NC Planning

The Definition of a Subdivision in North Carolina

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
June 2002

The definition of a subdivision is set forth in G.S. 153A-335 for counties and 160A-376 for cities.  It includes all divisions of land into two or more lots for purpose of sale or building development.  Divisions of land for purposes other than for sale or development are not “subdivisions” subject to local regulation.  For example, the court has ruled that a division of land among heirs in order to settle an estate is not a “subdivision.”  Williamson v. Avant, 21 N.C.App. 211, 203 S.E.2d 634, cert. denied, 285 N.C. 596 (1974). 

One point of legal controversy is the question of whether creating one new lot is a subdivision.  The Attorney General's office in 1975 expressed an opinion that creation of one lot for sale or development is not a subdivision so long as no streets are created and there is no intent to sell or develop the remainder of the larger tract from which the single new lot is being created.  44 Op. Att'y Gen. 251 (1975).  That opinion goes on to say that any additional lots created out of that larger parcel would constitute a subdivision, even if done one at a time.  Other attorneys have concluded that even the first lot would constitute a subdivision since the statute says a division into two or more lots is a subdivision and there are two lots (the remainder of the original parcel and the new lot) existing as of the creation of even one lot for conveyance out of the larger tract.  While this later view now seems to be the most common and more persuasive interpretation of the statute, only a court opinion or a clarification of the statute by the legislature can resolve this question.

A second point of legal uncertainty is the question of locally adopted exemptions.  The statute automatically exempts four specific situations from the definition of a subdivision:  (1) certain recombinations of previously subdivided lots; (2) creation of lots larger than ten acres if no street dedications are involved; (3) certain road acquisitions; and (4) creation of three or fewer lots, provided the initial tract is not larger than two acres and there are no street dedications.  If a subdivision meets one of these four tests it may not be regulated under city or county subdivision ordinances.  For example, the court held that a division into lots slightly greater than ten acres with only private easements for access (no public roads being dedicated) can not be regulated as a subdivision.  Three Guys Real Estate v. Harnett County, 345 N.C. 468, 480 S.E.2d 681 (1997).

There is, however, uncertainty as to whether counties can create additional exemptions from county subdivision regulation (in addition to the four statutory exemptions noted above).  Many lawyers have taken the position that the definition in the state statutes is mandatory and must be used exactly in local ordinances, reasoning that the state definition preempts local variations.  As a result some local governments interested in exempting certain subdivisions from local ordinances have secured local legislation specifically authorizing this. Recent examples of legislation allowing additional local exemptions include: 

• Henderson County, 1990 (Ch. 863), exempting intrafamily subdivisions;

• Stanley County, 1994 (Ch. 574), exempting five acre lots if certain right of way conditions are met;

• Robeson County, 1994 (Ch. 638), exempting two and a half acre lots if certain right of way conditions are met;

• Davie County, 1995 (Ch. 78), exempting lots over five acres if specified conditions are met;

• Montgomery County, 1995 (Ch. 337), exempting some intrafamily transfers, some lots over five acres, and some subdivisions with less than ten lots of an acre each. 

• Rose Hill 1996 (Ch. 565) to add exemptions for three lot subdivisions in the ETJ that meet specified standards and divisions within specified zoning districts;

• Harnett County and its municipalities, 1997 (Ch. 246) and 2001 (Ch. 50), exempting one-time divisions of land by any method of transfer among members of a immediate family;

• Stanly County, 1998 (Ch. 37) amending previous local legislation to exempt divisions of land into parcels greater than ten acres if no street right-of-way dedication is involved;

• Jones County, 1999 (Ch. 125), exempting lots over five acres with no street right of way dedications;

• Richmond County, 2000 (Ch. 11) exempting divisions into parcels greater than five acres with no street right-of-way dedications.

The alternative view is that the definition of a subdivision in the statutes sets the boundary of regulation that local governments may, but are not required, to cover.  Since subdivision regulations are optional, it seems reasonable that if the county can choose not to regulate subdivisions at all it can choose to regulate some but not all subdivisions as defined by the state statute, especially given the directive in G.S. 153A-4 and 160A-4 for a broad interpretation of grants of authority to cities and counties.  Several local governments follow this rationale and have adopted exemptions without local legislation. 

As an alternative to securing local legislation, an expedited "minor plat" review process can be used to resolve this matter.  Some local governments that wanted less detailed regulations of some minor subdivisions have resolved this legal question not by exempting minor subdivisions but by establishing a shortened, simplified review process for them.  This is the safest way to address the issue and can be accomplished by an amendment to the subdivision ordinance.