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NC Planning |
Key Legal IssuesIndividual Mailed Notice of Hearings on Rezonings David W. Owens, Professor The General Assembly in the mid 1980s added statutory requirements for actual notice to be provided to those most directly affected by zoning ordinance decisions. In 1985 the General Assembly amended the zoning enabling act to require individual mailed notice to the parties most directly affected by certain legislative zoning decisions.[1] The exact formulation of the mailed notice requirement has been subject to frequent legislative modification. In 1987 the provision was amended to exempt the total rezoning of an entire community from the requirement for a mailed notice.[2] The exemption was itself modified in 1990 to require mailed notice in a total rezoning if the rezoning involved down zoning, or zoning to a less intense use.[3] The requirements for mailed notice were also subject to perhaps more modification by local legislation than any other mandated zoning procedure-some thirty-one local bills on the subject were enacted between 1985 and 1993. The exemptions were rewritten in 1993 to create five exceptions to the mailed notice requirement and to repeal most of the local modifications to the statute.[4] Finally, in 1995 the legislature completely rewrote the mailed notice requirement and repealed all local modifications. [5] The relevant portion of G.S. 160A-384 now provides:
G.S. 153A-343 contains a substantially similar requirement for counties. These requirements are summarized below: Summary of Requirements
Most aspects of the requirements are clear. The mailed notice need be made only by first class mail. It does not have to be registered or return-receipt mail; the certificate of the mailer serves as proof of compliance (absent an element of fraud). Some individual zoning ordinances do require certified mail, and some zoning offices use it as a matter of office policy, but it is not required by statute. The notice is to be mailed to the owners as identified by the county tax records. An updated title search is not required. The notice is to be mailed in the same time period that the initial newspaper notice is published-at least ten but not more than twenty-five days prior to the public hearing in the proposed rezoning. The content of the mailed notice should be the same as the content of the published notice. The option to use an expanded published notice instead of individual mailed notice rests with the local government. The expanded published notice can only be used if there are at least fifty parcels owned by at least fifty different owners involved in the rezoning. If the four half page advertisements are used in lieu of a mailing, letters must still be sent to any landowners who reside outside of the newspaper’s area of circulation. If the expanded notice is used, the local government must also post a notice of the hearing on the site. Finally, the 1985 session law establishing the mailed-notice requirement states that it applies only when tax maps are available for the area to be zoned. [6] Several other aspects of the mailed-notice requirement are not as clear. The first uncertainty is its scope. Mailed notice is required for all “zoning map amendments.” This clearly includes rezonings that amend zoning district boundaries. It also includes application of new overlay zones. It does not apply to the initial adoption of zoning for a jurisdiction, as this is an “adoption” rather than an “amendment” of the zoning map. The application is less clear when an existing ordinance is amended to add new territory to the coverage of a zoning ordinance, as when a city annexes territory or a county with partial county zoning moves to full county zoning. The statutes provide an explicit answer for counties-G.S. 153A-343(c) provides that no mailing is required when territory is added to county zoning coverage. However, a comparable provision exempting cities from making a mailed notice when territory is added to its zoning coverage through annexation or extension of extraterritorial boundaries in zoning was deleted from the bill prior to its adoption. Therefore it is likely that application of initial city zoning to a parcel added to an existing ordinance does require a mailed notice (as this is an “amendment” to the city’s zoning map to add additional territory). A second uncertainty concerns who is an “abutting” owner and must be sent a mailed notice. For example, if only part of a parcel owned by one individual is being rezoned, is that individual both the owner and the owner of the abutting property? Such an interpretation would be consistent with the case law on protest petitions (see the next section). However, the language of this statute specifically refers to the abutting parcel of land, so presumably the owner of whatever is shown as a separate parcel on the county tax maps is the appropriate recipient of the notice. As a matter of practice, some local governments send a mailed notice to whoever would qualify to sign a protest petition, whether or not they are technically owners of abutting parcels of land. Another common practice is to mail to all property owners within a specified distance from the parcel affected, such as those within 500 feet, a practice facilitated by the increasing availability of local geographic information systems. A final uncertainty concerns who makes the mailing. The statute does not require the local government to do it. Several ordinances require anyone petitioning for a rezoning to make the mailing. This is accomplished by requiring the person to do the mailing and provide a certificate that it was done, or to provide stamped, addressed envelopes to the local government to deposit in the mail.[7] Other local governments just require that a list of those to receive a mailed notice be provided as part of any petition for a rezoning.
1985 N.C. Sess. Laws ch. 595. The statute originally used the term “zoning classification action” to trigger the mailed notice requirement, a term not defined in the statute. Also, some local zoning ordinances had provisions for mailed notices prior to the enactment of the statewide requirement. See, e.g., Lee v. Simpson, 44 N.C. App. 611, 261 S.E.2d 295, rev. denied, 299 N.C. 737, 267 S.E.2d 662 (1980). 2.1987 N.C. Sess. Laws ch. 807. 3.1989 N.C. Sess. Laws (1990 Reg. Sess.) ch. 980. 4.1993 N.C. Sess. Laws ch. 469. 5.1995 N.C. Sess. Laws ch. 546 specified that all previous local bills on this subject are repealed to the extent they conflict with the revised provisions of G.S. 160A-384. 6.1985 N.C. Sess. Laws ch. 595, § 3. See Frizzelle v. Harnett County, 106 N.C. App. 234, 416 S.E.2d 421, rev. denied, 332 N.C. 147, 419 S.E.2d 571 (1992), in which the court of appeals held that the mailed-notice provision of G.S. 153A-343 did not apply because tax maps were not available for the area. However, in this case the ordinance itself required mailed notice and posting, which was not done. The court held that these ordinance requirements applied to initial adoption as well as to rezoning. The court also held that because the county had failed to raise the nine-month statute of limitations in its answer or to give notice of the statute to the plaintiff when the statute was raised in response to a summary judgment motion, it was waived. 7.For example, the Wilmington zoning ordinance provides that a rezoning petition is not complete unless it includes a list of the names of owners, their addresses, and the tax parcel numbers of all adjacent properties and properties directly across the street from the property to be rezoned, plus stamped and addressed envelopes for each such owner. The planning department is required to mail a notice describing the petition and the hearing on it at least ten days before the hearing, in the provided envelopes. WILMINGTON CODE § 19-110. |
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