Published Notice for Hearings on Rezonings and Zoning Text Amendments

David W. Owens, Professor, Institute of Government, The University of North Carolina at Chapel Hill, CB# 3330, Knapp Building, UNC-CH, Chapel Hill, N.C. 27599-3330
May 1998

A local government must publish in a newspaper of general circulation two notices of the governing board's required public hearing on the proposed adoption, amendment, or repeal of a zoning ordinance. The notice must be sufficiently detailed to allow citizens to discern what is being proposed and whether they would be affected. State statutes do not require posting of a sign on the site of a proposed rezoning, but a number of zoning ordinances add that requirement. [1]

G.S. 160A-364 for cities and G.S. 153A-323 for counties require published notice of the required public hearing. The notice must be published in a newspaper of general circulation in the community once a week for two successive calendar weeks, with the first notice being published not less than ten nor more than twenty-five days before the hearing. The day of publication is not counted in computing these times, but the day of the hearing is included.

The court first addressed this required public notice of the mandated hearing in 1960 in Walker v. Town
of Elkin.[2] The town rezoned a 3.56-acre tract from a residential to a neighborhood business district and amended the text of the zoning ordinance to allow utility storage yards in that district. The newspaper notice stated that both changes would be "thoroughly discussed" and that "[a]ll persons for or against these proposed changes are invited to be present and make whatever statements they desire."[3] The court held that this was an adequate public notice.

The following year in Helms v. City of Charlotte, the court gave more detailed consideration of the extent of notice that was required.[4] The only notice provided was a newspaper advertisement that gave a boundary description of the area being rezoned but did not include lot or block numbers or the owners' names. The plaintiff in this case had no actual knowledge of the hearing or the ordinance amendment (the case predated the subsequently enacted requirement of mailed notice to the affected property owners). The plaintiff contended that although the statutory public-notice requirements had been met, his constitutional rights of due process had been violated. The court disagreed and held that actual notice to landowners was not constitutionally required.[5]

The published notice must provide sufficient detail to apprise interested parties of the nature of the proposed action. The notice should clearly indicate: (1) what property is potentially affected; (2) the nature of the proposed regulation; and, (3) the time and place of the public hearing on the proposal. A legal description of the property affected is required.[6] The full text of the proposed ordinance does not have to be published.[7] However, mere recitation of the statutes involved with the date and the time of the hearing is inadequate. For example, when Asheville first extended its zoning ordinance extraterritorially, the public notice said only that the hearing concerned "the adoption of an ordinance amending and revising Ordinance No. 322, as amended, the Zoning Ordinance of the City of Asheville." The court of appeals held this to be inadequate:

By reading the notice, even the most diligent owner of property outside the city would have no reasonable cause to suspect that his property might be affected by the City's contemplated amendment to its ordinance. To be adequate, the notice of public hearing required by G.S. 160A-364 must fairly and sufficiently apprise those whose rights may be affected of the nature and character of the action proposed. [8]

On the other hand, the court upheld the adequacy of a notice of a zoning text amendment that added "government owned buildings, facilities, and institutions" to a list of permitted uses in the face of a challenge by neighbors objecting to subsequent location of a state prison on the site.[9]

1. For example, the Forsyth County zoning ordinance provides:

In all cases of petitions to amend a zoning classification, the property shall be posted with a notice of the public hearing by the planning board at least fifteen (15) days prior to the date of said public hearing before the planning board. Said notice shall consist of a sign(s) posted on the property at a conspicuous location(s). Locations that are not conspicuous or require additional notification to the public, will be required to have a directional sign(s) posted. Each sign(s) or each directional sign(s) will have a charge of fifty dollars ($50) to the petitioner. The signs are and shall remain the property of the governmental agency which provided them and shall be prepared, posted, and reclaimed by it.

FORSYTH COUNTY CODE § 23-16.A(6). The Gastonia zoning ordinance provides that "when feasible" a sign of at least 1' x 2' is to be posted and maintained on the site of a proposed rezoning for at least fifteen days before the public hearing. GASTONIA CODE § 25-68(b).

2. 254 N.C. 85, 118 S.E.2d 1 (1960).

3. Id. at 86, 118 S.E.2d at 3.

4. 255 N.C. 647, 122 S.E.2d 817 (1961).

5. Subsequently the court of appeals held in Capps v. City of Raleigh, 35 N.C. App. 290, 241 S.E.2d 527 that actual personal notice of a proposed rezoning was not required and that the city could raise a laches defense based on constructive notice that met all the statutory notice requirements. In this case the city published notice of the public hearing, mailed notice to nearby residents, and posted signs on the property advertising the hearing.

6. Capps v. City of Raleigh, 35 N.C. App. 290, 241 S.E.2d 527 (1978).

7. Although not explicitly required by the statute, a copy of the full text of the proposed ordinance or amendment should be available for public inspection at the time the notice is published.

8. Sellers v. City of Asheville, 33 N.C. App. 544, 549, 236 S.E.2d 283, 286 (1977). By contrast, in In re Raynor, 94 N.C. App. 91, 379 S.E.2d 880, rev. denied, 325 N.C. 546, 385 S.E.2d 495 (1989), the court upheld the adequacy of a notice by the town of Garner stating that its purpose was "to consider proposed zoning and proposed long-range land use plans within the area recently added to the Town's extraterritorial jurisdiction." The notice went on to provide a "rough description" of the area affected using major streets as boundaries.

9. Carter v. Stanly County, 125 N.C. App. 628, 482 S.E.2d 9, rev. denied, 346 N.C. 276, 487 S.E.2d 540 (1997). The court observed:

The mere fact the notice provided was so generic that it did not pique plaintiffs' interest does not, in and of itself, make the notice violative of § 160A-364. We are mindful that, in the eyes of a property owner, abutting a state prison is quite a different thing from abutting a veteran's service office. However, we are a judicial, not a political, body. Since the Commission has adhered to the letter of the law, plaintiffs' true remedy in this case is a political one, and that we cannot give.

Id. at 635.