesser time fixed by ordinance of the city council,” and deleted "therefor" preceding "shall immediately" and "thereafter" preceding "be performed".
CASE NOTES
Editor's Note. - The case cited under this section was decided under former G.S. 153A-358.
Tolling. - Plaintiffs had a valid building permit because their appeal of the order that prevented them from building tolled the statutory time period in which plaintiffs could resume construction under their office building permit; however, the building
permit only authorized the construction of an office building it did not establish a statutory vested right to mine the property. Sandy Mush Props. v. Rutherford County, 181 N.C. App. 224, 638 S.E.2d 557 (2007), petition allowed as to additional issues, 361 N.C. 569, 689 S.E.2d 874, 2007 N.C. LEXIS 958 (2007).
§ 160D-1112. Changes in work.
After a building permit has been issued, no changes or deviations from the terms of the application, plans and specifications, or the permit, except where changes or deviations are clearly permissible under the State Building Code, shall be made until specific written approval of proposed changes or deviations has been obtained from the inspection department.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1113. Inspections of work in progress.
Subject to the limitation imposed by G.S. 160D-1104(d), as the work pursuant to a building permit progresses, local inspectors shall make as many inspections thereof as may be necessary to satisfy them that the work is being done according to the provisions
of any applicable State and local laws and of the terms of the permit. In exercising this power, members of the inspection department have a right to enter on any premises within the jurisdiction of the department at all reasonable
hours for the purposes of inspection or other enforcement action, upon presentation of proper credentials. If a building permit has been obtained by an owner exempt from licensure under G.S. 87-1(b)(2), no inspection shall be conducted
without the owner being present, unless the plans for the building were drawn and sealed by an architect licensed pursuant to Chapter 83A of the General Statutes.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 31, 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 31, effective June 19, 2020, substituted "G.S. 160D-1104(d)" for "G.S. 160D-1104(b)" in the first sentence and deleted "shall" preceding "have" in the second sentence.
CASE NOTES
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 160A-420, and prior law.
Inspector's Negligence Actionable Only If Proximate Cause of Injury. - Although the violation of a statute which imposes a duty upon the city building inspector in order to promote the safety of the public, including the plaintiffs, may be negligence
per se, such negligence is actionable only if it is the proximate cause of injury to the plaintiff. Lynn v. Overlook Dev., 328 N.C. 689, 403 S.E.2d 469 (1991).
Notice of Necessary Inspections Required. - This section only requires that the building inspector make inspections of work in progress when "necessary." This section and the Building Code contemplate that the permit holder or his agent will notify the
inspection department that the work for the necessary inspections is ready, and where plaintiffs have not alleged that the city building inspector was notified or that he failed to make any "necessary" inspections, plaintiffs'
allegations did not state a claim upon which relief can be granted. Lynn v. Overlook Dev., 328 N.C. 689, 403 S.E.2d 469 (1991).
§ 160D-1114. Appeals of stop orders.
-
The owner or builder may appeal from a stop order involving alleged violation of the State Building Code or any approved local modification thereof to the North Carolina Commissioner of Insurance or his designee within a period of five days after the
order is issued. Notice of appeal shall be given in writing to the Commissioner of Insurance or his designee, with a copy to the local inspector. The Commissioner of Insurance or his or her designee shall promptly conduct an investigation,
and the appellant and the inspector shall be permitted to submit relevant evidence. The Commissioner of Insurance or his or her designee shall as expeditiously as possible provide a written statement of the decision setting forth
the facts found, the decision reached, and the reasons for the decision. Pending the ruling by the Commissioner of Insurance or his or her designee on an appeal, no further work shall take place in violation of a stop order. In
the event of dissatisfaction with the decision, the person affected shall have the following options:
- Appealing to the Building Code Council.
- Appealing to the superior court as provided in G.S. 143-141.
- The owner or builder may appeal from a stop order involving alleged violation of a local development regulation as provided in G.S. 160D-405.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1115. Revocation of building permits.
The appropriate inspector may revoke and require the return of any building permit by notifying the permit holder in writing stating the reason for the revocation. Building permits shall be revoked for any substantial departure from the approved application, plans, or specifications; for refusal or failure to comply with the requirements of any applicable State or local laws; or for false statements or misrepresentations made in securing the permit. Any building permit mistakenly issued in violation of an applicable State or local law may also be revoked.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
CASE NOTES
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 153A-362, former G.S. 160A-422, and prior law.
Revocation of Building Permit Because of Zoning Ordinance. - County board of adjustment had the authority to revoke two building permits that had been issued where the building permits were for the construction of two billboards that were in violation
of a county zoning ordinance that did not permit construction of the billboards in the area zoned for agricultural use. E. Outdoor, Inc. v. Bd. of Adjustment, 150 N.C. App. 516,
564 S.E.2d 78 (2002), appeal dismissed, 356 N.C. 670, 577 S.E.2d 116 (2003), aff'd sub nom. Eastern Outdoor, Inc. v. Bd. of Adjustment, 357 N.C. 501, 586 S.E.2d 90 (2003).
Invalid Permit. - Lessee's building permit was void because its sign permit had expired before the lessee renewed its building permit, and it could not validly renew its building permit under the express terms of Bessemer City, N.C. Zoning Ordinance
§
155.163l; the proper way to revoke a building permit, even a permit issued in violation of a state or local law, is by following the statutory revocation procedure of G.S. 160A-422. Morris Communs. Corp. v. City of Bessemer
City Zoning Bd. of Adjustment, 202 N.C. App. 631, 689 S.E.2d 880 (2010), review granted in part and review denied in part, 364 N.C. 321, 701 S.E.2d 668, 2010 N.C. LEXIS
801 (2010).
Opinions of Attorney General
Editor's Note. - The opinion below was rendered under former G.S. 153A-362, or prior law.
Failure to Obtain Air Quality Permit Prior to Undertaking Construction Activities. - This section did not require a county inspections department to revoke a building permit issued for the construction of an asphalt plant where the permittee failed to obtain an air quality permit from the Division of Air Quality prior to undertaking some construction activities at the facility site. See opinion of Attorney General to Grover Sawyer, Deputy Commissioner, Chief Engineer, North Carolina Department of Insurance, 2001 N.C. AG LEXIS 18 (5/22/2001).
§ 160D-1116. Certificates of compliance; temporary certificates of occupancy.
- At the conclusion of all work done under a building permit, the appropriate inspector shall make a final inspection, and, if the completed work complies with all applicable State and local laws and with the terms of the permit, the inspector shall issue a certificate of compliance. Except as provided by subsection (b) of this section, no new building or part thereof may be occupied, no addition or enlargement of an existing building may be occupied, and no existing building that has been altered or moved may be occupied, until the inspection department has issued a certificate of compliance.
- A temporary certificate of occupancy may be issued permitting occupancy for a stated period of time of either the entire building or of specified portions of the building if the inspector finds that the building may safely be occupied prior to its final completion. A permit holder may request and be issued a temporary certificate of occupancy if the conditions and requirements of the North Carolina State Building Code are met.
- Any person who owns, leases, or controls a building and occupies or allows the occupancy of the building or a part of the building before a certificate of compliance or temporary certificate of occupancy has been issued pursuant to subsection (a) or (b) of this section is guilty of a Class 1 misdemeanor.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 32, 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Session Laws 2021-3, s. 2.7(a), (b), provides: "(a) Notwithstanding G.S. 136-18(5), 136-18(29), 136-93, 160D-1116, and any other provision of law to the contrary, a local government shall issue a temporary certificate of compliance and temporary certificate of occupancy to a health service facility (facility) allowing for the full operational use of the facility in the following circumstances:
"(1) The facility building is currently under construction, and the scheduled construction completion date for the building will occur before recission of the COVID-19 emergency declaration.
"(2) Subject to subdivision (3) of this section, the facility building complies with all applicable State and local laws and the terms of the building permit, and the facility building may be safely occupied.
"(3) The only portions of the construction project remaining to be completed are off-site improvements to public roadways that were identified by the Traffic Impact Analysis for the project and required as conditions for the approval of the permit, and the facility agrees to (i) complete the roadway improvements within 18 months of the date of the certificate of occupancy and (ii) post a corresponding performance bond or letter of credit. The performance bond completion date and letter of credit expiration date, and all other terms of both instruments, shall remain in force notwithstanding the recission of the COVID-19 emergency declaration prior to the completion of the roadway improvements.
"For purposes of this section, the term "local government" has the same meaning as in G.S. 160D-1116, the term "health service facility" has the same meaning as in G.S. 131E-176, and the term "COVID-19 emergency declaration" means Executive Order No. 116 issued March 10, 2020.
"(b) This section is effective when it becomes law and expires upon recission of the COVID-19 emergency declaration or upon completion of the roadway improvements as agreed to by the facility, whichever is later."
Effect of Amendments. - Session Laws 2020-25, s. 32, effective June 19, 2020, rewrote the section.
Legal Periodicals. - For note, "Municipal Liability for Negligent Inspections in Sinning v. Clark - A 'Hollow' Victory for the Public Duty Doctrine," see 18 Campbell L. Rev. 241 (1996).
CASE NOTES
Editor's Note. - The case cited under this section was decided under former G.S. 153A-363, former G.S. 160A-423, and prior law.
Issuance of Certificate of Occupancy Was Date of Substantial Completion for Purposes of Statute of Repose. - Summary judgment for a builder was proper in homeowners' claim for damages arising from alleged construction defects in their home because the
suit was filed more than seven years after the certificate of occupancy was issued, and thus the homeowners were unable to prove that the G.S. 1-50(a)(5)(a) six-year statute of repose was not a bar; the homeowners alleged no act
by the builder after the date of the certificate of occupancy, nor any fraud or willful or wanton negligence in the construction of the home pursuant to G.S. 1-50(a)(5)(e), and, as such, the date of "substantial completion" for
purposes of G.S. 1-50(a)(5)(c) was the date of the certificate of occupancy. Boor v. Spectrum Homes, Inc., 196 N.C. App. 699, 675 S.E.2d 712 (2009).
§ 160D-1117. Periodic inspections.
The inspection department may make periodic inspections, subject to the governing board's directions, for unsafe, unsanitary, or otherwise hazardous and unlawful conditions in buildings or structures within its planning and development regulation jurisdiction. In exercising this power, members of the department shall have a right to enter on any premises within the jurisdiction of the department at all reasonable hours for the purposes of inspection or other enforcement action, upon presentation of proper credentials. Inspections of dwellings shall follow the provisions of G.S. 160D-1207. Nothing in this section shall be construed to prohibit periodic inspections in accordance with State fire prevention code or as otherwise required by State law.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1118. Defects in buildings to be corrected.
When a local inspector finds any defects in a building, or finds that the building has not been constructed in accordance with the applicable State and local laws, or that a building because of its condition is dangerous or contains fire hazardous conditions, it shall be the inspector's duty to notify the owner or occupant of the building of its defects, hazardous conditions, or failure to comply with law. The owner or occupant shall each immediately remedy the defects, hazardous conditions, or violations of law in the property.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
CASE NOTES
Editor's Note. - The case cited under this section was decided under former G.S. 160A-425, or prior law.
Violations of Section Are Negligence Per Se. - Since the obvious purpose of this statute is to protect the lives and limbs of occupants of the buildings affected, and the Legislature has not provided otherwise, violations of it are negligence per se.
Jackson v. Housing Auth., 73 N.C. App. 363, 326 S.E.2d 295 (1985), aff'd, 316 N.C. 259, 341 S.E.2d 523 (1986).
§ 160D-1119. Unsafe buildings condemned.
- Designation of Unsafe Buildings. - Every building that shall appear to the inspector to be especially dangerous to life because of its liability to fire or because of bad condition of walls, overloaded floors, defective construction, decay, unsafe wiring or heating systems, inadequate means of egress, or other causes shall be held to be unsafe, and the inspector shall affix a notice of the dangerous character of the structure to a conspicuous place on the exterior wall of the building.
-
Nonresidential Building or Structure. - In addition to the authority granted in subsection (a) of this section, an inspector may declare a nonresidential building or structure within a community development target area to be unsafe if it meets all of
the following conditions:
- It appears to the inspector to be vacant or abandoned.
- It appears to the inspector to be in such dilapidated condition as to cause or contribute to blight, disease, vagrancy, or fire or safety hazard, to be a danger to children, or to tend to attract persons intent on criminal activities or other activities that would constitute a public nuisance.
- Notice Posted on Structure. - If an inspector declares a nonresidential building or structure to be unsafe under subsection (b) of this section, the inspector must affix a notice of the unsafe character of the structure to a conspicuous place on the exterior wall of the building. For the purposes of this section, the term "community development target area" means an area that has characteristics of an urban progress zone under G.S. 143B-437.09, a "nonresidential redevelopment area" under G.S. 160A-503(10), or an area with similar characteristics designated by the governing board as being in special need of revitalization for the benefit and welfare of its citizens.
- Applicability to Residential Structures. - A local government may expand subsections (b) and (c) of this section to apply to residential buildings by adopting an ordinance. Before adopting such an ordinance, a local government shall hold a legislative hearing with published notice as provided by G.S. 160D-601.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
CASE NOTES
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 160A-426, and prior law.
No Compensation Due for Demolition of Hazardous Building. - Plaintiff was collaterally estopped from seeking compensation for a city's demolition of its building, as the issue in the case - whether building was a fire, health, or safety hazard under G.S.
160A-429 - had been decided adversely to plaintiff in a prior, quasi-judicial administrative hearing, and it had a full and fair opportunity to litigate that issue, but elected not to do so. Hillsboro Partners, LLC v. City of Fayetteville,
226 N.C. App. 30, 738 S.E.2d 819, review denied, 367 N.C. 236, 748 S.E.2d 544, 2013 N.C. LEXIS 1031 (2013).
Demolition of Building Properly Ordered. - Superior court did not err in upholding the decision of a town board of commissioners, which affirmed the demolition of an owner's motel. because the board acted within its statutory authority and after a de
novo hearing; the respective orders of the town building inspector and the board made it clear that the structure was condemned because it was determined to be unsafe, and those orders were proper. Six at 109, LCC v. Town of Holden
Beach, 238 N.C. App. 469, 767 S.E.2d 400 (2014).
§ 160D-1120. Removing notice from condemned building.
If any person shall remove any notice that has been affixed to any building or structure by a local inspector of any local government and that states the dangerous character of the building or structure, that person shall be guilty of a Class 1 misdemeanor.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1121. Action in event of failure to take corrective action.
If the owner of a building or structure that has been condemned as unsafe pursuant to G.S. 160D-1119 fails to take prompt corrective action, the local inspector shall give written notice, by certified mail to the owner's last known address or by personal service, of all of the following:
-
That the building or structure is in a condition that appears to meet one or more of the following conditions:
- Constitutes a fire or safety hazard.
- Is dangerous to life, health, or other property.
- Is likely to cause or contribute to blight, disease, vagrancy, or danger to children.
- Has a tendency to attract persons intent on criminal activities or other activities that would constitute a public nuisance.
- That an administrative hearing will be held before the inspector at a designated place and time, not later than 10 days after the date of the notice, at which time the owner will be entitled to be heard in person or by counsel and to present arguments and evidence pertaining to the matter.
- That following the hearing, the inspector may issue such order to repair, close, vacate, or demolish the building or structure as appears appropriate.
If the name or whereabouts of the owner cannot, after due diligence, be discovered, the notice shall be considered properly and adequately served if a copy is posted on the outside of the building or structure in question at least 10 days prior to the hearing and a notice of the hearing is published in a newspaper having general circulation in the local government's area of jurisdiction at least once not later than one week prior to the hearing.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 33, 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 33, effective June 19, 2020, substituted "G.S. 160D-1119 fails" for "G.S. 160D-1117 shall fail" in the introductory paragraph; and made a minor stylistic change in subdivision (2).
§ 160D-1122. Order to take corrective action.
If, upon a hearing held pursuant to the notice prescribed in G.S. 160D-1119, the inspector shall find that the building or structure is in a condition that constitutes a fire or safety hazard or renders it dangerous to life, health, or other property, the inspector shall make an order in writing, directed to the owner of such building or structure, requiring the owner to remedy the defective conditions by repairing, closing, vacating, or demolishing the building or structure or taking other necessary steps, within such period, not less than 60 days, as the inspector may prescribe, provided that where the inspector finds that there is imminent danger to life or other property, the inspector may order that corrective action be taken in such lesser period as may be feasible.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
CASE NOTES
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 160A-429, and prior law.
Demolition of Building Properly Ordered. - A municipality complied with the procedures set forth in G.S. 160A-424 to 160A-429 prior to ordering the demolition of a building where (1) the municipality's code enforcement official conducted an inspection of the property based on reason to believe the property was in dangerous condition and, upon inspection, found the property to be unsafe and posted notice of the dangerous character of the property, (2) after nearly a full month passed and no corrective action was taken, the official sent the plaintiffs a notice of hearing, (3) the official then held a hearing and determined that the property should be demolished, based on the length of time the property had been in unsafe condition and the unlikelihood that the plaintiffs would actually take sufficient steps to improve the property, and (4) the order was appealed and affirmed after two separate hearings. Coffey v. Town of Waynesville, 143 N.C. App. 624, 547 S.E.2d 132 (2001).
Superior court did not err by determining that the decision of a town board of commissioners to demolish an owner's motel was supported by substantial evidence because the evidence of record received at the hearing before the board showed that storms, erosion, tidal action and/or other natural events materially changed the property upon which the structure was located, those changes and the resulting impact on the structure created a hazard, and the structure attracted criminal activity. Six at 109, LCC v. Town of Holden Beach, 238 N.C. App. 469, 767 S.E.2d 400 (2014).
Superior court did not err in upholding the decision of a town board of commissioners, which affirmed the demolition of an owner's motel. because the board acted within its statutory authority and after a de novo hearing; the respective orders of the
town building inspector and the board made it clear that the structure was condemned because it was determined to be unsafe, and those orders were proper. Six at 109, LCC v. Town of Holden Beach, 238 N.C. App. 469, 767 S.E.2d 400 (2014).
No Compensation Due. - Plaintiff was collaterally estopped from seeking compensation for a city's demolition of its building, as the issue in the case - whether the building was a fire, health, or safety hazard under G.S. 160A-429 - had been decided adversely
to plaintiff in a prior, quasi-judicial administrative hearing, and it had a full and fair opportunity to litigate that issue, but elected not to do so. Hillsboro Partners, LLC v. City of Fayetteville,
226 N.C. App. 30, 738 S.E.2d 819, review denied, 367 N.C. 236, 748 S.E.2d 544, 2013 N.C. LEXIS 1031 (2013).
Standard of Review. - In reviewing a municipality's decision ordering demolition of a building, if the petitioner contends that the decision was based on an error of law, de novo review is the proper standard of review, but if the petitioner contends
the decision was not supported by the evidence or was arbitrary and capricious, then the reviewing court must apply the whole record test. Coffey v. Town of Waynesville, 143 N.C. App. 624, 547 S.E.2d 132 (2001).
Appeal of Interlocutory Order. - Where a city argued that plaintiff was collaterally estopped from filing suit seeking compensation for the city's demolition of its building, as the trial court's denial of the city's motion to dismiss affected a substantial
right, the city was entitled appeal this interlocutory order. Hillsboro Partners, LLC v. City of Fayetteville, 226 N.C. App. 30, 738 S.E.2d 819, review denied, 367 N.C. 236,
748 S.E.2d 544, 2013 N.C. LEXIS 1031 (2013).
§ 160D-1123. Appeal; finality of order if not appealed.
Any owner who has received an order under G.S. 160D-1122 may appeal from the order to the governing board by giving notice of appeal in writing to the inspector and to the local government clerk within 10 days following issuance of the order. In the absence of an appeal, the order of the inspector is final. The governing board shall hear an appeal in accordance with G.S. 160D-406 and render a decision within a reasonable time. The governing board may affirm, modify and affirm, or revoke the order.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 34, 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 34, effective June 19, 2020, substituted "G.S. 160D-1122" for "G.S. 160D-1120" in the first sentence and made minor stylistic changes.
CASE NOTES
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 160A-430, and prior law.
Collateral Estoppel. - Plaintiff was collaterally estopped from seeking just compensation for a city's demolition of its building, as it had been determined in a prior administrative hearing that the building was a fire, health, or safety hazard under
G.S. 160A-429, and plaintiff did not appeal that determination under G.S. 160A-430. Hillsboro Partners, LLC v. City of Fayetteville, 226 N.C. App. 30, 738 S.E.2d 819, review
denied, 367 N.C. 236, 748 S.E.2d 544, 2013 N.C. LEXIS 1031 (2013).
Demolition of Building Properly Ordered. - Superior court did not err in upholding the decision of a town board of commissioners, which affirmed the demolition of an owner's motel. because the board acted within its statutory authority and after a de
novo hearing; the respective orders of the town building inspector and the board made it clear that the structure was condemned because it was determined to be unsafe, and those orders were proper. Six at 109, LCC v. Town of Holden
Beach, 238 N.C. App. 469, 767 S.E.2d 400 (2014).
§ 160D-1124. Failure to comply with order.
If the owner of a building or structure fails to comply with an order issued pursuant to G.S. 160D-1122 from which no appeal has been taken or fails to comply with an order of the governing board following an appeal, the owner is guilty of a Class 1 misdemeanor.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 35, 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 34, effective June 19, 2020, substituted "G.S. 160D-1122" for "G.S. 160D-1120" and made a minor stylistic change.
§ 160D-1125. Enforcement.
- Action Authorized. - Whenever any violation is denominated a misdemeanor under the provisions of this Article, the local government, either in addition to or in lieu of other remedies, may initiate any appropriate action or proceedings to prevent, restrain, correct, or abate the violation or to prevent the occupancy of the building or structure involved.
- Removal of Building. - In the case of a building or structure declared unsafe under G.S. 160D-1119 or an ordinance adopted pursuant to G.S. 160D-1119, a local government may, in lieu of taking action under subsection (a) of this section, cause the building or structure to be removed or demolished. The amounts incurred by the local government in connection with the removal or demolition are a lien against the real property upon which the cost was incurred. The lien shall be filed, have the same priority, and be collected in the same manner as liens for special assessments provided in Article 10 of Chapter 160A of the General Statutes. If the building or structure is removed or demolished by the local government, the local government shall sell the usable materials of the building and any personal property, fixtures, or appurtenances found in or attached to the building. The local government shall credit the proceeds of the sale against the cost of the removal or demolition. Any balance remaining from the sale shall be deposited with the clerk of superior court of the county where the property is located and shall be disbursed by the court to the person found to be entitled thereto by final order or decree of the court.
- Additional Lien. - The amounts incurred by a local government in connection with the removal or demolition are also a lien against any other real property owned by the owner of the building or structure and located within the local government's planning and development regulation jurisdiction, and for cities without extraterritorial planning and development jurisdiction, within one mile of the city limits, except for the owner's primary residence. The provisions of subsection (b) of this section apply to this additional lien, except that this additional lien is inferior to all prior liens and shall be collected as a money judgment.
- Nonexclusive Remedy. - Nothing in this section shall be construed to impair or limit the power of the local government to define and declare nuisances and to cause their removal or abatement by summary proceedings or otherwise.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 36, 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 36, effective June 19, 2020, substituted "G.S. 160D-1119" for "G.S. 160D-1117" twice in the first sentence of subsection (b); substituted "cities" for "municipalities" in subsection (c); and made minor stylistic changes.
§ 160D-1126. Records and reports.
The inspection department shall keep complete and accurate records in convenient form of all applications received, permits issued, inspections and reinspections made, defects found, certificates of compliance or occupancy granted, and all other work and activities of the department. These records shall be kept in the manner and for the periods prescribed by the Department of Natural and Cultural Resources. Periodic reports shall be submitted to the governing board and to the Commissioner of Insurance as they shall by ordinance, rule, or regulation require.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1127. Appeals.
Unless otherwise provided by law, appeals from any order, decision, or determination by a member of a local inspection department pertaining to the State Building Code or other State building laws shall be taken to the Commissioner of Insurance or the Commissioner's designee or other official specified in G.S. 143-139 by filing a written notice with the Commissioner and with the inspection department within a period of 10 days after the order, decision, or determination. Further appeals may be taken to the State Building Code Council or to the courts as provided by law.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1128. Fire limits.
- County Fire Limits. - A county may by ordinance establish and define fire limits in any area within the county and not within a city. The limits may include only business and industrial areas. Within any fire limits, no frame or wooden building or addition thereto may be erected, altered, repaired, or moved, either into the fire limits or from one place to another within the limits, except upon the permit of the inspection department and approval of the Commissioner of Insurance. The governing board may make additional regulations necessary for the prevention, extinguishment, or mitigation of fires within the fire limits.
- Municipal Fire Limits. - The governing board of every incorporated city shall pass one or more ordinances establishing and defining fire limits, which shall include the principal business portions of the city and which shall be known as primary fire limits. In addition, the governing board may, in its discretion, establish and define one or more separate areas within the city as secondary fire limits.
- Restrictions Within Municipal Primary Fire Limits. - Within the primary fire limits of any city, as established and defined by ordinance, no frame or wooden building or structure or addition thereto shall hereafter be erected, altered, repaired, or moved, either into the limits or from one place to another within the limits, except upon the permit of the local inspection department approved by the governing board and by the Commissioner of Insurance or the Commissioner's designee. The governing board may make additional regulations for the prevention, extinguishment, or mitigation of fires within the primary fire limits.
- Restrictions Within Municipal Secondary Fire Limits. - Within any secondary fire limits of any city or town, as established and defined by ordinance, no frame or wooden building or structure or addition thereto shall be erected, altered, repaired, or moved, except in accordance with any rules and regulations established by ordinance of the areas.
- Failure to Establish Municipal Primary Fire Limits. - If the governing board of any city shall fail or refuse to establish and define the primary fire limits of the city as required by law, after having such failure or refusal called to their attention in writing by the State Commissioner of Insurance, the Commissioner shall have the power to establish the limits upon making a determination that they are necessary and in the public interest.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
CASE NOTES
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 160A-435, former G.S. 160A-436, and prior law.
The courts will not pass upon the reasonableness of fire limits established by an incorporated town under authority conferred by the legislature, at least where the limits established appear to be reasonable and without palpable oppression or injustice.
State v. Lawing, 164 N.C. 492, 80 S.E. 69 (1913), decided under former similar provisions.
Liability for Torts of Officers. - A municipality was not immune from liability for the torts of defendant officers to the extent of defendant town's liability insurance. Davis v. Town of Southern Pines, 116 N.C. App. 663, 449 S.E.2d 240 (1994), cert. denied, 339 N.C. 737, 454 S.E.2d 648 (1995).
Reasonableness of Ordinances. - While it might be unreasonable to prohibit even the slightest repairs to wooden buildings standing within the fire limits prior to the passage of a statute or ordinance establishing such limits, the power to prevent repairs
is delegated and presumably exercised for the protection of property; hence, where a wooden structure within the bounds is partially destroyed by fire already, it is not unreasonable to require a new roof to be made of material
less liable to combustion, or to forbid the repairs altogether when the damage to the building is serious, and to that end to compel the owners to give notice to the town authorities of their purpose to repair, and of the character
of the contemplated work. State v. Johnson, 114 N.C. 846, 19 S.E. 599 (1894), decided under former similar provisions.
§ 160D-1129. Regulation authorized as to repair, closing, and demolition of nonresidential buildings or structures; order of public officer.
- Authority. - The governing board of the local government may adopt and enforce regulations relating to nonresidential buildings or structures that fail to meet minimum standards of maintenance, sanitation, and safety established by the governing board. The minimum standards shall address only conditions that are dangerous and injurious to public health, safety, and welfare and identify circumstances under which a public necessity exists for the repair, closing, or demolition of such buildings or structures. The regulations shall provide for designation or appointment of a public officer to exercise the powers prescribed by the regulation, in accordance with the procedures specified in this section. Regulations adopted under this section shall be applicable within the local government's entire planning and development regulation jurisdiction or limited to one or more designated zoning districts, municipal service districts, or defined geographical areas designated for improvement and investment in an adopted comprehensive plan.
- Investigation. - Whenever it appears to the public officer that any nonresidential building or structure has not been properly maintained so that the safety or health of its occupants or members of the general public are jeopardized for failure of the property to meet the minimum standards established by the governing board, the public officer shall undertake a preliminary investigation. If entry upon the premises for purposes of investigation is necessary, such entry shall be made pursuant to a duly issued administrative search warrant in accordance with G.S. 15-27.2 or with permission of the owner, the owner's agent, a tenant, or other person legally in possession of the premises.
- Complaint and Hearing. - If the preliminary investigation discloses evidence of a violation of the minimum standards, the public officer shall issue and cause to be served upon the owner of and parties in interest in the nonresidential building or structure a complaint. The complaint shall state the charges and contain a notice that an administrative hearing will be held before the public officer, or his or her designated agent, at a place within the county scheduled not less than 10 days nor more than 30 days after the serving of the complaint; that the owner and parties in interest shall be given the right to answer the complaint and to appear in person, or otherwise, and give testimony at the place and time fixed in the complaint; and that the rules of evidence prevailing in courts of law or equity are not controlling in hearings before the public officer.
- Order. - If, after notice and hearing, the public officer determines that the nonresidential building or structure has not been properly maintained so that the safety or health of its occupants or members of the general public is jeopardized for failure of the property to meet the minimum standards established by the governing board, the public officer shall state in writing findings of fact in support of that determination and shall issue and cause to be served upon the owner thereof an order. The order may require the owner to take remedial action, within a reasonable time specified, subject to the procedures and limitations herein.
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Limitations on Orders. -
- An order may require the owner to repair, alter, or improve the nonresidential building or structure in order to bring it into compliance with the minimum standards established by the governing board or to vacate and close the nonresidential building or structure for any use.
- An order may require the owner to remove or demolish the nonresidential building or structure if the cost of repair, alteration, or improvement of the building or structure would exceed fifty percent (50%) of its then current value. Notwithstanding any other provision of law, if the nonresidential building or structure is designated as a local historic landmark, listed in the National Register of Historic Places, or located in a locally designated historic district or in a historic district listed in the National Register of Historic Places and the governing board determines, after an administrative hearing as provided by ordinance, that the nonresidential building or structure is of individual significance or contributes to maintaining the character of the district, and the nonresidential building or structure has not been condemned as unsafe, the order may require that the nonresidential building or structure be vacated and closed until it is brought into compliance with the minimum standards established by the governing board.
- An order may not require repairs, alterations, or improvements to be made to vacant manufacturing facilities or vacant industrial warehouse facilities to preserve the original use. The order may require such building or structure to be vacated and closed, but repairs may be required only when necessary to maintain structural integrity or to abate a health or safety hazard that cannot be remedied by ordering the building or structure closed for any use.
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Action by Governing Board Upon Failure to Comply With Order. -
- If the owner fails to comply with an order to repair, alter, or improve or to vacate and close the nonresidential building or structure, the governing board may adopt an ordinance ordering the public officer to proceed to effectuate the purpose of this section with respect to the particular property or properties that the public officer found to be jeopardizing the health or safety of its occupants or members of the general public. The property or properties shall be described in the ordinance. The ordinance shall be recorded in the office of the register of deeds and shall be indexed in the name of the property owner or owners in the grantor index. Following adoption of an ordinance, the public officer may cause the building or structure to be repaired, altered, or improved or to be vacated and closed. The public officer may cause to be posted on the main entrance of any nonresidential building or structure so closed a placard with the following words: "This building is unfit for any use; the use or occupation of this building for any purpose is prohibited and unlawful." Any person who occupies or knowingly allows the occupancy of a building or structure so posted is guilty of a Class 3 misdemeanor.
- If the owner fails to comply with an order to remove or demolish the nonresidential building or structure, the governing board may adopt an ordinance ordering the public officer to proceed to effectuate the purpose of this section with respect to the particular property or properties that the public officer found to be jeopardizing the health or safety of its occupants or members of the general public. No ordinance shall be adopted to require demolition of a nonresidential building or structure until the owner has first been given a reasonable opportunity to bring it into conformity with the minimum standards established by the governing board. The property or properties shall be described in the ordinance. The ordinance shall be recorded in the office of the register of deeds and shall be indexed in the name of the property owner or owners in the grantor index. Following adoption of an ordinance, the public officer may cause the building or structure to be removed or demolished.
-
Action by Governing Board Upon Abandonment of Intent to Repair. - If the governing board has adopted an ordinance or the public officer has issued an order requiring the building or structure to be repaired or vacated and closed and the building or structure
has been vacated and closed for a period of two years pursuant to the ordinance or order, the governing board may make findings that the owner has abandoned the intent and purpose to repair, alter, or improve the building or structure
and that the continuation of the building or structure in its vacated and closed status would be inimical to the health, safety, and welfare of the local government in that it would continue to deteriorate, would create a fire
or safety hazard, would be a threat to children and vagrants, would attract persons intent on criminal activities, or would cause or contribute to blight and the deterioration of property values in the area. Upon such findings,
the governing board may, after the expiration of the two-year period, enact an ordinance and serve such ordinance on the owner, setting forth the following:
- If the cost to repair the nonresidential building or structure to bring it into compliance with the minimum standards is less than or equal to fifty percent (50%) of its then current value, the ordinance shall require that the owner either repair or demolish and remove the building or structure within 90 days.
- If the cost to repair the nonresidential building or structure to bring it into compliance with the minimum standards exceeds fifty percent (50%) of its then current value, the ordinance shall require the owner to demolish and remove the building or structure within 90 days.
- Service of Complaints and Orders. - Complaints or orders issued by a public officer pursuant to an ordinance adopted under this section shall be served upon persons either personally or by certified mail so long as the means used are reasonably designed to achieve actual notice. When service is made by certified mail, a copy of the complaint or order may also be sent by regular mail. Service shall be deemed sufficient if the certified mail is refused but the regular mail is not returned by the post office within 10 days after the mailing. If regular mail is used, a notice of the pending proceedings shall be posted in a conspicuous place on the premises affected. If the identities of any owners or the whereabouts of persons are unknown and cannot be ascertained by the public officer in the exercise of reasonable diligence and the public officer makes an affidavit to that effect, the serving of the complaint or order upon the owners or other persons may be made by publication in a newspaper having general circulation in the local government at least once no later than the time that personal service would be required under this section. When service is made by publication, a notice of the pending proceedings shall be posted in a conspicuous place on the premises affected.
-
Liens. -
- The amount of the cost of repairs, alterations, or improvements, or vacating and closing, or removal or demolition by the public officer are a lien against the real property upon which the cost was incurred, which lien shall be filed, have the same priority, and be collected as the lien for special assessment provided in Article 10 of Chapter 160A of the General Statutes.
- If the real property upon which the cost was incurred is located in an incorporated city, the amount of the costs is also a lien on any other real property of the owner located within the city limits except for the owner's primary residence. The additional lien provided in this subdivision is inferior to all prior liens and shall be collected as a money judgment.
- If the nonresidential building or structure is removed or demolished by the public officer, he or she shall offer for sale the recoverable materials of the building or structure and any personal property, fixtures, or appurtenances found in or attached to the building or structure and shall credit the proceeds of the sale, if any, against the cost of the removal or demolition, and any balance remaining shall be deposited in the superior court by the public officer, shall be secured in a manner directed by the court, and shall be disbursed by the court to the persons found to be entitled thereto by final order or decree of the court. Nothing in this section shall be construed to impair or limit in any way the power of the governing board to define and declare nuisances and to cause their removal or abatement by summary proceedings or otherwise.
- Ejectment. - If any occupant fails to comply with an order to vacate a nonresidential building or structure, the public officer may file a civil action in the name of the local government to remove the occupant. The action to vacate is in the nature of summary ejectment and shall be commenced by filing a complaint naming as parties-defendant any person occupying the nonresidential building or structure. The clerk of superior court shall issue a summons requiring the defendant to appear before a magistrate at a certain time, date, and place not to exceed 10 days from the issuance of the summons to answer the complaint. The summons and complaint shall be served as provided in G.S. 42-29. The summons shall be returned according to its tenor, and if on its return it appears to have been duly served and if at the hearing the public officer produces a certified copy of an ordinance adopted by the governing board pursuant to subsection (f) of this section to vacate the occupied nonresidential building or structure, the magistrate shall enter judgment ordering that the premises be vacated and all persons be removed. The judgment ordering that the nonresidential building or structure be vacated shall be enforced in the same manner as the judgment for summary ejectment entered under G.S. 42-30. An appeal from any judgment entered under this subsection by the magistrate may be taken as provided in G.S. 7A-228, and the execution of the judgment may be stayed as provided in G.S. 7A-227. An action to remove an occupant of a nonresidential building or structure who is a tenant of the owner may not be in the nature of a summary ejectment proceeding pursuant to this subsection unless the occupant was served with notice, at least 30 days before the filing of the summary ejectment proceeding, that the governing board has ordered the public officer to proceed to exercise his or her duties under subsection (f) of this section to vacate and close or remove and demolish the nonresidential building or structure.
- Civil Penalty. - The governing board may impose civil penalties against any person or entity that fails to comply with an order entered pursuant to this section. However, the imposition of civil penalties does not limit the use of any other lawful remedies available to the governing board for the enforcement of any ordinances adopted pursuant to this section.
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Supplemental Powers. - The powers conferred by this section are supplemental to the powers conferred by any other law. An ordinance adopted by the governing board may authorize the public officer to exercise any powers necessary or convenient to carry
out and effectuate the purpose and provisions of this section, including the following powers in addition to others herein granted:
- To investigate nonresidential buildings and structures in the local government's planning and development regulation jurisdiction to determine whether they have been properly maintained in compliance with the minimum standards so that the safety or health of the occupants or members of the general public are not jeopardized.
- To administer oaths, affirmations, examine witnesses, and receive evidence.
- To enter upon premises pursuant to subsection (b) of this section for the purpose of making examinations in a manner that will do the least possible inconvenience to the persons in possession.
- To appoint and fix the duties of officers, agents, and employees necessary to carry out the purposes of the ordinances adopted by the governing board.
- To delegate any of his or her functions and powers under the ordinance to other officers and agents.
- Appeals. - The governing board may provide that appeals may be taken from any decision or order of the public officer to the local government's housing appeals board or board of adjustment. Any person aggrieved by a decision or order of the public officer has the remedies provided in G.S. 160D-1208.
- Funding. - The governing board is authorized to make appropriations from its revenues necessary to carry out the purposes of this section and may accept and apply grants or donations to assist in carrying out the provisions of the ordinances adopted by the governing board.
- No Effect on Just Compensation for Taking by Eminent Domain. - Nothing in this section shall be construed as preventing the owner or owners of any property from receiving just compensation for the taking of property by the power of eminent domain under the laws of this State nor as permitting any property to be condemned or destroyed except in accordance with the police power of the State.
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Definitions. - As used in this section, the following definitions apply:
- Parties in interest. - All individuals, associations, and corporations who have interests of record in a nonresidential building or structure and any who are in possession thereof.
- Vacant industrial warehouse. - Any building or structure designed for the storage of goods or equipment in connection with manufacturing processes, which has not been used for that purpose for at least one year and has not been converted to another use.
- Vacant manufacturing facility. - Any building or structure previously used for the lawful production or manufacturing of goods, which has not been used for that purpose for at least one year and has not been converted to another use.
In the case of vacant manufacturing facilities or vacant industrial warehouse facilities, the building or structure must have been vacated and closed pursuant to an order or ordinance for a period of five years before the governing board may take action under this subsection. The ordinance shall be recorded in the office of the register of deeds in the county wherein the property or properties are located and shall be indexed in the name of the property owner in the grantor index. If the owner fails to comply with the ordinance, the public officer shall effectuate the purpose of the ordinance.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 37, 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 37, effective June 19, 2020, in the last sentence of subsection (b), substituted "Regulations adopted under this section" for "Such regulation" at the beginning and added "or defined geographical areas designated for improvement and investment in an adopted comprehensive plan" at the end; substituted "an administrative hearing" for "a public hearing" in the second sentence of subdivision (e)(2); and made minor stylistic changes throughout.
§ 160D-1130. Vacant building receivership.
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Petition to Appoint a Receiver. - The governing board of a city or its delegated commission may petition the superior court for the appointment of a receiver to rehabilitate, demolish, or sell a vacant building, structure, or dwelling upon the occurrence
of any of the following, each of which is deemed a nuisance per se:
- The owner fails to comply with an order issued pursuant to G.S. 160D-1122, related to building or structural conditions that constitute a fire or safety hazard or render the building or structure dangerous to life, health, or other property, from which no appeal has been taken.
- The owner fails to comply with an order of the city following an appeal of an inspector's order issued pursuant to G.S. 160D-1122.
- The governing board of the city adopts any ordinance pursuant to subdivision (f)(1) of G.S. 160D-1129, related to nonresidential buildings or structures that fail to meet minimum standards of maintenance, sanitation, and safety, and orders a public officer to continue enforcement actions prescribed by the ordinance with respect to the named nonresidential building or structure. The public officer may submit a petition on behalf of the governing board to the superior court for the appointment of a receiver, and if granted by the superior court, the petition shall be considered an appropriate means of complying with the ordinance. In the event the superior court does not grant the petition, the public officer and the governing board may take action pursuant to the ordinance in any manner authorized in G.S. 160D-1129.
- The owner fails to comply with an order to repair, alter, or improve, remove, or demolish a dwelling issued under G.S. 160D-1203, related to dwellings that are unfit for human habitation.
- Any owner or partial owner of a vacant building, structure, or dwelling, with or without the consent of other owners of the property, submits a request to the governing board in the form of a sworn affidavit requesting the governing board to petition the superior court for appointment of a receiver for the property pursuant to this section.
- Petition for Appointment of Receiver. - The petition for the appointment of a receiver shall include all of the following: (i) a copy of the original violation notice or order issued by the city or, in the case of an owner request to the governing board for a petition for appointment of a receiver, a verified pleading that avers that at least one owner consents to the petition; (ii) a verified pleading that avers that the required rehabilitation or demolition has not been completed; and (iii) the names of the respondents, which shall include the owner of the property, as recorded with the register of deeds, any mortgagee with a recorded interest in the property, and all other parties in interest, as defined in G.S. 160D-1202(2). If the petition fails to name a respondent as required by this subsection, the proceeding may continue, but the receiver's lien for expenses incurred in rehabilitating, demolishing, or selling the vacant building, structure, or dwelling, as authorized by subsection (f) of this section, does not have priority over the lien of that respondent.
- Notice of Proceeding. - Within 10 days after filing the petition, the city shall give notice of the pendency and nature of the proceeding by regular and certified mail to the last known address of all owners of the property, as recorded with the register of deeds, any mortgagee with a recorded interest in the property, and all other parties in interest, as defined in G.S. 160D-1202(2). Within 30 days of the date on which the notice was mailed, an owner of the property, as recorded with the register of deeds, any mortgagee with a recorded interest in the property, and all other parties in interest, as defined in G.S. 160D-1202(2), may apply to intervene in the proceeding and to be appointed as receiver. If the city fails to give notice to any owner of the property, as recorded with the register of deeds, any mortgagee with a recorded interest in the property, and all other parties in interest, as defined in G.S. 160D-1202(2), as required by this subsection, the proceeding may continue, but the receiver's lien for expenses incurred in rehabilitating, demolishing, or selling the vacant building, structure, or dwelling, as authorized by subsection (f) of this section, does not have priority over the lien of that owner, as recorded with the register of deeds, any mortgagee with a recorded interest in the property, and all other parties in interest, as defined in G.S. 160D-1202(2).
- Appointment of Receiver. - The court shall appoint a qualified receiver if the provisions of subsections (b) and (c) of this section have been satisfied. If the court does not appoint a person to rehabilitate or demolish the property pursuant to subsection (e) of this section, or if the court dismisses such an appointee, the court shall appoint a qualified receiver for the purpose of rehabilitating and managing the property, demolishing the property, or selling the property to a buyer. To be considered qualified, a receiver must demonstrate to the court (i) the financial ability to complete the purchase or rehabilitation of the property, (ii) the knowledge of, or experience in, the rehabilitation of vacant real property, (iii) the ability to obtain any necessary insurance, and (iv) the absence of any building code violations issued by the city on other real property owned by the person or any member, principal, officer, major stockholder, parent, subsidiary, predecessor, or others affiliated with the person or the person's business. No member of the petitioning city's governing board or a public officer of the petitioning city is qualified to be appointed as a receiver in that action. If, at any time, the court determines that the receiver is no longer qualified, the court may appoint another qualified receiver.
- Rehabilitation Not by Receiver. - The court may, instead of appointing a qualified receiver to rehabilitate or sell a vacant building, structure, or dwelling, appoint an owner or other party in interest in the property, as defined in G.S. 160D-1202, to rehabilitate or demolish the property if that person (i) demonstrates the ability to complete the rehabilitation or demolition within a reasonable time, (ii) agrees to comply with a specified schedule for rehabilitation or demolition, and (iii) posts a bond in an amount determined by the court as security for the performance of the required work in compliance with the specified schedule. After the appointment, the court shall require the person to report to the court on the progress of the rehabilitation or demolition, according to a schedule determined by the court. If, at any time, it appears to the city or its delegated commission that the owner, mortgagee, or other person appointed under this subsection is not proceeding with due diligence or in compliance with the court-ordered schedule, the city or its delegated commission may apply to the court for immediate revocation of that person's appointment and for the appointment of a qualified receiver. If the court revokes the appointment and appoints a qualified receiver, the bond posted by the owner, mortgagee, or other person shall be applied to the receiver's expenses in rehabilitating, demolishing, or selling the vacant building, structure, or dwelling.
- Receiver Authority Exclusive. - Upon the appointment of a receiver under subsection (d) of this section and after the receiver records a notice of receivership in the county in which the property is located that identifies the property, all other parties are divested of any authority to collect rents or other income from or to rehabilitate, demolish, or sell the building, structure, or dwelling subject to the receivership. Any party other than the appointed receiver who actively attempts to collect rents or other income from or to rehabilitate, demolish, or sell the property may be held in contempt of court and is subject to the penalties authorized by law for that offense. Any costs or fees incurred by a receiver appointed under this section and set by the court constitute a lien against the property, and the receiver's lien has priority over all other liens and encumbrances, except taxes or other government assessments.
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Receiver's Authority to Rehabilitate or Demolish. - In addition to all necessary and customary powers, a receiver appointed to rehabilitate or demolish a vacant building, structure, or dwelling has the right of possession with authority to do all of the
following:
- Contract for necessary labor and supplies for rehabilitation or demolition.
- Borrow money for rehabilitation or demolition from an approved lending institution or through a governmental agency or program, using the receiver's lien against the property as security.
- Manage the property prior to rehabilitation or demolition and pay operational expenses of the property, including taxes, insurance, utilities, general maintenance, and debt secured by an interest in the property.
- Collect all rents and income from the property, which shall be used to pay for current operating expenses and repayment of outstanding rehabilitation or demolition expenses.
- Manage the property after rehabilitation, with all the powers of a landlord, for a period of up to two years and apply the rent received to current operating expenses and repayment of outstanding rehabilitation or demolition expenses.
- Foreclose on the receiver's lien or accept a deed in lieu of foreclosure.
- Receiver's Authority to Sell. - In addition to all necessary and customary powers, a receiver appointed to sell a vacant building, structure, or dwelling may do all of the following: (i) sell the property to the highest bidder at public sale, following the same presale notice provisions that apply to a mortgage foreclosure under Article 2A of Chapter 45 of the General Statutes, and (ii) sell the property privately for fair market value if no party to the receivership objects to the amount and procedure. In the notice of public sale authorized under this subsection, it is sufficient to describe the property by a street address and reference to the book and page or other location where the property deed is registered. Prior to any sale under this subsection, the applicants to bid in the public sale or the proposed buyer in the private sale shall demonstrate the ability and experience needed to rehabilitate the property within a reasonable time. After deducting the expenses of the sale, the amount of outstanding taxes and other government assessments, and the amount of the receiver's lien, the receiver shall apply any remaining proceeds of the sale first to the city's costs and expenses, including reasonable attorneys' fees, and then to the liens against the property in order of priority. Any remaining proceeds shall be remitted to the property owner.
- Receiver Forecloses on Lien. - A receiver may foreclose on the lien authorized by subsection (f) of this section by selling the property subject to the lien at a public sale, following public notice and notice to interested parties in the manner as a mortgage foreclosure under Article 2A of Chapter 45 of the General Statutes. After deducting the expenses of the sale and the amount of any outstanding taxes and other government assessments, the receiver shall apply the proceeds of the sale to the liens against the property, in order of priority. In lieu of foreclosure, and only if the receiver has rehabilitated the property, an owner may pay the receiver's costs, fees, including reasonable attorneys' fees, and expenses or may transfer ownership in the property to either the receiver or an agreed upon third party for an amount agreed to by all parties to the receivership as being the property's fair market value.
- Deed After Sale. - Following the court's ratification of the sale of the property under this section, the receiver shall sign a deed conveying title to the property to the buyer, free and clear of all encumbrances, other than restrictions that run with the land. Upon the sale of the property, the receiver shall at the same time file with the court a final accounting and a motion to dismiss the action.
- Receiver's Tenure. - The tenure of a receiver appointed to rehabilitate, demolish, or sell a vacant building, structure, or dwelling shall extend no longer than two years after the rehabilitation, demolition, or sale of the property. Any time after the rehabilitation, demolition, or sale of the property, any party to the receivership may file a motion to dismiss the receiver upon the payment of the receiver's outstanding costs, fees, and expenses. Upon the expiration of the receiver's tenure, the receiver shall file a final accounting with the court that appointed the receiver.
- Administrative Fee Charged. - The city may charge the owner of the building, structure, or dwelling subject to the receivership an administrative fee that is equal to five percent (5%) of the profits from the sale of the building, structure, or dwelling or one hundred dollars ($100.00), whichever is less.
History
(2020-25, s. 38(a).)
Editor's Note. - Session Laws 2020-25, s. 52, made this section effective June 19, 2020.
Session Laws 2020-25, s. 38(b), provides: "This section applies to any nuisance per se described in G.S. 160A-439.1 or G.S. 160D-1130, as enacted by this section, that occurs on or after October 1, 2018, or any action listed in G.S. 160D-1130(a)(1) through (4) that was not complied with as of that date."
ARTICLE 12. Minimum Housing Codes.
Sec.
§ 160D-1201. Authorization.
- Dwellings. - The existence and occupation of dwellings that are unfit for human habitation are inimical to the welfare and dangerous and injurious to the health and safety of the people of this State. A public necessity exists for the repair, closing, or demolition of such dwellings. Whenever any local government finds that there exists in the planning and development regulation jurisdiction dwellings that are unfit for human habitation due to dilapidation; defects increasing the hazards of fire, accidents or other calamities; lack of ventilation, light, or sanitary facilities; or other conditions rendering the dwellings unsafe or unsanitary, or dangerous or detrimental to the health, safety, morals, or otherwise inimical to the welfare of the residents of the local government, power is conferred upon the local government to exercise its police powers to repair, close, or demolish the dwellings consistent with the provisions of this Article.
- Abandoned Structures. - Any local government may by ordinance provide for the repair, closing, or demolition of any abandoned structure that the governing board finds to be a health or safety hazard as a result of the attraction of insects or rodents, conditions creating a fire hazard, dangerous conditions constituting a threat to children, or frequent use by vagrants as living quarters in the absence of sanitary facilities. The ordinance may provide for the repair, closing, or demolition of such structure pursuant to the same provisions and procedures as are prescribed by this Article for the repair, closing, or demolition of dwellings found to be unfit for human habitation.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 39, 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 39, effective June 19, 2020, deleted "Occupied" preceding "Dwellings" in the subsection (a) heading.
CASE NOTES
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 160A-441, and prior law.
Constitutionality Generally. - It is not unconstitutional for a municipality to take upon itself a duty to see that repairs to buildings within its domain will be made in such manner as will prevent fire and structural hazards. This duty it is bound to exercise to protect the safety and health of the general public. To require a permit in order to implement such reasonable supervision is not in violation of any provision of the Constitution of the United States. Walker v. North Carolina, 262 F. Supp. 102 (W.D.N.C. 1966), cert. denied, 388 U.S. 917, 87 S. Ct. 2134, 18 L. Ed. 2d 1360 (1967), aff'd, 372 F.2d 129 (4th Cir. 1967).
Unconstitutional Action by Municipality. - An action by a municipality, pursuant to an ordinance adopted under the authority of former G.S. 160-182, in ordering the demolition of a dwelling house without compensation to the owner thereof, and in charging the expense of demolition to the owner upon his failure to demolish the house himself, such action being based upon findings by the city building inspector that the house was unfit for human habitation and that the repairs necessary to bring the house into conformity with the housing code would cost 60% or more of the present value of the house, was violative of the law of the land clause of the State Constitution, where (1) the house could be repaired so as to comply with the housing code, and (2) the owner was not afforded a reasonable opportunity to repair the house. Horton v. Gulledge, 277 N.C. 353, 177 S.E.2d 885 (1970).
A homeowner who was faced with a municipal housing inspector's order giving him no alternative but to demolish his home, declared uninhabitable by the municipality, or to pay the expense of demolition by the municipality, was not required to propose an
alternative remedy for the condition of the house before asserting his constitutional right in the courts. Horton v. Gulledge, 277 N.C. 353, 177 S.E.2d 885 (1970).
Purpose of Part. - This Part was enacted for the purpose of ensuring that minimum housing standards would be achieved in the cities and counties of this State. Harrell v. City of Winston-Salem, 22 N.C. App. 386, 206 S.E.2d 802, cert. denied, 285 N.C. 757, 209 S.E.2d 281 (1974); Farmers Bank v. City of Elizabeth City, 54 N.C. App. 110, 282 S.E.2d 580 (1981).
Public Interference Warranted Only to Secure Public Safety or Protect Health. - The only warrant for public interference with a person's building is to secure public safety and to protect the health of those occupying the building. Horton v. Gulledge,
277 N.C. 353, 177 S.E.2d 885 (1970).
City May Not Destroy Private Property for Aesthetic Reasons Alone. - A municipal corporation has no inherent police power, but may exercise such power only to the extent that it has been conferred upon the city by statute. Moreover, the legislature cannot confer upon a city a power which the legislature, itself, does not have. Consequently, a city may not, under the guise of the police power, destroy private property for aesthetic reasons alone. Horton v. Gulledge, 277 N.C. 353, 177 S.E.2d 885 (1970).
Trial court erred in granting summary judgment to the city on the homeowner's claim for violation of her due process rights because, although the homeowner's house was in severe disrepair, the city violated her due process rights by demolishing the home
without giving her notice, as the condition of the house did not pose an imminent threat to the public, warranting its immediate demolition; accordingly, the appellate court reversed the judgment and remanded the case for an entry
summary judgment in favor of the homeowner and a trial on the issue of damages. Monroe v. City of New Bern, 158 N.C. App. 275, 580 S.E.2d 372, cert. denied, 357 N.C. 461,
586 S.E.2d 93 (2003).
Compensation to Owner Not Required. - The police power of the State, which it may delegate to its municipal corporations, extends to the prohibition of a use of private property which may reasonably be deemed to threaten the public health, safety, or
morals or the general welfare, and when necessary to safeguard such public interest, such power may be exercised without payment of compensation to the owner, even though his property is thereby rendered substantially worthless.
Horton v. Gulledge, 277 N.C. 353, 177 S.E.2d 885 (1970).
As to authorization of the exercise of police power by municipality, see State v. Walker, 265 N.C. 482, 144 S.E.2d 419 (1965).
As to the incorporation of former G.S. 160-183 to 160-189 in the City Code of Morganton, see Dale v. City of Morganton, 270 N.C. 567, 155 S.E.2d 136 (1967).
§ 160D-1202. Definitions.
The following definitions apply in this Article:
- Owner. - The holder of the title in fee simple and every mortgagee of record.
- Parties in interest. - All individuals, associations, and corporations that have interests of record in a dwelling and any that are in possession of a dwelling.
- Public authority. - Any housing authority or any officer that is in charge of any department or branch of the government of the city, county, or State relating to health, fire, building regulations, or other activities concerning dwellings in the local government.
- Public officer. - The officer authorized by ordinances adopted under this Article to exercise the powers prescribed by the ordinances and by this Article.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d); 2021-88, s. 1(h).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2021-88, s. 1(h), effective July 22, 2021, rewrote the section.
CASE NOTES
Editor's Note. - The case cited under this section was decided under former G.S. 160A-442, and prior law.
"Owner." - Although a son of mobile home owners claimed to have an ownership interest in the mobile homes, the son's due process rights were not violated when the city did not send him notice of proceedings relating to the demolition of the mobile homes
because the son's ownership interest did not appear anywhere in the public record, and pursuant to G.S. 160A-442(4) and G.S. 160A-443(2), the city did not have to conduct an investigation to uncover whether there were owners other
than those appearing of record. Patterson v. City of Gastonia, 220 N.C. App. 233, 725 S.E.2d 82 (2012).
§ 160D-1203. Ordinance authorized as to repair, closing, and demolition; order of public officer.
Upon the adoption of an ordinance finding that dwelling conditions of the character described in G.S. 160D-1201 exist, the governing board is authorized to adopt and enforce ordinances relating to dwellings within the planning and development regulation jurisdiction that are unfit for human habitation. These ordinances shall include the following provisions:
- Designation of enforcement officer. - One or more public officers shall be designated to exercise the powers prescribed by the ordinance.
- Investigation, complaint, hearing. - Whenever a petition is filed with the public officer by a public authority or by at least five residents of the jurisdiction charging that any dwelling is unfit for human habitation or when it appears to the public officer that any dwelling is unfit for human habitation, the public officer shall, if a preliminary investigation discloses a basis for such charges, issue and cause to be served upon the owner of and parties in interest in such dwellings a complaint stating the charges in that respect and containing a notice that an administrative hearing will be held before the public officer, or the officer's designated agent, at a place within the county in which the property is located. The hearing shall be not less than 10 days nor more than 30 days after the serving of the complaint. The owner and parties in interest shall be given the right to file an answer to the complaint and to appear in person, or otherwise, and give testimony at the place and time fixed in the complaint. The rules of evidence prevailing in courts of law shall not be controlling in administrative hearings before the public officer.
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Orders. - If, after notice and an administrative hearing, the public officer determines that the dwelling under consideration is unfit for human habitation, the officer shall state in writing findings of fact in support of that determination and shall
issue and cause to be served upon the owner one of the following orders, as appropriate:
- If the repair, alteration, or improvement of the dwelling can be made at a reasonable cost in relation to the value of the dwelling, requiring the owner, within the time specified, to repair, alter, or improve the dwelling in order to render it fit for human habitation. The ordinance may fix a certain percentage of this value as being reasonable. The order may require that the property be vacated and closed only if continued occupancy during the time allowed for repair will present a significant threat of bodily harm, taking into account the nature of the necessary repairs, alterations, or improvements; the current state of the property; and any additional risks due to the presence and capacity of minors under the age of 18 or occupants with physical or mental disabilities. The order shall state that the failure to make timely repairs as directed in the order shall make the dwelling subject to the issuance of an unfit order under subdivision (4) of this section.
- If the repair, alteration, or improvement of the dwelling cannot be made at a reasonable cost in relation to the value of the dwelling, requiring the owner, within the time specified in the order, to remove or demolish the dwelling. The ordinance may fix a certain percentage of this value as being reasonable. However, notwithstanding any other provision of law, if the dwelling is located in a historic district and the Historic District Commission determines, after an administrative hearing as provided by ordinance, that the dwelling is of particular significance or value toward maintaining the character of the district, and the dwelling has not been condemned as unsafe, the order may require that the dwelling be vacated and closed consistent with G.S. 160D-949.
- Repair, closing, and posting. - If the owner fails to comply with an order to repair, alter, or improve or to vacate and close the dwelling, the public officer may cause the dwelling to be repaired, altered, or improved or to be vacated and closed, and the public officer may cause to be posted on the main entrance of any dwelling so closed a placard with the following words: "This building is unfit for human habitation; the use or occupation of this building for human habitation is prohibited and unlawful." Occupation of a building so posted shall constitute a Class 1 misdemeanor. The duties of the public officer set forth in this subdivision shall not be exercised until the governing board shall have by ordinance ordered the public officer to proceed to effectuate the purpose of this Article with respect to the particular property or properties that the public officer shall have found to be unfit for human habitation and which property or properties shall be described in the ordinance. This ordinance shall be recorded in the office of the register of deeds in the county where the property or properties are located and shall be indexed in the name of the property owner in the grantor index.
- Demolition. - If the owner fails to comply with an order to remove or demolish the dwelling, the public officer may cause such dwelling to be removed or demolished. The duties of the public officer set forth in this subdivision shall not be exercised until the governing board shall have by ordinance ordered the public officer to proceed to effectuate the purpose of this Article with respect to the particular property or properties that the public officer shall have found to be unfit for human habitation and which property or properties shall be described in the ordinance. No such ordinance shall be adopted to require demolition of a dwelling until the owner has first been given a reasonable opportunity to bring it into conformity with the housing code. This ordinance shall be recorded in the office of the register of deeds in the county where the property or properties are located and shall be indexed in the name of the property owner in the grantor index.
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Abandonment of Intent to Repair. - If the dwelling has been vacated and closed for a period of one year pursuant to an ordinance adopted pursuant to subdivision (4) of this section or after a public officer issues an order or proceedings have commenced
under the substandard housing regulations regarding a dwelling to be repaired or vacated and closed as provided in this subdivision, then the governing board may find that the owner has abandoned the intent and purpose to repair,
alter, or improve the dwelling in order to render it fit for human habitation and that the continuation of the dwelling in its vacated and closed status would be inimical to the health, safety, and welfare of the local government
in that the dwelling would continue to deteriorate, would create a fire and safety hazard, would be a threat to children and vagrants, would attract persons intent on criminal activities, would cause or contribute to blight and
the deterioration of property values in the area, and would render unavailable property and a dwelling that might otherwise have been made available to ease the persistent shortage of decent and affordable housing in this State,
then in such circumstances, the governing board may, after the expiration of such one-year period, enact an ordinance and serve such ordinance on the owner, setting forth the following:
- If it is determined that the repair of the dwelling to render it fit for human habitation can be made at a cost not exceeding fifty percent (50%) of the then current value of the dwelling, the ordinance shall require that the owner either repair or demolish and remove the dwelling within 90 days.
- If it is determined that the repair of the dwelling to render it fit for human habitation cannot be made at a cost not exceeding fifty percent (50%) of the then current value of the dwelling, the ordinance shall require the owner to demolish and remove the dwelling within 90 days.
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Liens. -
- The amount of the cost of repairs, alterations, or improvements, or vacating and closing, or removal or demolition by the public officer shall be a lien against the real property upon which the cost was incurred, which lien shall be filed, have the same priority, and be collected as the lien for special assessment provided in Article 10 of Chapter 160A of the General Statutes.
- If the real property upon which the cost was incurred is located in an incorporated city, then the amount of the cost is also a lien on any other real property of the owner located within the city limits or within one mile thereof except for the owner's primary residence. The additional lien provided in this sub-subdivision is inferior to all prior liens and shall be collected as a money judgment.
- If the dwelling is removed or demolished by the public officer, the local government shall sell the materials of the dwelling, and any personal property, fixtures, or appurtenances found in or attached to the dwelling, and shall credit the proceeds of the sale against the cost of the removal or demolition, and any balance remaining shall be deposited in the superior court by the public officer, shall be secured in a manner directed by the court, and shall be disbursed by the court to the persons found to be entitled thereto by final order or decree of the court. Nothing in this section shall be construed to impair or limit in any way the power of the local government to define and declare nuisances and to cause their removal or abatement by summary proceedings or otherwise.
- Civil action. - If any occupant fails to comply with an order to vacate a dwelling, the public officer may file a civil action in the name of the local government to remove such occupant. The action to vacate the dwelling shall be in the nature of summary ejectment and shall be commenced by filing a complaint naming as defendant any person occupying such dwelling. The clerk of superior court shall issue a summons requiring the defendant to appear before a magistrate at a certain time, date, and place not to exceed 10 days from the issuance of the summons to answer the complaint. The summons and complaint shall be served as provided in G.S. 42-29. If the summons appears to have been duly served and if at the hearing the public officer produces a certified copy of an ordinance adopted by the governing board pursuant to subdivision (5) of this section authorizing the officer to proceed to vacate the occupied dwelling, the magistrate shall enter judgment ordering that the premises be vacated and that all persons be removed. The judgment ordering that the dwelling be vacated shall be enforced in the same manner as the judgment for summary ejectment entered under G.S. 42-30. An appeal from any judgment entered hereunder by the magistrate may be taken as provided in G.S. 7A-228, and the execution of such judgment may be stayed as provided in G.S. 7A-227. An action to remove an occupant of a dwelling who is a tenant of the owner may not be in the nature of a summary ejectment proceeding pursuant to this paragraph unless such occupant was served with notice at least 30 days before the filing of the summary ejectment proceeding that the governing board has ordered the public officer to proceed to exercise his duties under subdivisions (4) and (5) of this section to vacate and close or remove and demolish the dwelling.
- Additional notices to affordable housing organizations. - Whenever a determination is made pursuant to subdivision (3) of this section that a dwelling must be vacated and closed, or removed or demolished, under the provisions of this section, notice of the order shall be given by first-class mail to any organization involved in providing or restoring dwellings for affordable housing that has filed a written request for such notices. A minimum period of 45 days from the mailing of such notice shall be given before removal or demolition by action of the public officer, to allow the opportunity for any organization to negotiate with the owner to make repairs, lease, or purchase the property for the purpose of providing affordable housing. The public officer or clerk shall certify the mailing of the notices, and the certification shall be conclusive in the absence of fraud. Only an organization that has filed a written request for such notices may raise the issue of failure to mail such notices, and the sole remedy shall be an order requiring the public officer to wait 45 days before causing removal or demolition.
This ordinance shall be recorded in the office of the register of deeds in the county wherein the property or properties are located and shall be indexed in the name of the property owner in the grantor index. If the owner fails to comply with this ordinance, the public officer shall effectuate the purpose of the ordinance.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 40, 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 40, effective June 19, 2020, in added "an administrative" near the beginning of the introductory paragraph of subdivision (3); substituted "an administrative hearing" for "a public hearing" in sub-subdivision (3)b.; and made a minor stylistic change.
CASE NOTES
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 160A-443, and prior law.
Substantial compliance with required procedures is a condition precedent to city's authority to forbid use of a dwelling house for human habitation. Dale v. City of Morganton, 270 N.C. 567, 155 S.E.2d
136 (1967).
Variation in Wording of Notice Held Immaterial. - The variation between the wording of a posted notice reading "This Building Is Unsafe, And Its Use For Occupancy Has Been Prohibited By The Building Official" and the notice prescribed by statute was not
material. Dale v. City of Morganton, 270 N.C. 567, 155 S.E.2d 136 (1967).
Three-Year Delay Between Order to Repair and Order to Demolish Entitled Owner to New Hearing. - An order to repair is issued after a determination that repairs can be made at a reasonable cost in relation to the value of the dwelling; an order to demolish
involves a different determination, namely, that the repairs cannot be made at a reasonable cost in relation to the value of the dwelling; therefore, where city's demolition order was issued almost three years after the city held
a hearing and issued its order to repair, plaintiff was entitled to another hearing on the issue of demolition. Newton v. City of Winston-Salem, 92 N.C. App. 446, 374 S.E.2d
488 (1988).
Failure to Provide Notice and Hearing Before Demolition. - Where city acted without authority in ordering the demolition of plaintiff's building without affording plaintiff notice and an opportunity to be heard as required by statute, the city acted at its peril in failing to exercise its powers in the manner prescribed by the statute, and thus was liable to plaintiff for any provable damages. Newton v. City of Winston-Salem, 92 N.C. App. 446, 374 S.E.2d 488 (1988).
Trial court erred in granting summary judgment to the city on the homeowner's claim for violation of her due process rights because, although the homeowner's house was in severe disrepair, the city violated her due process rights by demolishing the home without giving her notice, as the condition of the house did not pose an imminent threat to the public, warranting its immediate demolition; accordingly, the appellate court reversed the judgment and remanded the case for an entry summary judgment in favor of the homeowner and a trial on the issue of damages. Monroe v. City of New Bern, 158 N.C. App. 275, 580 S.E.2d 372, cert. denied, 357 N.C. 461, 586 S.E.2d 93 (2003).
Although a son of mobile home owners claimed to have an ownership interest in the mobile homes, the son's due process rights were not violated when the city did not send him notice of proceedings relating to the demolition of the mobile homes because the son's ownership interest did not appear anywhere in the public record, G.S. 160A-442(4) and G.S. 160A-443(2), and the city did not have to conduct an investigation to uncover whether there were owners other than those appearing of record. Patterson v. City of Gastonia, 220 N.C. App. 233, 725 S.E.2d 82 (2012).
Mobile home owners were not denied due process under the North Carolina Constitution when a city did not give them notice of a city council meeting wherein an ordinance of demolition was passed because the owners had an adequate alternative state remedy
under G.S. 160A-446, including administrative appeals and the right to seek injunctive relief, but the owners did not pursue the alternative remedies; the city council was not required under G.S. 160A-443(5) to conduct an evidentiary
hearing prior to passing the ordinance ordering demolition. Patterson v. City of Gastonia, 220 N.C. App. 233, 725 S.E.2d 82 (2012).
Proof of actual notice was irrelevant to plaintiff's right to recover damages against city for failing to comply with statutory procedures before demolishing plaintiff's building; therefore, the trial court's instruction to the jury that it could find
that the city used reasonable diligence to provide actual notice and thus absolve city of its liability for damages even though city failed to serve plaintiff as required by G.S. 160A-445, was error. Newton v. City of Winston-Salem,
92 N.C. App. 446, 374 S.E.2d 488 (1988).
Summary Judgment Improper. - Hertford, N.C. Ordinance § 17 is not inconsistent with the provisions of G.S. 160A-443(6)(c); however, a town was required to comply with G.S. 160A-443(6)(c) to salvage personal property or appurtenances on real estate and apply the proceeds to the cost of removal or demolition, and where owners claimed that mobile homes and contents removed from their property had value, but the town claimed they did not, summary judgment was improper. Town of Hertford v. Harris, 169 N.C. App. 838, 611 S.E.2d 194 (2005).
Although there was no genuine issue of fact as to what steps a city took in attempting to ascertain to whom they should send notice of condemnation of property, reasonable minds could differ as to whether the steps taken to find the actual owners were
sufficient under G.S. 160A-443. Therefore, the city was not entitled to summary judgment. Lawyer v. City of Elizabeth, 199 N.C. App. 304, 681 S.E.2d 415, review denied,
363 N.C. 855, 694 S.E.2d 389, 2010 N.C. LEXIS 223 (2010).
Summary Judgment for City Not Authorized Where Question of Reasonable Diligence Raised. - In an action to recover damages from defendant city for destruction of a residence on property held under a deed of trust to one plaintiff and secured under a promissory
note held by the other plaintiff, summary judgment was improperly granted for city where one of the questions raised by city's motion therefor was whether its building inspector used "reasonable diligence" in attempting to locate
plaintiff and others connected with the property. Farmers Bank v. City of Elizabeth City, 54 N.C. App. 110, 282 S.E.2d 580 (1981).
Authority of Greensboro Minimum Housing Standards Commission - - Greensboro, N.C. Minimum Housing Code
§
11-39(d), gave the Greensboro Minimum Housing Standards Commission the power to make a final order directing a building inspector to repair a building not brought into compliance pursuant to a previous order as local
governments could exercise their police power to maintain suitable buildings through their local ordinances under G.S. 160A-443. Moores v. Greensboro Minimum Hous. Stds. Comm'n, 198 N.C. App. 384, 679
S.E.2d 480 (2009).
Opinions of Attorney General
Editor's Note. - The opinion below was rendered under former G.S. 160A-443, or prior law.
As to priority of demolition lien over welfare lien, see opinion of Attorney General to Mr. Cicero P. Yow, Wilmington City Attorney, 40 N.C.A.G. 691 (1970); Mr. James C. Fox, New Hanover County Attorney, 40 N.C.A.G. 693 (1970).
§ 160D-1204. Heat source required.
- A local government shall, by ordinance, require that every dwelling unit leased as rental property within the city shall have, at a minimum, a central or electric heating system or sufficient chimneys, flues, or gas vents, with heating appliances connected, so as to heat at least one habitable room, excluding the kitchen, to a minimum temperature of 68 degrees Fahrenheit measured 3 feet above the floor with an outside temperature of 20 degrees Fahrenheit.
- If a dwelling unit contains a heating system or heating appliances that meet the requirements of subsection (a) of this section, the owner of the dwelling unit shall not be required to install a new heating system or heating appliances, but the owner shall be required to maintain the existing heating system or heating appliances in a good and safe working condition. Otherwise, the owner of the dwelling unit shall install a heating system or heating appliances that meet the requirements of subsection (a) of this section and shall maintain the heating system or heating appliances in a good and safe working condition.
- Portable kerosene heaters are not acceptable as a permanent source of heat as required by subsection (a) of this section but may be used as a supplementary source in single-family dwellings and duplex units. An owner who has complied with subsection (a) of this section shall not be held in violation of this section where an occupant of a dwelling unit uses a kerosene heater as a primary source of heat.
- This section applies only to local governments with a population of 200,000 or over within their planning and development regulation jurisdiction, according to the most recent decennial federal census.
- Nothing in this section shall be construed to diminish the rights or remedies available to a tenant under a lease agreement, statute, or at common law or to prohibit a city from adopting an ordinance with more stringent heating requirements than provided for by this section.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1205. Standards.
An ordinance adopted under this Article shall provide that the public officer may determine that a dwelling is unfit for human habitation if the officer finds that conditions exist in the dwelling that render it dangerous or injurious to the health, safety, or welfare of the occupants of the dwelling, the occupants of neighboring dwellings, or other residents of the jurisdiction. Defective conditions may include the following, without limiting the generality of the foregoing: defects therein increasing the hazards of fire, accident, or other calamities; lack of adequate ventilation, light, or sanitary facilities; dilapidation; disrepair; structural defects; or uncleanliness. The ordinances may provide additional standards to guide the public officers in determining the fitness of a dwelling for human habitation.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1206. Service of complaints and orders.
- Complaints or orders issued by a public officer pursuant to an ordinance adopted under this Article shall be served upon persons either personally or by certified mail. When service is made by certified mail, a copy of the complaint or order may also be sent by regular mail. Service shall be deemed sufficient if the certified mail is unclaimed or refused but the regular mail is not returned by the post office within 10 days after the mailing. If regular mail is used, a notice of the pending proceedings shall be posted in a conspicuous place on the premises affected.
- If the identities of any owners or the whereabouts of persons are unknown and cannot be ascertained by the public officer in the exercise of reasonable diligence, or, if the owners are known but have refused to accept service by certified mail, and the public officer makes an affidavit to that effect, then the serving of the complaint or order upon the owners or other persons may be made by publication in a newspaper having general circulation in the jurisdiction at least once no later than the time at which personal service would be required under the provisions of this Article. When service is made by publication, a notice of the pending proceedings shall be posted in a conspicuous place on the premises thereby affected.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 399.
CASE NOTES
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 160A-445, and prior law.
Failure to Provide Notice and Hearing Before Demolition. - Where city acted without authority in ordering the demolition of plaintiff's building without affording plaintiff notice and an opportunity to be heard as required by statute, the city acted at
its peril in failing to exercise its powers in the manner prescribed by the statute, and thus was liable to plaintiff for any provable damages. Newton v. City of Winston-Salem, 92 N.C. App. 446, 374 S.E.2d 488 (1988).
Proof of actual notice was irrelevant to plaintiff's right to recover damages against city for failing to comply with statutory procedures before demolishing plaintiff's building; therefore, the trial court's instruction to the jury that it could find
that the city used reasonable diligence to provide actual notice and thus absolve city of its liability for damages even though city failed to serve plaintiff as required by this section, was error. Newton v. City of Winston-Salem,
92 N.C. App. 446, 374 S.E.2d 488 (1988).
Summary Judgment for City Not Authorized Where Question of Reasonable Diligence in Locating Interested Parties Raised. - In an action to recover damages from defendant city for destruction of a residence on property held under a deed of trust to one plaintiff
and secured under a promissory note held by the other plaintiff, summary judgment was improperly granted for city where one of the questions raised by city's motion therefor was whether its building inspector used "reasonable diligence"
in attempting to locate plaintiff and others connected with the property. Farmers Bank v. City of Elizabeth City, 54 N.C. App. 110, 282 S.E.2d 580 (1981).
§ 160D-1207. Periodic inspections.
- Except as provided in subsection (b) of this section, the inspection department may make periodic inspections only when there is reasonable cause to believe that unsafe, unsanitary, or otherwise hazardous or unlawful conditions may exist in a residential building or structure. However, when the inspection department determines that a safety hazard exists in one of the dwelling units within a multifamily building, which in the opinion of the inspector poses an immediate threat to the occupant, the inspection department may inspect, in the absence of a specific complaint and actual knowledge of the unsafe condition, additional dwelling units in the multifamily building to determine if that same safety hazard exists. For purposes of this section, the term "reasonable cause" means any of the following: (i) the landlord or owner has a history of more than two verified violations of the housing ordinances or codes within a 12-month period, (ii) there has been a complaint that substandard conditions exist within the building or there has been a request that the building be inspected, (iii) the inspection department has actual knowledge of an unsafe condition within the building, or (iv) violations of the local ordinances or codes are visible from the outside of the property. In conducting inspections authorized under this section, the inspection department shall not discriminate between single-family and multifamily buildings or between owner-occupied and tenant-occupied buildings. In exercising this power, members of the department shall have a right to enter on any premises within the jurisdiction of the department at all reasonable hours for the purposes of inspection or other enforcement action, upon presentation of proper credentials. Nothing in this section shall be construed to prohibit periodic inspections in accordance with State fire prevention code or as otherwise required by State law.
- A local government may require periodic inspections as part of a targeted effort to respond to blighted or potentially blighted conditions within a geographic area that has been designated by the governing board. However, the total aggregate of targeted areas in the local government jurisdiction at any one time shall not be greater than 1 square mile or five percent (5%) of the area within the local government jurisdiction, whichever is greater. A targeted area designated by the local government shall reflect the local government's stated neighborhood revitalization strategy and shall consist of property that meets the definition of a "blighted area" or "blighted parcel" as those terms are defined in G.S. 160A-503(2) and G.S. 160A-503(2a), respectively, except that for purposes of this subsection, the planning board is not required to make a determination as to the property. The local government shall not discriminate in its selection of areas or housing types to be targeted and shall (i) provide notice to all owners and residents of properties in the affected area about the periodic inspections plan and information regarding a legislative hearing regarding the plan, (ii) hold a legislative hearing regarding the plan, and (iii) establish a plan to address the ability of low-income residential property owners to comply with minimum housing code standards.
-
In no event may a local government do any of the following: (i) adopt or enforce any ordinance that would require any owner or manager of rental property to obtain any permit or permission under Article 11 or Article 12 of this Chapter from the local
government to lease or rent residential real property or to register rental property with the local government, except for those individual properties that have more than four verified violations in a rolling 12-month period or
two or more verified violations in a rolling 30-day period, or upon the property being identified within the top ten percent (10%) of properties with crime or disorder problems as set forth in a local ordinance, (ii) require that
an owner or manager of residential rental property enroll or participate in any governmental program as a condition of obtaining a certificate of occupancy, (iii) levy a special fee or tax on residential rental property that is
not also levied against other commercial and residential properties, unless expressly authorized by general law or applicable only to an individual rental unit or property described in clause (i) of this subsection and the fee
does not exceed five hundred dollars ($500.00) in any 12-month period in which the unit or property is found to have verified violations, (iv) provide that any violation of a rental registration ordinance is punishable as a criminal
offense, or (v) require any owner or manager of rental property to submit to an inspection before receiving any utility service provided by the local government. For purposes of this section, the term "verified violation" means
all of the following:
- The aggregate of all violations of housing ordinances or codes found in an individual rental unit of residential real property during a 72-hour period.
- Any violations that have not been corrected by the owner or manager within 21 days of receipt of written notice from the local government of the violations. Should the same violation occur more than two times in a 12-month period, the owner or manager may not have the option of correcting the violation. If the housing code provides that any form of prohibited tenant behavior constitutes a violation by the owner or manager of the rental property, it shall be deemed a correction of the tenant-related violation if the owner or manager, within 30 days of receipt of written notice of the tenant-related violation, brings a summary ejectment action to have the tenant evicted.
- If a property is identified by the local government as being in the top ten percent (10%) of properties with crime or disorder problems, the local government shall notify the landlord of any crimes, disorders, or other violations that will be counted against the property to allow the landlord an opportunity to attempt to correct the problems. In addition, the local government and the county sheriff's office or city's police department shall assist the landlord in addressing any criminal activity, which may include testifying in court in a summary ejectment action or other matter to aid in evicting a tenant who has been charged with a crime. If the local government or the county sheriff's office or city's police department does not cooperate in evicting a tenant, the tenant's behavior or activity at issue shall not be counted as a crime or disorder problem as set forth in the local ordinance, and the property may not be included in the top ten percent (10%) of properties as a result of that tenant's behavior or activity.
- If the local government takes action against an individual rental unit under this section, the owner of the individual rental unit may appeal the decision to the housing appeals board or the zoning board of adjustment, if operating, or the planning board if created under G.S. 160D-301, or if neither is created, the governing board. The board shall fix a reasonable time for hearing appeals, shall give due notice to the owner of the individual rental unit, and shall render a decision within a reasonable time. The owner may appear in person or by agent or attorney. The board may reverse or affirm the action, wholly or partly, or may modify the action appealed from, and may make any decision and order that in the opinion of the board ought to be made in the matter.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 41, 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 41, effective June 19, 2020, substituted "a legislative hearing" for "a public hearing" twice in the last sentence of subsection (b).
§ 160D-1208. Remedies.
- An ordinance adopted pursuant to this Article may provide for a housing appeals board as provided by G.S. 160D-305. An appeal from any decision or order of the public officer is a quasi-judicial matter and may be taken by any person aggrieved thereby or by any officer, board, or commission of the local government. Any appeal from the public officer shall be taken within 10 days from the rendering of the decision or service of the order by filing with the public officer and with the housing appeals board a notice of appeal that shall specify the grounds upon which the appeal is based. Upon the filing of any notice of appeal, the public officer shall forthwith transmit to the board all the papers constituting the record upon which the decision appealed from was made. When an appeal is from a decision of the public officer refusing to allow the person aggrieved thereby to do any act, the decision remains in force until modified or reversed. When any appeal is from a decision of the public officer requiring the person aggrieved to do any act, the appeal has the effect of suspending the requirement until the hearing by the board, unless the public officer certifies to the board, after the notice of appeal is filed with the officer, that because of facts stated in the certificate, a copy of which shall be furnished to the appellant, a suspension of the requirement would cause imminent peril to life or property. In that case the requirement is not suspended except by a restraining order, which may be granted for due cause shown upon not less than one day's written notice to the public officer, by the board, or by a court of record upon petition made pursuant to subsection (f) of this section.
- The housing appeals board shall fix a reasonable time for hearing appeals, shall give due notice to the parties, and shall render its decision within a reasonable time. Any party may appear in person or by agent or attorney. The board may reverse or affirm, wholly or partly, or may modify the decision or order appealed from, and may make any decision and order that in its opinion ought to be made in the matter, and, to that end, it has all the powers of the public officer, but the concurring vote of four members of the board is necessary to reverse or modify any decision or order of the public officer. The board also has power in passing upon appeals, when unnecessary hardships would result from carrying out the strict letter of the ordinance, to adapt the application of the ordinance to the necessities of the case to the end that the spirit of the ordinance is observed, public safety and welfare secured, and substantial justice done.
- Every decision of the housing appeals board is subject to review by proceedings in the nature of certiorari instituted within 15 days of the decision of the board, but not otherwise.
- Any person aggrieved by an order issued by the public officer or a decision rendered by the housing appeals board may petition the superior court for an injunction restraining the public officer from carrying out the order or decision and the court may, upon such petition, issue a temporary injunction restraining the public officer pending a final disposition of the cause. The petition shall be filed within 30 days after issuance of the order or rendering of the decision. Hearings shall be had by the court on a petition within 20 days and shall be given preference over other matters on the court's calendar. The court shall hear and determine the issues raised and shall enter such final order or decree as law and justice may require. It is not necessary to file bond in any amount before obtaining a temporary injunction under this subsection.
- If any dwelling is erected, constructed, altered, repaired, converted, maintained, or used in violation of this Article or of any ordinance or code adopted under authority of this Article or any valid order or decision of the public officer or board made pursuant to any ordinance or code adopted under authority of this Article, the public officer or board may institute any appropriate action or proceedings to prevent the unlawful erection, construction, reconstruction, alteration, or use; to restrain, correct, or abate the violation; to prevent the occupancy of the dwelling; or to prevent any illegal act, conduct, or use in or about the premises of the dwelling.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 42, 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 42, effective June 19, 2020, substituted "G.S. 160D-305" for "G.S. 160D-306" in the first sentence of subsection (a); and made minor stylistic changes throughout.
CASE NOTES
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 160A-446, and prior law.
Due Process. - Mobile home owners were not denied due process under the North Carolina Constitution when a city did not give them notice of a city council meeting wherein an ordinance of demolition was passed because the owners had adequate alternative
state remedies under G.S. 160A-446, including administrative appeals and the right to seek injunctive relief, but the owners did not pursue the alternative remedies; the city council was not required under G.S. 160A-443(5) to conduct
an evidentiary hearing prior to passing the ordinance ordering demolition. Patterson v. City of Gastonia, 220 N.C. App. 233, 725 S.E.2d 82 (2012).
Purpose of writ of certiorari in subsection (e) is to bring the matter before the court, upon the evidence presented by the record itself. Axler v. City of Wilmington, 25 N.C. App. 110, 212 S.E.2d 510,
cert. denied, 287 N.C. 258, 214 S.E.2d 429 (1975).
Exhaustion of Remedies. - Proper course of action for a person aggrieved under a minimum housing ordinance would be to present the case at a minimum housing hearing and then, if the person remained unsatisfied, to appeal that decision to the housing appeals
board as permitted by statute. If the appeal to the board was unsuccessful, the person would then have the ability to seek review in superior court by proceedings in the nature of certiorari. Cheatham v. Town of Taylortown,
254 N.C. App. 613, 803 S.E.2d 658 (2017).
Purpose of restraining order authorized by subsection (f) is to protect an aggrieved party until there has been a final determination of a proceeding commenced under authority of the minimum housing standards of this Part. Axler v. City of Wilmington,
25 N.C. App. 110, 212 S.E.2d 510, cert. denied, 287 N.C. 258, 214 S.E.2d 429 (1975).
Plaintiffs must exhaust the administrative remedies available to them, and they cannot be allowed to undermine the prescribed statutory procedure set forth in this section. Harrell v. City of Winston-Salem, 22 N.C. App. 386, 206 S.E.2d 802, cert. denied, 285 N.C. 757, 209 S.E.2d 281 (1974).
§ 160D-1209. Compensation to owners of condemned property.
Nothing in this Article shall be construed as preventing the owner or owners of any property from receiving just compensation for the taking of property by the power of eminent domain under the laws of this State nor as permitting any property to be condemned or destroyed except in accordance with the police power of the State.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1210. Additional powers of public officer.
An ordinance adopted by the governing board may authorize the public officer to exercise any powers necessary or convenient to carry out and effectuate the purpose and provisions of this Article, including the following powers in addition to others herein granted:
- To investigate the dwelling conditions in the local government's planning and development regulation jurisdiction in order to determine which dwellings therein are unfit for human habitation.
- To administer oaths, affirmations, examine witnesses, and receive evidence.
- To enter upon premises for the purpose of making examinations in a manner that will do the least possible inconvenience to the persons in possession.
- To appoint and fix the duties of officers, agents, and employees necessary to carry out the purposes of the ordinances.
- To delegate any of his or her functions and powers under the ordinance to other officers and other agents.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1211. Administration of ordinance.
A local government adopting an ordinance under this Article shall, as soon as possible thereafter, prepare an estimate of the annual expenses or costs to provide the equipment, personnel, and supplies necessary for periodic examinations and investigations of the dwellings for the purpose of determining the fitness of dwellings for human habitation and for the enforcement and administration of its ordinances adopted under this Article. The local government is authorized to make appropriations from its revenues necessary for this purpose and may accept and apply grants or donations to assist it.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1212. Supplemental nature of Article.
Nothing in this Article shall be construed to abrogate or impair the powers of the courts or of any department of any local government to enforce any provisions of its charter or its ordinances or regulations nor to prevent or punish violations thereof. The powers conferred by this Article shall be supplemental to the powers conferred by any other law in carrying out the provisions of the ordinances.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
ARTICLE 13. Additional Authority.
Part 1. Open Space Acquisition.
Sec.
Part 2. Community Development and Redevelopment.
Part 3. Miscellaneous.
PART 1. OPEN SPACE ACQUISITION.
§ 160D-1301. Legislative intent.
It is the intent of the General Assembly to provide a means whereby any local government may acquire by purchase, gift, grant, devise, lease, or otherwise, and through the expenditure of public funds, the fee or any lesser interest or right in real property in order to preserve, through limitation of their future use, open spaces and areas for public use and enjoyment.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1302. Finding of necessity.
The General Assembly finds that the rapid growth and spread of urban development in the State is encroaching upon, or eliminating, many open areas and spaces of varied size and character, including many having significant scenic or aesthetic values, which areas and spaces if preserved and maintained in their present open state would constitute important physical, social, aesthetic, or economic assets to existing and impending urban development. The General Assembly declares that it is necessary for sound and proper urban development and in the public interest of the people of this State for any local government to expend or advance public funds for, or to accept by purchase, gift, grant, devise, lease, or otherwise, the fee or any lesser interest or right in real property so as to acquire, maintain, improve, protect, limit the future use of, or otherwise conserve open spaces and areas within their respective jurisdictions as defined by this Article.
The General Assembly declares that the acquisition of interests or rights in real property for the preservation of open spaces and areas constitutes a public purpose for which public funds may be expended or advanced.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1303. Local governments authorized to acquire and reconvey real property.
Any local government may acquire by purchase, gift, grant, devise, lease, or otherwise, the fee or any lesser interest, development right, easement, covenant, or other contractual right of or to real property within its respective jurisdiction, when it finds that the acquisition is necessary to achieve the purposes of this Part. Any local government may also acquire the fee to any property for the purpose of conveying or leasing the property back to its original owner or other person under covenants or other contractual arrangements that will limit the future use of the property in accordance with the purposes of this Part, but when this is done, the property may be conveyed back to its original owner but to no other person by private sale.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1304. Joint action by governing bodies.
A local government may enter into any agreement with any other local government for the purpose of jointly exercising the authority granted by this Part.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1305. Powers of governing bodies.
A local government, in order to exercise the authority granted by this Part, may:
- Enter into and carry out contracts with the State or federal government or any agencies thereof under which grants or other assistance are made to the local government.
- Accept any assistance or funds that may be granted by the State or federal government with or without a contract.
- Agree to and comply with any reasonable conditions imposed upon grants.
- Make expenditures from any funds so granted.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1306. Appropriations authorized.
For the purposes set forth in this Part, a local government may appropriate funds not otherwise limited as to use by law.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1307. Definitions.
As used in this Part, the following definitions apply:
- Open space or open area. - Any space or area characterized by great natural scenic beauty or where the existing openness, natural condition, or present state of use, if retained, would enhance the present or potential value of abutting or surrounding urban development or would maintain or enhance the conservation of natural or scenic resources. The terms also include interests or rights in real property and open space land or uses.
-
Open space land or open space uses. - Any undeveloped or predominantly undeveloped land in an urban area that has value for or is used for one or more of the following purposes:
- Park and recreational purposes.
- Conservation of land and other natural resources.
- Historic or scenic purposes.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§§ 160D-1308 through 160D-1310: Reserved for future codification purposes.
PART 2. COMMUNITY DEVELOPMENT AND REDEVELOPMENT.
§ 160D-1311. Community development programs and activities.
-
A local government is authorized to engage in, to accept federal and State grants and loans for, and to appropriate and expend funds for community development programs and activities. In undertaking community development programs and activities, in addition
to other authority granted by law, a local government may engage in the following activities:
- Programs of assistance and financing of rehabilitation of private buildings principally for the benefit of low- and moderate-income persons, or for the restoration or preservation of older neighborhoods or properties, including direct repair, the making of grants or loans, the subsidization of interest payments on loans, and the guaranty of loans.
- Programs concerned with employment, economic development, crime prevention, child care, health, drug abuse, education, and welfare needs of persons of low and moderate income.
- A governing board may exercise directly those powers granted by law to local government redevelopment commissions and those powers granted by law to local government housing authorities and may do so whether or not a redevelopment commission or housing authority is in existence in such local government. Any governing board desiring to do so may delegate to any redevelopment commission, created under Article 22 of Chapter 160A of the General Statutes, or to any housing authority, created under Article 1 of Chapter 157 of the General Statutes, the responsibility of undertaking or carrying out any specified community development activities. Any governing board may by agreement undertake or carry out for another any specified community development activities. Any governing board may contract with any person, association, or corporation in undertaking any specified community development activities. Any county or city board of health, county board of social services, or county or city board of education may by agreement undertake or carry out for any other governing board any specified community development activities.
- A local government undertaking community development programs or activities may create one or more advisory committees to advise it and to make recommendations concerning such programs or activities.
- A governing board proposing to undertake any loan guaranty or similar program for rehabilitation of private buildings is authorized to submit to its voters the question whether such program shall be undertaken, such referendum to be conducted pursuant to the general and local laws applicable to special elections in such local government. No State or local taxes shall be appropriated or expended by a county pursuant to this section for any purpose not expressly authorized by G.S. 153A-149, unless the same is first submitted to a vote of the people as therein provided.
- A government may receive and dispense funds from the Community Development Block Grant (CDBG) Section 108 Loan Guarantee program, Subpart M, 24 C.F.R. § 570.700, et seq., either through application to the North Carolina Department of Commerce or directly from the federal government, in accordance with State and federal laws governing these funds. Any local government that receives these funds directly from the federal government may pledge current and future CDBG funds for use as loan guarantees in accordance with State and federal laws governing these funds. A local government may implement the receipt, dispensing, and pledging of CDBG funds under this subsection by borrowing CDBG funds and lending all or a portion of those funds to a third party in accordance with applicable laws governing the CDBG program.
- All program income from Economic Development Grants from the Small Cities Community Development Block Grant Program may be retained by recipient cities and counties in "economically distressed counties," as defined in G.S. 143B-437.01, for the purposes of creating local economic development revolving loan funds. Such program income derived through the use by cities of Small Cities Community Development Block Grant money includes, but is not limited to, (i) payment of principal and interest on loans made by the county using CDBG funds, (ii) proceeds from the lease or disposition of real property acquired with CDBG funds, and (iii) any late fees associated with loan or lease payments in (i) and (ii) above. The local economic development revolving loan fund set up by the city shall fund only those activities eligible under Title I of the federal Housing and Community Development Act of 1974, as amended (P.L. 93-383), and shall meet at least one of the three national objectives of the Housing and Community Development Act. Any expiration of G.S. 143B-437.01 or G.S. 105-129.3 shall not affect this subsection as to designations of economically distressed counties made prior to its expiration.
A government that has pledged current or future CDBG funds for use as loan guarantees prior to the enactment of this subsection is authorized to have taken such action. A pledge of future CDBG funds under this subsection is not a debt or liability of the State or any political subdivision of the State or a pledge of the faith and credit of the State or any political subdivision of the State. The pledging of future CDBG funds under this subsection does not directly, indirectly, or contingently obligate the State or any political subdivision of the State to levy or to pledge any taxes.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1312. Acquisition and disposition of property for redevelopment.
Any local government is authorized, either as a part of a community development program or independently thereof, and without the necessity of compliance with the Urban Redevelopment Law, to exercise the following powers:
-
To acquire, by voluntary purchase from the owner or owners, real property that meets any of the following criteria:
- Blighted, deteriorated, deteriorating, undeveloped, or inappropriately developed from the standpoint of sound community development and growth.
- Appropriate for rehabilitation or conservation activities.
- Appropriate for housing construction or the economic development of the community.
- Appropriate for the preservation or restoration of historic sites, the beautification of urban land, the conservation of open space, natural resources, and scenic areas, the provision of recreational opportunities, or the guidance of urban development.
- To clear, demolish, remove, or rehabilitate buildings and improvements on land so acquired.
- To retain property so acquired for public purposes, or to dispose, through sale, lease, or otherwise, of any property so acquired to any person, firm, corporation, or governmental unit, provided the disposition of such property shall be undertaken in accordance with the procedures of Article 12 of Chapter 160A of the General Statutes, or the procedures of G.S. 160A-514, or any applicable local act or charter provision modifying such procedures, or subdivision (4) of this section.
- To sell, exchange, or otherwise transfer real property or any interest therein in a community development project area to any redeveloper at private sale for residential, recreational, commercial, industrial, or other uses or for public use in accordance with the community development plan, subject to such covenants, conditions, and restrictions as may be deemed to be in the public interest or to carry out the purposes of this Article, provided that the sale, exchange, or other transfer, and any agreement relating thereto, may be made only after approval of the governing board and after a legislative hearing. A notice of the hearing shall be given once a week for two successive weeks in a newspaper having general circulation in the local government's planning and development jurisdiction area, the notice shall be published the first time not less than 10 days nor more than 25 days preceding the hearing, and the notice shall disclose the terms of the sale, exchange, or transfer. At the hearing, the appraised value of the property to be sold, exchanged, or transferred shall be disclosed, and the consideration for the conveyance shall not be less than the appraised value.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 43, 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 43, effective June 19, 2020, in subdivision (4), substituted "a legislative hearing. A notice of the hearing" for "a public hearing; a notice of a public hearing" near the middle, deleted "public" preceding "hearing" throughout, and made a minor stylistic change.
§ 160D-1313. Urban Development Action Grants.
Any local government is authorized, either as a part of a community development program or independently thereof, to enter into contracts or agreements with any person, association, or corporation to undertake and carry out specified activities in furtherance of the purposes of Urban Development Action Grants authorized by the Housing and Community Development Act of 1977, P.L. 95-128, or any amendment thereto, that is a continuation of such grant programs by whatever designation, including the authority to enter into and carry out contracts or agreements to extend loans, loan subsidies, or grants to persons, associations, or corporations and to dispose of real or personal property by private sale in furtherance of such contracts or agreements.
Any enabling legislation contained in local acts that refers to "Urban Development Action Grants" or the Housing and Community Development Act of 1977, P.L. 95-128, shall be construed also to refer to any continuation of such grant programs by whatever designation.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1314. Urban homesteading programs.
A local government may establish a program of urban homesteading, in which residential property of little or no value is conveyed to persons who agree to rehabilitate the property and use it, for a minimum number of years, as their principal place of residence. Residential property is considered of little or no value if the cost of bringing the property into compliance with the local government's housing code exceeds sixty percent (60%) of the property's appraised value on the county tax records. In undertaking such a program, a local government may:
- Acquire by purchase, gift, or otherwise, but not eminent domain, residential property specifically for the purpose of reconveyance in the urban homesteading program or may transfer to the program residential property acquired for other purposes, including property purchased at a tax foreclosure sale.
- Under procedures and standards established by the local government, convey residential property by private sale under G.S. 160A-267 and for nominal monetary consideration to persons who qualify as grantees.
-
Convey property subject to the following conditions:
- A requirement that the grantee shall use the property as the grantee's principal place of residence for a minimum number of years.
- A requirement that the grantee rehabilitate the property so that it meets or exceeds minimum housing code standards.
- A requirement that the grantee maintain insurance on the property.
- Any other specific conditions, including, but not limited to, design standards, or actions that the local government may require.
- A provision for the termination of the grantee's interest in the property and its reversion to the local government upon the grantee's failure to meet any condition so established.
- Subordinate the local government's interest in the property to any security interest granted by the grantee to a lender of funds to purchase or rehabilitate the property.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1315. Downtown development projects.
- Definition. - As used in this section, "downtown development project" or "joint development project" means a capital project, in a central business district, as that district is defined by the governing board, comprising one or more buildings and including both public and private facilities. By way of illustration but not limitation, such a project might include a single building comprising a publicly owned parking structure and publicly owned convention center and a privately owned hotel or office building.
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Authorization. - If the governing board finds that it is likely to have a significant effect on the revitalization of the jurisdiction, the local government may acquire, construct, own, and operate or participate in the acquisition, construction, ownership,
and operation of a joint development project or of specific facilities within such a project. The local government may enter into binding contracts with one or more private developers with respect to acquiring, constructing, owning,
or operating such a project. Such a contract may, among other provisions, specify the following:
- The property interests of both the local government and the developer or developers in the project, provided that the property interests of the local government shall be limited to facilities for a public purpose.
- The responsibilities of the local government and the developer or developers for construction of the project.
- The responsibilities of the local government and the developer or developers with respect to financing the project.
- Eligible Property. - A joint development project may be constructed on property acquired by the developer or developers, on property directly acquired by the local government, or on property acquired by the local government while exercising the powers, duties, and responsibilities of a redevelopment commission pursuant to G.S. 160A-505 or G.S. 160D-1311.
-
Conveyance of Property Rights. - In connection with a joint development project, the local government may convey interests in property owned by it, including air rights over public facilities, as follows:
- If the property was acquired while the local government was exercising the powers, duties, and responsibilities of a redevelopment commission, the local government may convey property interests pursuant to the "Urban Redevelopment Law" or any local modification thereof.
- If the property was acquired by the local government directly, the local government may convey property interests pursuant to G.S. 160D-1312, and Article 12 of Chapter 160A of the General Statutes does not apply to such dispositions.
- In lieu of conveying the fee interest in air rights, the local government may convey a leasehold interest for a period not to exceed 99 years, using the procedures of subdivision (1) or (2) of this subsection, as applicable.
- Construction. - The contract between the local government and the developer or developers may provide that the developer or developers shall be responsible for construction of the entire joint development project. If so, the contract shall include such provisions as the governing board deems sufficient to assure that the public facility or facilities included in the project meet the needs of the local government and are constructed at a reasonable price. A project constructed pursuant to this subsection is not subject to Article 8 of Chapter 143 of the General Statutes, provided that local government funds constitute no more than fifty percent (50%) of the total costs of the joint development project. Federal funds available for loan to private developers in connection with a joint development project shall not be considered local government funds for purposes of this subsection.
- Operation. - The local government may contract for the operation of any public facility or facilities included in a joint redevelopment project by a person, partnership, firm, or corporation, public or private. Such a contract shall include provisions sufficient to assure that any such facility or facilities are operated for the benefit of the citizens of the local government.
- Grant Funds. - To assist in the financing of its share of a joint development project, the local government may apply for, accept, and expend grant funds from the federal or state governments.
Such a contract may be entered into before the acquisition of any real property necessary to the project.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1316. Low- and moderate-income housing programs.
Any local government is authorized to exercise the following powers:
- To engage in and to appropriate and expend funds for residential housing construction, new or rehabilitated, for sale or rental to persons and families of low and moderate income. Any governing board may contract with any person, association, or corporation to implement the provisions of this subdivision.
- To acquire real property by voluntary purchase from the owners to be developed by the local government or to be used by the local government to provide affordable housing to persons of low and moderate income.
- To convey property by private sale to any public or private entity that provides affordable housing to persons of low or moderate income under procedures and standards established by the local government, The local government shall include as part of any such conveyance covenants or conditions that assure the property will be developed by the entity for sale or lease to persons of low or moderate income.
- To convey residential property by private sale to persons of low or moderate income, in accordance with procedures and standards established by the local government, with G.S. 160A-267, and with any terms and conditions that the governing board may determine.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§§ 160D-1317 through 160D-1319: Reserved for future codification purposes.
PART 3. MISCELLANEOUS.
§ 160D-1320. Program to finance energy improvements.
- Purpose. - The General Assembly finds it is in the best interest of the citizens of North Carolina to promote and encourage renewable energy and energy efficiency within the State in order to conserve energy, promote economic competitiveness, and expand employment in the State. The General Assembly also finds that a local government has an integral role in furthering this purpose by promoting and encouraging renewable energy and energy efficiency within the local government's territorial jurisdiction. In furtherance of this purpose, a local government may establish a program to finance the purchase and installation of distributed generation renewable energy sources or energy efficiency improvements that are permanently affixed to residential, commercial, or other real property.
- Financing Assistance. - A local government may establish a revolving loan fund and a loan loss reserve fund for the purpose of financing or assisting in the financing of the purchase and installation of distributed generation renewable energy sources or energy efficiency improvements that are permanently fixed to residential, commercial, or other real property. A local government may establish other local government energy efficiency and distributed generation renewable energy source finance programs funded through federal grants. A local government may use State and federal grants and loans and its general revenue for this financing. The annual interest rate charged for the use of funds from the revolving fund may not exceed eight percent (8%) per annum, excluding other fees for loan application review and origination. The term of any loan originated under this section may not be greater than 20 years.
- Definition. - As used in this Article, "renewable energy source" has the same meaning as "renewable energy resource" in G.S. 62-133.8.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
ARTICLE 14. Judicial Review.
Sec.
§ 160D-1401. Declaratory judgments.
Challenges of legislative decisions of governing boards, including the validity or constitutionality of development regulations adopted pursuant to this Chapter, and actions authorized by G.S. 160D-108(h) or (i) and G.S. 160D-1403.1 may be brought pursuant
to Article 26 of Chapter 1 of the General Statutes. The governmental unit making the challenged decision shall be named a party
to the action.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 44, 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 44, effective June 19, 2020, substituted "G.S. 160D-108(h) or (i) and G.S. 160D-1403.1" for "G.S. 160D-108(c) or (g) and G.S. 160D-405(c)."
§ 160D-1402. Appeals in the nature of certiorari.
- Applicability. - This section applies to appeals of quasi-judicial decisions of decision-making boards when that appeal is in the nature of certiorari as required by this Chapter.
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Filing the Petition. - An appeal in the nature of certiorari shall be initiated by filing a petition for writ of certiorari with the superior court. The petition shall do all of the following:
- State the facts that demonstrate that the petitioner has standing to seek review.
- Set forth allegations sufficient to give the court and parties notice of the grounds upon which the petitioner contends that an error was made.
- Set forth with particularity the allegations and facts, if any, in support of allegations that, as the result of an impermissible conflict as described in G.S. 160D-109, or locally adopted conflict rules, the decision-making body was not sufficiently impartial to comply with due process principles.
- Set forth the relief the petitioner seeks.
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Standing. - A petition may be filed under this section only by a petitioner who has standing to challenge the decision being appealed. The following persons have standing to file a petition under this section:
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Any person possessing any of the following criteria:
- An ownership interest in the property that is the subject of the decision being appealed, a leasehold interest in the property that is the subject of the decision being appealed, or an interest created by easement, restriction, or covenant in the property that is the subject of the decision being appealed.
- An option or contract to purchase the property that is the subject of the decision being appealed.
- An applicant before the decision-making board whose decision is being appealed.
- Any other person who will suffer special damages as the result of the decision being appealed.
- An incorporated or unincorporated association to which owners or lessees of property in a designated area belong by virtue of their owning or leasing property in that area, or an association otherwise organized to protect and foster the interest of the particular neighborhood or local area, so long as at least one of the members of the association would have standing as an individual to challenge the decision being appealed, and the association was not created in response to the particular development or issue that is the subject of the appeal.
- A local government whose decision-making board has made a decision that the governing board believes improperly grants a variance from or is otherwise inconsistent with the proper interpretation of a development regulation adopted by the governing board.
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Any person possessing any of the following criteria:
- Respondent. - The respondent named in the petition shall be the local government whose decision-making board made the decision that is being appealed, except that if the petitioner is a local government that has filed a petition pursuant to subdivision (4) of subsection (c) of this section, then the respondent shall be the decision-making board. If the petitioner is not the applicant before the decision-making board whose decision is being appealed, the petitioner shall also name that applicant as a respondent. Any petitioner may name as a respondent any person with an ownership or leasehold interest in the property that is the subject of the decision being appealed who participated in the hearing, or was an applicant, before the decision-making board.
- Writ of Certiorari. - Upon filing the petition, the petitioner shall present the petition and a proposed writ of certiorari to the clerk of superior court of the county in which the matter arose. The writ shall direct the respondent local government or the respondent decision-making board, if the petitioner is a local government that has filed a petition pursuant to subdivision (4) of subsection (c) of this section, to prepare and certify to the court the record of proceedings below within a specified date. The writ shall also direct the petitioner to serve the petition and the writ upon each respondent named therein in the manner provided for service of a complaint under Rule 4(j) of the Rules of Civil Procedure, except that, if the respondent is a decision-making board, the petition and the writ shall be served upon the chair of that decision-making board. Rule 4(j)(5)d. of the Rules of Civil Procedure applies in the event the chair of a decision-making board cannot be found. No summons shall be issued. The clerk shall issue the writ without notice to the respondent or respondents if the petition has been properly filed and the writ is in proper form. A copy of the executed writ shall be filed with the court.
- Response to the Petition. - The respondent may, but need not, file a response to the petition, except that, if the respondent contends for the first time that any petitioner lacks standing to bring the appeal, that contention must be set forth in a response served on all petitioners at least 30 days prior to the hearing on the petition. If it is not served within that time period, the matter may be continued to allow the petitioners time to respond.
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Intervention. - Rule 24 of the Rules of Civil Procedure governs motions to intervene as a petitioner or respondent in an action initiated under this section with the following exceptions:
- Any person described in subdivision (1) of subsection (c) of this section has standing to intervene and shall be allowed to intervene as a matter of right.
- Any person, other than one described in subdivision (1) of subsection (c) of this section, who seeks to intervene as a petitioner must demonstrate that the person would have had standing to challenge the decision being appealed in accordance with subdivisions (2) through (4) of subsection (c) of this section.
- Any person, other than one described in subdivision (1) of subsection (c) of this section, who seeks to intervene as a respondent must demonstrate that the person would have had standing to file a petition in accordance with subdivisions (2) through (4) of subsection (c) of this section if the decision-making board had made a decision that is consistent with the relief sought by the petitioner.
- The Record. - The record shall consist of the decision and all documents and exhibits submitted to the decision-making board whose decision is being appealed, together with the minutes of the meeting or meetings at which the decision being appealed was considered. Upon request of any party, the record shall also contain an audio or videotape of the meeting or meetings at which the decision being appealed was considered if such a recording was made. Any party may also include in the record a transcript of the proceedings, which shall be prepared at the cost of the party choosing to include it. The parties may agree that matters unnecessary to the court's decision be deleted from the record or that matters other than those specified herein be included. The record shall be bound and paginated or otherwise organized for the convenience of the parties and the court. A copy of the record shall be served by the local government respondent, or the respondent decision-making board, upon all petitioners within three days after it is filed with the court.
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Hearing on the Record. - The court shall hear and decide all issues raised by the petition by reviewing the record submitted in accordance with subsection (h) of this section. The court shall allow the record to be supplemented with affidavits, testimony
of witnesses, or documentary or other evidence if, and to the extent that, the petition raises any of the following issues, in which case the rules of discovery set forth in the North Carolina Rules of Civil Procedure apply to
the supplementation of the record of these issues:
- Whether a petitioner or intervenor has standing.
- Whether, as a result of impermissible conflict as described in G.S. 160D-109 or locally adopted conflict rules, the decision-making body was not sufficiently impartial to comply with due process principles.
- Whether the decision-making body erred for the reasons set forth in sub-subdivisions a. and b. of subdivision (1) of subsection (j) of this section.
-
Scope of Review. -
-
When reviewing the decision under the provisions of this section, the court shall ensure that the rights of petitioners have not been prejudiced because the decision-making body's findings, inferences, conclusions, or decisions were:
- In violation of constitutional provisions, including those protecting procedural due process rights.
- In excess of the statutory authority conferred upon the local government, including preemption, or the authority conferred upon the decision-making board by ordinance.
- Inconsistent with applicable procedures specified by statute or ordinance.
- Affected by other error of law.
- Unsupported by competent, material, and substantial evidence in view of the entire record.
- Arbitrary or capricious.
- When the issue before the court is one set forth in sub-subdivisions a. through d. of subdivision (1) of this subsection, including whether the decision-making board erred in interpreting an ordinance, the court shall review that issue de novo. The court shall consider the interpretation of the decision-making board, but is not bound by that interpretation, and may freely substitute its judgment as appropriate. Whether the record contains competent, material, and substantial evidence is a conclusion of law, reviewable de novo.
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The term "competent evidence," as used in this subsection, does not preclude reliance by the decision-making board on evidence that would not be admissible under the rules of evidence as applied in the trial division of the General Court of Justice if
(i) except for the items noted in sub-subdivisions a., b., and c. of this subdivision that are conclusively incompetent, the evidence was admitted without objection or (ii) the evidence appears to be sufficiently trustworthy
and was admitted under such circumstances that it was reasonable for the decision-making board to rely upon it. The term "competent evidence," as used in this subsection, shall, regardless of the lack of a timely objection,
not be deemed to include the opinion testimony of lay witnesses as to any of the following:
- The use of property in a particular way affects the value of other property.
- The increase in vehicular traffic resulting from a proposed development poses a danger to the public safety.
- Matters about which only expert testimony would generally be admissible under the rules of evidence.
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When reviewing the decision under the provisions of this section, the court shall ensure that the rights of petitioners have not been prejudiced because the decision-making body's findings, inferences, conclusions, or decisions were:
- Action Not Rendered Moot by Loss of Property. - Subject to the limitations in the State and federal constitutions and State and federal case law, an action filed under this section is not rendered moot, if during the pendency of the action, the aggrieved person loses the applicable property interest as a result of the local government action being challenged and exhaustion of an appeal described herein is required for purposes of preserving a claim for damages under G.S. 160D-1403.1.
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Decision of the Court. - Following its review of the decision-making board in accordance with subsection (j) of this section, the court may affirm the decision, reverse the decision and remand the case with appropriate instructions, or remand the case
for further proceedings. If the court does not affirm the decision below in its entirety, then the court shall determine what relief should be granted to the petitioners:
- If the court concludes that the error committed by the decision-making board is procedural only, the court may remand the case for further proceedings to correct the procedural error.
- If the court concludes that the decision-making board has erred by failing to make findings of fact such that the court cannot properly perform its function, then the court may remand the case with appropriate instructions so long as the record contains substantial competent evidence that could support the decision below with appropriate findings of fact. However, findings of fact are not necessary when the record sufficiently reveals the basis for the decision below or when the material facts are undisputed and the case presents only an issue of law.
-
If the court concludes that the decision by the decision-making board is not supported by competent, material, and substantial evidence in the record or is based upon an error of law, then the court may remand the case with an order that directs the decision-making
board to take whatever action should have been taken had the error not been committed or to take such other action as is necessary to correct the error. Specifically:
- If the court concludes that a permit was wrongfully denied because the denial was not based on competent, material, and substantial evidence or was otherwise based on an error of law, the court shall remand with instructions that the permit be issued, subject to any conditions expressly consented to by the permit applicant as part of the application or during the board of adjustment appeal or writ of certiorari appeal.
- If the court concludes that a permit was wrongfully issued because the issuance was not based on competent, material, and substantial evidence or was otherwise based on an error of law, the court may remand with instructions that the permit be revoked.
- If the court concludes that a zoning board decision upholding a zoning enforcement action was not supported by substantial competent evidence or was otherwise based on an error of law, the court shall reverse the decision.
-
Effect of Appeal and Ancillary Injunctive Relief. -
- If a development approval is appealed, the applicant shall have the right to commence work while the appeal is pending. However, if the development approval is reversed by a final decision of any court of competent jurisdiction, the applicant shall not be deemed to have gained any vested rights on the basis of actions taken prior to or during the pendency of the appeal and must proceed as if no development approval had been granted.
- Upon motion of a party to a proceeding under this section, and under appropriate circumstances, the court may issue an injunctive order requiring any other party to that proceeding to take certain action or refrain from taking action that is consistent with the court's decision on the merits of the appeal.
- Joinder. - A declaratory judgment brought under G.S. 160D-1401 or other civil action relating to the decision at issue may be joined with the petition for writ of certiorari and decided in the same proceeding.
- Stays. - An appeal under this section is stayed as provided in G.S. 160D-405.
Upon the filing of a petition for writ of certiorari, a party may request a stay of the execution or enforcement of the decision of the quasi-judicial board pending superior court review. The court may grant a stay in its discretion and on conditions that properly provide for the security of the adverse party. A stay granted in favor of a city or county shall not require a bond or other security.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 45, 50(b), 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 50(b), provides: "Sections 5, 10, 14, 16, 17, 18, 45, 46, 47, [which amended or enacted 160D-108, 160D-108.1, 160D-405, 160D-603, 160D-703, 160D-705, 160D-706, 160D-1402, 160D-1403.1, 160D-1403.2, respectively] and the amendments to G.S. 160D-1405(c) in Section 48 incorporate in Chapter 160D of the General Statutes the provisions of Sections 1.2, 1.3, 1.6, 1.7, 1.8, 1.9, 1.10, 1.12, 1.13, 1.14, 1.15, and 1.17 of S.L. 2019-111 [which amended or enacted former 160A-360.1, 153A-320.1, 160A-385, 160A-385.1, 153A-344, 153A-344.1, 160A-388, 160A-393.1, 160A-364.1, 160A-393, 160A-393.2, 160A-381, 153A-340, 160A-382, 153A-342, 153A-346, and 160A-390, respectively], clarify and restate the intent of existing law, and apply to ordinances adopted before, on, and after the effective date of this act."
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 45, effective June 19, 2020, substituted " record is not adequate to allow an appropriate determination of the following issues" for " petition raises any of the following issues, in which case the rules of discovery set forth in the North Carolina Rules of Civil Procedure apply to the supplementation of the record of these issues" in the introductory paragraph; added "including preemption" in sub-subdivision (j)(1)b.; in subdivision (2), added "one set forth in sub-subdivisions a. through d. of subdivision (1) of this subsection, including" in the first sentence and added the last sentence; in the introductory paragraph of subdivision (3), added "except for the items noted in sub-subdivisions a., b., and c. of this subdivision that are conclusively incompetent" in the first sentence, and added "regardless of the lack of a timely objection" in the second sentence; added subsection (j1); substituted "any conditions expressly consented to by the permit applicant as part of the application or during the board of adjustment appeal or writ of certiorari appeal" for "reasonable and appropriate conditions" in sub-subdivision (k)(3)a.; added sub-subdivision (k)(3)c.; added subsection (n); and made minor stylistic changes.
CASE NOTES
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 153A-349, former G.S. 160A-393, and prior law.
Applicability. - Neither the board of adjustment nor the zoning change applicant were necessary parties to a marina operator's mandamus action seeking to require the zoning administrator to transmit its appeal of a zoning issue to the board as G.S. 160A-393
did not apply. Morningstar Marinas v. Warren County, 233 N.C. App. 23, 755 S.E.2d 75, review denied, 758 S.E.2d 862, 2014 N.C. LEXIS 411 (2014), aff'd, 777 S.E.2d 733, 2015 N.C.
LEXIS 1056 (2015).
Jurisdiction. - In a zoning dispute, a trial court did not lack subject matter jurisdiction due to a failure to join a city as a necessary party; moreover, because the city's participation in the proceedings cured the defect in the petition, the trial court did not err in denying a motion to dismiss the petition. MYC Klepper•randon Knolls L.L.C. v. Bd. of Adjustment for Asheville, 238 N.C. App. 432, 767 S.E.2d 668 (2014).
Trial court properly dismiss citizens' petition for writ of certiorari on the ground that it lacked jurisdiction because the citizens did not properly perfect their appeal from the decision of the county board of commissioners; the citizens were not the applicant before the decision-making board whose decision was appealed, and thus, under the statute,, they were required to name the applicant as a respondent, which they failed to do. Hirschman v. Chatham Cnty., 250 N.C. App. 349, 792 S.E.2d 211 (2016).
In order to avoid the dilemmas the courts have previously faced in attempting to ascertain the required respondents in an appeal of a quasi-judicial decision, the General Assembly specifically listed the required respondents; thus, when an applicant is
granted a conditional-use permit and an outsider appeals the decision through a petition for writ of certiorari but does not include the applicant as a respondent in the appeal, the superior court is without jurisdiction to review
the merits. Hirschman v. Chatham Cnty., 250 N.C. App. 349, 792 S.E.2d 211 (2016).
Standing. - Landowners had standing to contest a county's approval of a site plan for a proposed law enforcement training facility in an agricultural zone because, (1) when the landowners testified to concerns that the alleged unlawful approval of the facility would increase noise levels, had the potential to result in groundwater and soil contamination, and threatened the safety of anyone on the landowners' property due to stray bullets, resulting in a decrease in the landowners' property values, this evidence was sufficient to establish standing to challenge the proposed land use, and (2) the definition of "competent evidence" in G.S. 160A-393(k)(3), excluding lay opinions as to property values, did not affect an analysis of standing. Fort v. County of Cumberland, 218 N.C. App. 401, 721 S.E.2d 350, review denied, 735 S.E.2d 180, 2012 N.C. LEXIS 1045 (2012).
Appellate court had jurisdiction to review a conditional use permit's denial after the applicant withdrew the application because (1) site owners had standing and continued to seek the permit, and (2) the denial was a reviewable final judgment. Dellinger
v. Lincoln Cty., 266 N.C. App. 275, 832 S.E.2d 172 (2019).
Proper Respondent. - Superior court properly dismissed a land owner's amended petition for judicial review under writ of certiorari because the town, and not the town's board of adjustment, was statutorily required to be named as the respondent in the owner's petition for judicial review, the owner's initial petition failed to name the town, while his amended petition named the town, it was filed long after the 30-day statute of limitations for appealing such decisions, and the owner's amended petition did not relate back to his initial petition inasmuch as the town did not waived his failure to name it as the respondent in his initial petition by participating in the hearing on the board of adjustment's motion to dismiss. Azar v. Town of Indian Trail Bd. of Adjustment, 257 N.C. App. 1, 809 S.E.2d 17 (2017).
Residents had standing to participate in special use permit hearings because (1) the applicable ordinance let any member of the public appear and present evidence, and (2) the applicant agreed to allow the residents to intervene in the reviewing trial
court. Little River, LLC v. Lee Cty., 257 N.C. App. 55, 809 S.E.2d 42 (2017), review denied, 818 S.E.2d 692, 2018 N.C. LEXIS 878 (N.C. 2018).
Procedural Bar. - Neighbors were procedurally barred from challenging a county board decision for the first time at the certiorari review hearing where they failed to comply with G.S. 160A-393(c)'s petition filing requirements, thus never perfecting an
appeal from that decision, and they never moved to intervene as a petitioner to intervening-respondents' petition for certiorari review of the decision, nor did they file any responsive pleading, raise any written objection, or
request any relief from that decision. Jeffries v. Cty. of Harnett, 259 N.C. App. 473, 817 S.E.2d 36 (2018), review denied, 372 N.C. 297, 826 S.E.2d
710, 2019 N.C. LEXIS 424 (2019).
Proper Standard of Review. - Trial court conducted a proper review of a decision of a zoning board of adjustment because it conducted a de novo review concerning questions of law, and a "whole record" review concerning issues of fact. Myers Park Homeowners Ass'n v. City of Charlotte, 229 N.C. App. 204, 747 S.E.2d 338 (2013).
In a zoning dispute relating to a billboard sign, a trial court applied the correct standard of review when it affirmed the decision of a city's board of adjustment because it applied whole record review and determined that the board's findings were supported by substantial evidence in the record; moreover, the trial court applied de novo review to the questions of law and determined that the board correctly interpreted and applied the applicable provisions of the city Code of Ordinances and did not commit any errors of law. MYC Klepper•randon Knolls L.L.C. v. Bd. of Adjustment for Asheville, 238 N.C. App. 432, 767 S.E.2d 668 (2014).
Superior court did not err by determining that the decision of a town board of commissioners to demolish an owner's motel was supported by substantial evidence because the evidence of record received at the hearing before the board showed that storms, erosion, tidal action and/or other natural events materially changed the property upon which the structure was located, those changes and the resulting impact on the structure created a hazard, and the structure attracted criminal activity. Six at 109, LCC v. Town of Holden Beach, 238 N.C. App. 469, 767 S.E.2d 400 (2014).
Trial court properly reviewed the denial of a conditional use permit (CUP) de novo because this was the standard used to determine if a developer showed prima facie entitlement to a CUP. PHG Asheville, LLC v. City of Asheville,
262 N.C. App. 231, 822 S.E.2d 79 (2018), aff'd, 374 N.C. 133, 839 S.E.2d 755, 2020 N.C. LEXIS 274 (N.C. 2020).
Error by Board in Interpretation of Ordinance. - Town's board of adjustment erred in interpreting a town development ordinance because the board's interpretation of the ordinance superimposed a limitation upon a property owner's fence that was not found in the ordinance. Lipinski v. Town of Summerfield, 230 N.C. App. 305, 750 S.E.2d 46 (2013).
Superior court erred in affirming a county board of adjustment's order because the board improperly concluded that a property owner was in violation of an ordinance; the board improperly concluded that under the amended ordinance, a change in ownership constituted a change in use and that the owner was required to amend its zoning permit to legally continue the same use of the property because the change of ownership had no impact on the use of the property. Starlites Tech Corp. v. Rockingham Cty., - N.C. App. - , 840 S.E.2d 231 (2020).
Property owner's challenge to a county board of adjustment's interpretation of an ordinance warranted reversal of the board's ultimate decision because the interpretation constituted an error of law. Starlites Tech Corp. v. Rockingham Cty., - N.C. App. - , 840 S.E.2d 231 (2020).
Findings of Fact Not Applicable to Zoning Appeal. - As a trial court sat as an appellate court in an appeal of a decision by a zoning board of adjustment, it did not err in declining to amend and/or alter its order of affirmance in order to issue findings
of fact and conclusions of law because civil procedure rules in that regard were not applicable. Myers Park Homeowners Ass'n v. City of Charlotte, 229 N.C. App. 204, 747 S.E.2d
338 (2013).
Error In Making Findings of Fact. - Superior court erred in reversing a decision by a county board of adjustment that partially affirmed and modified a notice of violations penalizing the owners for violating a zoning ordinance by operating firing ranges
on their property without a site plan and permit because, instead of remanding the case to the board with instructions to make sufficient findings to allow for appellate review or remanding with the instructions necessary to correct
an error of law, the superior court overstepped its role as an appellate tribunal by making its own findings of fact regarding how the ranges were used and who used them relevant to the statutory exception, the federal farm exemption,
and an exception in the county's firing range amendment. Hampton v. Cumberland Cty., 256 N.C. App. 656, 808 S.E.2d 763 (2017), cert granted, 371 N.C. 473,
818 S.E.2d 110 (2018), cert dismissed, 373 N.C. 2, 832 S.E.2d 692, 2019 N.C. LEXIS 911 (2019).
Record Was Adequate. - Record a city provided to the trial court did not deprive homeowners of their right to due process because the record adequately conveyed the substance of the homeowners' missing audio testimony; the record included a copy of the
homeowners' appeal, which appeal included inter an affidavit from one of them, and the homeowners did not specifically identify any other competent or substantial evidence that could be missing and that would have prevented the
trial court from reviewing their claim. Fehrenbacher v. City of Durham, 239 N.C. App. 141, 768 S.E.2d 186 (2015).
Authority to Supplement the Record. - It was not improper for the trial court to request that a telecommunications conglomerate submit photographic simulations of the proposed monopine tower that were included in its original application for the trial court's de novo consideration of whether the board of adjustment erred in ruling that the tower qualified as a concealed wireless communications facility because subsection (j) was not the only provision that vested discretionary authority in the trial court to supplement the record. Fehrenbacher v. City of Durham, 239 N.C. App. 141, 768 S.E.2d 186 (2015).
Trial court did not abuse its discretion in denying a neighbor's motion to supplement the record to include affidavits by the neighbor and a real estate appraiser addressing the issue of standing, when the neighbor challenged a design application for
a house that was submitted by landowners in a historic district, because the affidavits which the neighbor proffered as supplements added very little new substantive information to the already voluminous record and would not have
provided a basis for standing. Cherry v. Wiesner, 245 N.C. App. 339, 781 S.E.2d 871, review denied, 792 S.E.2d 779, 2016 N.C. LEXIS 674 (2016).
Erroneous Denial of Conditional Use Permit. - County commissioners erred in denying a conditional use permit (CUP) to build a solar farm because (1) applicants showed prima facie entitlement to a CUP, as a solar farm was a public utility facility permitted in the zone at issue, and they produced a site plan and competent testimony complying with all CUP requirements and competent, material, and substantial evidence showing compliance with more general zoning requirements, and (2) CUP opponents did not meet their burden with speculative and general lay opinions and bare or vague assertions on a matter requiring scientific, technical or other specialized or personal knowledge outside the experience of an ordinary person. Innovative 55, LLC v. Robeson Cty., 253 N.C. App. 714, 801 S.E.2d 671 (2017).
City erroneously denied a developer a conditional use permit because, (1) inter alia, the developer's expert testified a project would not have a detrimental impact on the value of adjacent property, and (2) the city did not offer any contrary expert testimony. PHG Asheville, LLC v. City of Asheville, 262 N.C. App. 231, 822 S.E.2d 79 (2018), aff'd, 374 N.C. 133, 839 S.E.2d 755, 2020 N.C. LEXIS 274 (N.C. 2020).
City erroneously denied a developer a conditional use permit because, inter alia, the developer did not fail to show a project was in harmony with the neighborhood, as (1) since the proposed use was a conditional use, it had already been determined that the use was in harmony with the neighborhood, and (2) the developer's expert testified to similar uses in the area. PHG Asheville, LLC v. City of Asheville, 262 N.C. App. 231, 822 S.E.2d 79 (2018), aff'd, 374 N.C. 133, 839 S.E.2d 755, 2020 N.C. LEXIS 274 (N.C. 2020).
City erroneously denied a developer a conditional use permit because, inter alia, the developer did not fail to show a project would not cause undue traffic congestion, as the developer's expert so testified, and the city did not offer contrary expert testimony. PHG Asheville, LLC v. City of Asheville, 262 N.C. App. 231, 822 S.E.2d 79 (2018), aff'd, 374 N.C. 133, 839 S.E.2d 755, 2020 N.C. LEXIS 274 (N.C. 2020).
City lacked the authority to deny a requested conditional use permit because the applicant presented competent, material, and substantial evidence-through the testimony of architects, an appraiser, a traffic engineer, a certified planner, and the vice
president of the applicant-that the applicant's proposed construction of a hotel satisfied the relevant conditional use permit standards set out in the city's unified development ordinance. PHG Asheville, LLC v. City of Asheville,
374 N.C. 133, 839 S.E.2d 755 (2020).
§ 160D-1403. Appeals of decisions on subdivision plats.
- When a subdivision regulation adopted under this Chapter provides that the decision whether to approve or deny a preliminary or final subdivision plat is quasi-judicial, then that decision of the board shall be subject to review by the superior court by proceedings in the nature of certiorari. The provisions of G.S. 160D-406 and this section shall apply to those appeals.
- When a subdivision regulation adopted under this Chapter provides that the decision whether to approve or deny a preliminary or final subdivision plat is administrative, then that decision of the board shall be subject to review by filing an action in superior court seeking appropriate declaratory or equitable relief within 30 days from receipt of the written notice of the decision, which shall be made as provided in G.S. 160D-403(b).
- For purposes of this section, a subdivision regulation shall be deemed to authorize a quasi-judicial decision if the decision-making entity under G.S. 160D-803(c) is authorized to decide whether to approve or deny the plat based not only upon whether the application complies with the specific requirements set forth in the regulation but also on whether the application complies with one or more generally stated standards requiring a discretionary decision to be made.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1403.1. Civil action for declaratory relief, injunctive relief, other remedies; joinder of complaint and petition for writ of certiorari in certain cases.
-
Civil Action. - Except as otherwise provided in this section for claims involving questions of interpretation, in lieu of any remedies available under G.S. 160D-405 or G.S. 160D-108(h), a person with standing, as defined in subsection (b) of this section,
may bring an original civil action seeking declaratory relief, injunctive relief, damages, or any other remedies provided by law or equity, in superior court or federal court to challenge the enforceability, validity, or effect
of a local land development regulation for any of the following claims:
- The ordinance, either on its face or as applied, is unconstitutional.
- The ordinance, either on its face or as applied, is ultra vires, preempted, or otherwise in excess of statutory authority.
- The ordinance, either on its face or as applied, constitutes a taking of property.
-
Standing. - Any of the following criteria provide standing to bring an action under this section:
- The person has an ownership, leasehold, or easement interest in, or possesses an option or contract to purchase the property that is the subject matter of a final and binding decision made by an administrative official charged with applying or enforcing a land development regulation.
- The person was a development permit applicant before the decision-making board whose decision is being challenged.
- The person was a development permit applicant who is aggrieved by a final and binding decision of an administrative official charged with applying or enforcing a land development regulation.
- Time for Commencement of Action. - Any action brought pursuant to this section shall be commenced within one year after the date on which written notice of the final decision is delivered to the aggrieved party by personal delivery, electronic mail, or by first-class mail.
- Joinder. - An original civil action authorized by this section may, for convenience and economy, be joined with a petition for writ of certiorari and decided in the same proceedings. The Rules of Civil Procedure govern the parties for the claims raised in the original civil action. The record of proceedings in the appeal pursuant to G.S. 160D-1402 shall not be supplemented by discovery from the civil action unless supplementation is otherwise allowed under G.S. 160D-1402(i). The standard of review in the original civil action for the cause or causes of action pled as authorized by subsection (a) of this section is de novo. The standard of review of the petition for writ of certiorari is the standard established in G.S. 160D-1402(j).
- Action Not Rendered Moot by Loss of Property. - Subject to the limitations in the State and federal constitutions and State and federal case law, an action filed under this section is not rendered moot, if during the pendency of the action, the aggrieved person loses the applicable property interest as a result of the local government action being challenged and exhaustion of an appeal described herein is required for purposes of preserving a claim for damages under this section.
- Stays. - An appeal under this section is stayed as provided in G.S. 160D-405.
- Definitions. - The definitions in G.S. 143-755 apply in this section.
If the decision being challenged is from an administrative official charged with enforcement of a local land development regulation, the party with standing must first bring any claim that the ordinance was erroneously interpreted to the applicable board of adjustment pursuant to G.S. 160D-405. An adverse ruling from the board of adjustment may then be challenged in an action brought pursuant to this subsection with the court hearing the matter de novo together with any of the claims listed in this subsection.
History
(2020-25, ss. 46, 50(b).)
Editor's Note. - Session Laws 2020-25, s. 52, made this section effective June 19, 2020.
Session Laws 2020-25, s. 50(b), effective June 19, 2020, provides: "Sections 5, 10, 14, 16, 17, 18, 45, 46, 47, [which amended or enacted 160D-108, 160D-108.1, 160D-405, 160D-603, 160D-703, 160D-705, 160D-706, 160D-1402, 160D-1403.1, 160D-1403.2, respectively]
and the amendments to G.S. 160D-1405(c) in Section 48 incorporate in Chapter 160D of the General Statutes the provisions of Sections
1.2, 1.3, 1.6, 1.7, 1.8, 1.9, 1.10, 1.12, 1.13, 1.14, 1.15, and 1.17 of S.L. 2019-111 [which amended or enacted former 160A-360.1, 153A-320.1, 160A-385, 160A-385.1, 153A-344, 153A-344.1, 160A-388, 160A-393.1, 160A-364.1, 160A-393,
160A-393.2, 160A-381, 153A-340, 160A-382, 153A-342, 153A-346, and 160A-390, respectively], clarify and restate the intent of existing law, and apply to ordinances adopted before, on, and after the effective date of this act."
§ 160D-1403.2. No estoppel effect when challenging development conditions.
A local government may not assert before a board of adjustment or in any civil action the defense of estoppel as a result of actions by the landowner or permit applicant to proceed with development authorized by a development permit as defined in G.S. 143-755 if the landowner or permit applicant is challenging conditions that were imposed and not consented to in writing by a landowner or permit applicant.
History
(2020-25, ss. 47, 50(b).)
Editor's Note. - Session Laws 2020-25, s. 52, made this section effective June 19, 2020.
Session Laws 2020-25, s. 50(b), effective June 19, 2020, provides: "Sections 5, 10, 14, 16, 17, 18, 45, 46, 47, [which amended or enacted 160D-108, 160D-108.1, 160D-405, 160D-603, 160D-703, 160D-705, 160D-706, 160D-1402, 160D-1403.1, 160D-1403.2, respectively]
and the amendments to G.S. 160D-1405(c) in Section 48 incorporate in Chapter 160D of the General Statutes the provisions of Sections
1.2, 1.3, 1.6, 1.7, 1.8, 1.9, 1.10, 1.12, 1.13, 1.14, 1.15, and 1.17 of S.L. 2019-111 [which amended or enacted former 160A-360.1, 153A-320.1, 160A-385, 160A-385.1, 153A-344, 153A-344.1, 160A-388, 160A-393.1, 160A-364.1, 160A-393,
160A-393.2, 160A-381, 153A-340, 160A-382, 153A-342, 153A-346, and 160A-390, respectively], clarify and restate the intent of existing law, and apply to ordinances adopted before, on, and after the effective date of this act."
§ 160D-1404. Other civil actions.
Except as expressly stated, this Article does not limit the availability of civil actions otherwise authorized by law or alter the times in which they may be brought.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
§ 160D-1405. Statutes of limitation.
- Zoning Map Adoption or Amendments. - A cause of action as to the validity of any regulation adopting or amending a zoning map adopted under this Chapter or other applicable law or a development agreement adopted under Article 10 of this Chapter accrues upon adoption of the ordinance and shall be brought within 60 days as provided in G.S. 1-54.1.
- Text Adoption or Amendment. - Except as otherwise provided in subsection (a) of this section, an action challenging the validity of a development regulation adopted under this Chapter or other applicable law shall be brought within one year of the accrual of such action. Such an action accrues when the party bringing such action first has standing to challenge the ordinance. A challenge to an ordinance on the basis of an alleged defect in the adoption process shall be brought within three years after the adoption of the ordinance.
- Enforcement Defense. - Nothing in this section or in G.S. 1-54(10) or G.S. 1-54.1 bars a party in an action involving the enforcement of a development regulation or in an action under G.S. 160D-1403.1 from raising as a claim or defense in the proceedings the enforceability or the invalidity of the ordinance. Nothing in this section or in G.S. 1-54(10) or G.S. 1-54.1 bars a party who files a timely appeal from an order, requirement, decision, or determination made by an administrative official contending that the party is in violation of a development regulation from raising in the judicial appeal the invalidity of the ordinance as a defense to the order, requirement, decision, or determination. A party in an enforcement action or appeal may not assert the invalidity of the ordinance on the basis of an alleged defect in the adoption process unless the defense is formally raised within three years of the adoption of the challenged ordinance.
- Termination of Grandfathered Status. - When a use constituting a violation of a zoning or unified development ordinance is in existence prior to adoption of the zoning or unified development ordinance creating the violation, and that use is grandfathered and subsequently terminated for any reason, a local government shall bring an enforcement action within 10 years of the date of the termination of the grandfathered status, unless the violation poses an imminent hazard to health or public safety.
- Quasi-Judicial Decisions. - Unless specifically provided otherwise, a petition for review of a quasi-judicial decision shall be filed with the clerk of superior court by the later of 30 days after the decision is effective or after a written copy thereof is given in accordance with G.S. 160D-406(j). When first-class mail is used to deliver notice, three days shall be added to the time to file the petition.
- Others. - Except as provided by this section, the statutes of limitations are as provided in Subchapter II of Chapter 1 of the General Statutes.
History
(2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 48, 50(b), 51(a), (b), (d).)
Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.
Session Laws 2020-25, s. 50(b), effective June 19, 2020, provides: "Sections 5, 10, 14, 16, 17, 18, 45, 46, 47, [which amended or enacted 160D-108, 160D-108.1, 160D-405, 160D-603, 160D-703, 160D-705, 160D-706, 160D-1402, 160D-1403.1, 160D-1403.2, respectively] and the amendments to G.S. 160D-1405(c) in Section 48 incorporate in Chapter 160D of the General Statutes the provisions of Sections 1.2, 1.3, 1.6, 1.7, 1.8, 1.9, 1.10, 1.12, 1.13, 1.14, 1.15, and 1.17 of S.L. 2019-111 [which amended or enacted former 160A-360.1, 153A-320.1, 160A-385, 160A-385.1, 153A-344, 153A-344.1, 160A-388, 160A-393.1, 160A-364.1, 160A-393, 160A-393.2, 160A-381, 153A-340, 160A-382, 153A-342, 153A-346, and 160A-390, respectively], clarify and restate the intent of existing law, and apply to ordinances adopted before, on, and after the effective date of this act."
Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:
"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or
"(2) July 1, 2021."
Effect of Amendments. - Session Laws 2020-25, s. 48, effective June 19, 2020, substituted "or in an action under G.S. 160D-1403.1 from raising as a claim or defense in the proceedings the enforceability or the invalidity" for "from raising as a defense in such proceedings the invalidity" in the first sentence of subsection (c); added subsection (c1); and made minor stylistic changes throughout.
CASE NOTES
Editor's Note. - Most of the cases cited under this section were decided under former G.S. 160A-364.1, and prior law.
Public Policy Includes Need for Finality in Zoning Matters. - Zoning claims raised important public policy considerations, and there is a strong need for finality with respect to zoning matters so that landowners may use their property without fear of
challenge years after zoning has apparently been determined. Pinehurst Area Realty, Inc. v. Village of Pinehurst, 100 N.C. App. 77, 394 S.E.2d 251 (1990), review denied and appeal
dismissed, 328 N.C. 92, 402 S.E.2d 417, cert. denied, 501 U.S. 1251, 111 S. Ct. 2890, 115 L. Ed. 2d 1055 (1991).
Plaintiff's challenge to zoning law based on alleged state and federal constitutional violations was not subject to three-year personal injury statute of limitations, but rather, was subject to the nine-month period contained in this section. Pinehurst
Area Realty, Inc. v. Village of Pinehurst, 100 N.C. App. 77, 394 S.E.2d 251 (1990), review denied and appeal dismissed, 328 N.C. 92, 402 S.E.2d 417,
cert. denied, 501 U.S. 1251, 111 S. Ct. 2890, 115 L. Ed. 2d 1055 (1991).
Limitations Period Set Out in G.S. 1-54.1 and G.S. 160A-364.1 for Challenges to Zoning Ordinances Did Not Apply to Challenges to the Constitutionality of Subdivision Ordinance Provisions. - Trial court incorrectly found that the action of a neighborhood
association and property owners against a property developer, a city, and city planning commission was barred under G.S. 1-54.1 or G.S. 160A-364.1. The particular local ordinance provisions that the association and the property
owners attempted to challenge were included in the city's subdivision, rather than its zoning, ordinance, and the limitations period relating to challenges to zoning ordinances set out in G.S. 1-54.1 and G.S. 160A-364.1 did not
apply to challenges to the constitutionality of subdivision ordinance provisions of the type at issue in the present case. Coventry Woods Neighborhood Ass'n v. City of Charlotte, 202 N.C. App. 247, 688 S.E.2d 538 (2010), appeal dismissed, 364 N.C. 128, 695 S.E.2d 757, 2010 N.C. LEXIS 363 (N.C. 2010).
Injury in Clear and Concrete Fashion. - Plaintiffs' cause of action, for statute of limitations purposes, arose at the time the city's billboard ordinance first became effective because it was then that the regulation injured plaintiffs' property in clear
and concrete fashion. Capital Outdoor Adv., Inc. v. City of Raleigh, 337 N.C. 150, 446 S.E.2d 289 (1994).
Challenge to Zoning Amendment Barred. - Challenge by plaintiffs to 1975 amendment prohibiting duplexes in R-1 districts as being violative of the purposes of zoning was barred by the statute of limitations of G.S. 1-54.1, even though the ordinance was already in effect when plaintiffs acquired their interest in the property. Sherrill v. Town of Wrightsville Beach, 81 N.C. App. 369, 344 S.E.2d 357, cert. denied and appeal dismissed, 318 N.C. 417, 349 S.E.2d 600 (1986).
Where every landowner affected by zoning change was informed by letter that planning board would make a recommendation to the board based upon public hearing and where plaintiffs were given a full public hearing on their petition to "downzone" the property at issue, plaintiffs were given proper notice and had the opportunity to remedy their lack of diligence; therefore, the statute of limitations barred plaintiff's action challenging the zoning change. Bryan v. Raynor, 94 N.C. App. 91, 379 S.E.2d 880, cert. denied, 325 N.C. 707, 388 S.E.2d 448 (1989).
Landowner's challenges to zoning ordinance amendments were time-barred under the two-month limitations period of G.S. 160A-364.1; even if an amendment was adopted inconsistent with the notice requirements of G.S. ch. 160A, an action which attacked the
validity of the amendment but was commenced in more time than the statutory period from the adoption of the amendment was barred. Templeton v. Town of Boone, 208 N.C. App. 50,
701 S.E.2d 709 (2010).
Failure to Record Land Descriptions Not Fatal. - Because the city substantially complied with G.S. 160A-360 although it failed to timely record the map or written description of the ordinance in which it exercised extraterritorial jurisdiction, the plaintiff-store
owner was barred from attacking the validity of the ordinance based on procedural grounds by the statute of limitations provided in this section. Potter v. City of Hamlet, 141 N.C. App. 714, 541 S.E.2d 233, cert. denied, 355 N.C. 379, 547 S.E.2d 814 (2001).
Judicial Review. - While the legal principles involved in the review of zoning issues were relevant as to a review of design guidelines for new structures erected within a town's historic district, the zoning statutes did not limit how an applicant for
a certificate of appropriateness was to seek judicial review. Meares v. Town of Beaufort, 193 N.C. App. 96, 667 S.E.2d 239 (2008).