November, 2005
Local Ordinance Amendments to Secure Compliance with 2005 Legislation
David Owens
Richard Ducker
UNC-CH
In 2005 the General Assembly adopted two major bills that amend the state’s planning and development regulation statutes, S. 518 and S. 814. Several other bills making individual changes were also adopted.
The checklist below highlights the potential changes in local zoning, subdivision, and development ordinances that need to be considered as a result. Most of the state law amendments take effect on January 1, 2006. Exceptions are the provisions on moratoria, city zoning of state lands without a involvement of a building, and restrictions on flag regulations, all of which are already effective.
The table below lists the topics that need to be considered. For each item, the table lists the reference to the new statute involved, the section of the bill amending the statute, a brief explanation of the provision, and the relation of the statutory language to the need to amend local ordinances. In many cases where the law involves a statutory mandate it will be useful or even necessary for local land development ordinances to be amended. In other cases the legislation takes the form of enabling authority so that local governments will need to choose whether to take advantage of new options. In any event it is important that local ordinances not include anything that is contrary to state law.
In the chart below “Z/UD” refers to a zoning ordinance or to a unified development ordinance. The letters “S/UD” refers to a land subdivision ordinance or to a unified development ordinance. “LG” refers to a local government (city or county).
A second chart (using this same format and order of presentation) that also includes the new statutory language that is involved for each of these items is available on line from IOG. A link to that chart is posted at: http://www.sog.unc.edu/organizations/planning/legisinfo/StatWorkSheet-StatLanguage.htm.
|
Item |
Topic |
Statute |
Bill |
Explanation |
Relation to Local Ordinance |
|
1. |
Planning board reviews |
G.S. 160A- 387 G.S. 153A-344 |
S. 518, Sec. 7 |
Requires referral of all proposed zoning amendments to planning board for review and comment |
Statutory mandate. Conforming amendment to Z/UD ordinance highly recommended. Also check ordinance establishing planning board for possible amendment. |
|
2. |
Planning board conflict of interest |
G.S. 160A-381(d) G.S. 153A-340(g) |
S. 814, Sec. 5 |
Prohibits participation on any zoning amendment recommendation by member with direct, substantial financial interest |
Statutory mandate. Conforming amendment to Z/UD ordinance or ordinance creating planning board recommended. Check also for possible amendment to PB rules of procedure |
|
3. |
Planning board statement |
G.S. 160A-383 G.S. 153A-341 |
S. 814, Sec. 7 |
Requires written recommendation from planning board on all proposed zoning amendments; requires that recommendation address plan consistency. |
Statutory mandate. Conforming amendment to Z/UD ordinance recommended. Amendment may also identify plan(s) referred to and set forth standards for determining consistency |
|
4. |
Published hearing notices |
G.S. 160A- 384(b) G.S. 153A-343(b) |
S. 518, Sec. 4 |
Reduces required alternative half-page published notices for large rezonings from four to two times |
Relaxes a particular notice requirement. Conforming amendment to Z/UD ordinance recommended. Failure to amend ordinance may result in ordinance requirements that exceed state standards. |
|
5. |
Posted hearing notices |
G.S. 160A- 384(c) G.S. 153A-343(d) |
S. 518, Sec. 4 |
Requires on-site posting for all proposed zoning map amendments |
Statutory mandate. Conforming amendment to Z/UD ordinance practically essential. |
|
6. |
Mailed hearing notices |
G.S. 153A-343(c) |
S. 518, Sec. 4 |
Requires mailed notice when counties initially zone property |
Statutory mandate with limited applicability. Conforming amendment to county Z/UD ordinances recommended, but counties with countywide zoning may choose to ignore |
|
7. |
Protest petition applicability |
G.S. 160A-385(a) |
S. 518, Sec. 5 |
Requires that protest petitions only apply to zoning map amendments; no longer applicable to text amendments |
Statutory mandate. Conforming amendment to Z/UD ordinance recommended, even though overwhelming majority of such petitions protest map, not text, amendments |
|
8. |
Protest petition voting |
G.S. 160A-385(a) |
S. 518, Sec. 5 |
Requires that vacant seats and members who are recused from voting not be considered in calculation of three-fours majority |
Statutory mandate. Conforming amendment to municipal Z/UD ordinance amendment practically essential since rule might otherwise be overlooked |
|
9. |
Protest petition qualifying area |
G.S. 160A-385(a) |
S. 518, Sec. 5 |
Requires that area for valid protest be 20% of area included or 5% of 100-foot perimeter buffer; requires that property boundary be used to compute buffer if less that full parcel proposed for rezoning |
Statutory mandate. Conforming amendment to municipal Z/UD ordinance practically essential since failure to determine properly the validity of petition can affect validity of rezoning |
|
10. |
Protest petition applicability |
G.S. 160A-385(a) |
S. 518, Sec. 5 |
Limits applicability of protest petition for some conditional zoning amendments (same as for CUD amendments) |
Statutory mandate. Conforming amendment to municipal Z/UD ordinance recommended for those cities using or intending to use conditional zoning |
|
11. |
Protest petition verification |
G.S. 160A-386 |
S. 518, Sec. 6 |
Requires that petitioner can withdraw protest any time up to vote on rezoning |
Statutory mandate. Conforming amendment to municipal Z/UD ordinance recommended |
|
12. |
Governing board conflict of interest |
G.S. 160A-381(d) G.S. 153A-340(g) G.S. 160A-75; G.S. 153A-44 |
S. 814, Sec. 5, 5.1 |
Prohibits participation on any zoning amendment decision by member with direct, substantial financial interest |
Statutory mandate. Conforming amendment to Z/UD ordinance recommended. Consider also possible amendment to governing board’s rules of procedure, if any. |
|
13. |
Conditional zoning |
G.S. 160A-382(a) G.S. 153A-342(a) |
S. 814, Sec. 6 |
Allows use of purely legislative conditional zoning |
Enabling statute. Boilerplate from statute need not be incorporated into Z/UD ordinance. Provides opportunity for LG to consider whether conditional zoning is an appropriate technique for that LG to use. |
|
14. |
Conditions in CUD, SUD, Conditional zones |
G.S. 160A-382(b) G.S. 153A-342(b) |
S. 814, Sec. 6 |
Requires that site specific conditions in zoning districts be limited to those needed for conformance to plan, ordinance, or to address project impacts |
Statutory mandate. Conforming amendment to Z/UD ordinance recommended. Amendment may identify the plan to which conditions must conform. |
|
15. |
Statement for small-scale rezonings |
G.S. 160A-382(b) G.S. 153A-342(b) |
S. 814, Sec. 6 |
Requires statement analyzing reasonableness for all small-scale rezonings (also see # 16) |
Statutory mandate. Conforming amendment to Z/UD ordinance strongly recommended. May provide opportunity to designate who prepares such statement, when it is prepared, and how it is to be used. |
|
16. |
Governing board statement |
G.S. 160A-383 G.S. 153A-341 |
S. 814, Sec. 7 |
Requires written statement on all zoning amendment decisions (adoption and rejections); requires that statement address plan consistency, reasonableness, and public interests furthered. |
Statutory mandate. Conforming amendment to Z/UD ordinance strongly recommended. May provide opportunity to identify “an adopted comprehensive plan”. May also provide opportunity to clarify what it means for governing board to “reject” a proposed zoning amendment. |
|
17. |
Government land |
G.S. 160A-392 |
S. 669 |
Repeals provision that made governmental use of land with no building involved subject to city zoning |
Statutory mandate. Conforming amendment to Z/UD ordinance not essential. Ordinance should be checked to ensure conformity with legislation. |
|
18. |
Regulation of flags |
G.S. 144-7.1 |
H. 829 |
Limits regulation of official national and state flags; allows reasonable regulation of flag size, number of flags, and location and height of flagpoles |
Mix of statutory mandate and enabling authority. Conforming amendment to Z/UD ordinance not so important, but ordinance should be checked to ensure conformity with legislation |
|
19. |
Forestry regulation |
G.S. 160A-458.5 G.S. 153A-451 |
S. 681 |
Limits regulation of forestry that is not associated with development if land is subject to forestry use-value taxation or forestry management plan |
Primarily a statutory mandate. LG may need to repeal or amend any ordinance regulating clear cutting or forestry. Conforming amendment to zoning, land subdivision, or development ordinance strongly recommended if LG wishes to withhold development permission for tree harvesting “in anticipation of development.” |
|
20. |
BOA membership |
G.S. 160A-388(a) G.S. 153A-345(a) |
S. 518, Sec. 8 |
Allows alternates to serve on individual matters based on a member’s temporary disqualification |
Enabling authority. Amendment to Z/UD ordinance to take advantage of this option recommended. Consider also possible amendment of BOA rules of procedure |
|
21. |
Conflicts on quasi-judicial matters |
G.S. 160A-388(e1) G.S. 153A-345(e1) |
S. 518, Sec. 8 |
Prohibits and defines conflicts of interest for all quasi-judicial decisions; requires that rest of board votes to resolve objection if member does not recuse him/her self (applies to BOA, planning board, governing board) |
Statutory mandate. Conforming amendment to Z/UD highly recommended, particularly since statutory provisions apply to all boards exercising powers of a board of adjustment. Consider also possible amendment of applicable board’s rules of procedure |
|
22. |
BOA voting |
G.S. 160A-388(e) G.S. 153A-345(e) |
S. 518, Sec. 8 |
Requires that vacant seats and disqualified members are not considered in calculating 4/5 votes if there are no qualified alternates |
Statutory mandate. Conforming amendment to Z/UD highly recommended since failure to ascertain properly the validity of vote affects validity of decision. |
|
23. |
SUP/CUP voting |
G.S. 160A-381(c) G.S. 153A-340(c1) |
S. 814, Sec. 5 |
Requires that only simple majority vote is needed for planning board and governing board approval of SUP/CUP; requires that vacant seats and disqualified members are not counted in computing majority |
Statutory mandate. Conforming amendment to Z/UD highly recommended, particularly since statutory provisions apply to all boards exercising powers of a board of adjustment. Consider also possible amendment of applicable board’s rules of procedure |
|
24. |
Special and conditional use permits |
G.S. 160A-381(c) G.S. 153A-340(c1) |
S. 814, Sec. 5 |
Allows planning boards to decide SUP/CUP |
Enabling legislation. Conforming amendment to Z/UD ordinance unnecessary since provision restates existing law. Provides opportunity to consider appropriate role for planning board |
|
25. |
SUP/CUP procedures |
G.S. 160A-381(c) G.S. 153A-340(c1) |
S. 814, Sec. 5 |
Requires use of quasi-judicial procedures for all SUP/CUPs by all decision-making boards |
Statutory mandate. Conforming amendments to Z/UD ordinance recommended. |
|
26. |
Use variances |
G.S. 160A-388(d) G.S. 153A-345(d) G.S. 160A-381(b1) G.S. 153A-340© |
S. 518, Sec. 8; S. 814, Sec. 5 |
Specifically prohibit use variances (under either variance or special exception power) |
Statutory mandate. Largely restates existing law, but amendment to Z/UD ordinance recommended so language may serve as a reminder. |
|
27. |
|
G.S. 153A-345(g) |
S. 518, Sec. 8 |
Allows |
Enabling statute. Amendment of county Z/UD ordinance to take advantage of this option recommended |
|
Item |
Topic |
Statute |
Bill |
Explanation |
Relation to Local Ordinance |
|
1. |
Plat approval |
G.S. 160A- 373 G.S. 153A-332 |
S. 518, Sec. 3 |
Allows staff member and committees to approve subdivisions |
Enabling legislation. Amendment to S/D ordinance to take advantage of these options recommended, even if these options are already being used. |
|
2. |
Standards for review |
G.S. 160A- 371 G.S. 153A-330 |
S. 518, Sec. 2 |
Requires all standards to be used in subdivision decisions to be set out in ordinance; |
Statutory mandate. Boilerplate from statute need not be incorporated into S/UD ordinance, but LGs will want to review ordinances to ensure compliance with statute. |
|
3. |
Review procedures |
G.S. 160A- 371 G.S. 153A-330 G.S. 160A-376 (b) G.S. 153A-335(b) |
S. 518, Sec. 2; S. 814, Sec. 4 |
Allows for differing types of review for differing classes of subdivisions |
Enabling legislation. Largely codifies existing authority. LGs may wish to review S/UD ordinance to determine whether establishing classes of subdivisions is desirable |
|
4. |
Performance guarantees |
G.S. 160A-372(c) G.S. 153A-331(c) |
S. 814, Sec. 2 |
If performance guarantees required, must provide range of options from which developer chooses for individual project |
Best viewed as a statutory mandate since many S/UD ordinances require financial performance guarantees. If so, then S/UD ordinance may need to be amended to allow range of options, including either letters of credit or bonds, or both. |
|
5. |
Pre-sale contracts |
G.S. 160A-375(b) G.S. 153A-334(b) |
S. 814, Sec. 3 |
Allows subdivider to enter into contracts to sell or lease based on plats with preliminary approval |
Statutes effectively establish a special exception to rules governing sales/leases of lots. Transfer of statutory boilerplate to S/UD ordinance recommended, although exception unlikely to affect LG procedures directly. |
|
6. |
Enforcement |
G.S. 160A-375(a) G.S. 153A-334(a) |
S. 814, Sec. 3 |
Expands enforcement options for subdivision violations to include building permit denial and any other appropriate action (including injunctions) |
Enabling authority. Amending to S/UD ordnance to take advantage of authority to deny building permit recommended, although many ordinances include such language already. Other conforming language also recommended |
|
7. |
Definition |
G.S. 160A-376(a) G.S. 153-335(a) |
S. 814, Sec. 4 |
Provides that first lot out from parent tract is a subdivision |
Statutory mandate. Conforming amendment to S/UD ordinance affecting definition of “subdivision” practically essential |
|
1 |
Moratoria |
G.S. 160A-381(e) G.S. 153A-340(h) |
S. 814, Sec. 5 |
Requires hearing procedure for moratoria if no imminent threat to health or safety; requires statement of rationale from board at time of adoption; sets projects exempted from coverage; limits extensions; provides for prompt judicial review |
Statute both enables and restricts use of moratorium authority. Conforming amendments to Z/S/UD and perhaps other ordinances recommended. LGs will want to have moratorium authority in place in ordinance since need for moratorium may come quickly. Moratorium restrictions may also apply to land development approvals (and ordinances) other than zoning. |
|
2. |
Unified development ordinance |
G.S. 160A- 363(d) G.S. 153A-322((d); |
S. 518, Sec. 1 |
Allows definitions, procedures, organizations for all land use regulations to be combined {also explicitly authorized in zoning and subdivision statutes} |
Enabling statute. No need to repeat statutory language in any ordinance. Provides LGs with opportunity to consider consolidation of ordinances. |
|
3. |
Development agreements |
G.S. 160A-400.22 – 160A-400.32 G.S. 153A-379.1 to 153A-379.13 |
S. 814, Sec. 9 |
Allows use of binding development agreements that lock in regulations and infrastructure provision for up to 20 years |
Enabling statute. Conforming amendments to Z/S/UD ordinances recommended only for jurisdictions with substantial staff capability where very large-scale developments are expected |