Impermissible Considerations for Legislative Development Decisions

Published for Coates' Canons on October 15, 2021.

“We don’t want those people to move in here!” “A church may be okay, but not a mosque!” “We need condos, not apartments!” These are a few of the many statements that raise red flags in a zoning matter.

In general, legislative decisions such as zoning map amendments are left to the discretion of the governing board. There are many valid considerations for whether to approve the change: adopted plans and policies, technical analysis, judgment about what is in the best interest of the community, and more.

But there are limits. Some topics are out of bounds, and zoning decisions must not be based on those factors. This blog highlights those impermissible considerations.

A separate blog outlines the considerations that are good and necessary for legislative development decisions. Note that while some of these rules and concepts apply to other types of decisions, this discussion is focused on legislative development decisions. For an explanation of the types of development decisions, check out this blog.

Race, Religion, Ethnicity and Other Characteristics

Land use decisions may not be based on the race, religion, ethnicity, or other protected classifications of individuals. In the early twentieth century some zoning ordinances in North Carolina were explicitly racial. Zoning districts were specified by race—some for white residents and some of black residents. The North Carolina Supreme Court struck down such racial zoning in 1940 in Clinard v. City of Winston-Salem, 217 N.C. 119. Even after explicit racial zoning was struck down, race continued to play a role in zoning decisions in North Carolina. A study by urban planning scholar Andrew Whittemore of zoning decisions in mid- to late-20th century Durham found that “race historically played a role in upzonings and downzonings involving heavy commercial and industrial uses.”

State and federal law now prohibits such decision-making based on the character of the owners or residents of a development project. The North Carolina Fair Housing Act states “[i]t is an unlawful discriminatory housing practice to discriminate in land-use decisions or in the permitting of development based on race, color, religion, sex, national origin, handicapping condition, [or] familial status . . .” (G.S. 41A-4(g)). Equal Protection under the federal Constitution demands that similarly situated individuals be treated the same and demands heightened judicial review of discrimination. Federal statutory and Constitutional protections require that governmental actions not discriminate on the basis of religion. And federal and state law provides protections against housing discrimination and protections for individuals with disabilities.

The U.S. Supreme Court, in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), set forth the sources of information that may reveal impermissible considerations of race: the historical background of the decision or a clear pattern unexplainable except by race; the sequence of events leading up to the decision (such as a sudden downzoning when affordable housing was proposed); the legislative and administrative history, including reports, minutes, and statements by the decision-makers; departures from the normal procedural sequence; and departures from typical substantive decisions (given the standard considerations, would the board normally make a different decision). Discriminatory intent can be hard to prove—and was not proven in the Village of Arlington Heights case—but the Court outlined a wide range of sources where illegitimate intent may be revealed.

While there is a legacy of discrimination in land use zoning, state and federal law demands that lang use decisions today must be based on the land use, not discrimination against a particular person or group of people.

Inclusion of Affordable Housing

In addition to the protections outlined above, the North Carolina Fair Housing Act also provides protection against a denial of a development project because it includes affordable housing. Specifically, the law states that “[i]t is an unlawful discriminatory housing practice to discriminate in land-use decisions or in the permitting of development based on . . .  the fact that a development or proposed development contains affordable housing units for families or individuals with incomes below eighty percent (80%) of area median income.” Moreover, it is a violation if “the local government was motivated in full, or in any part at all, by the fact that a development or proposed development contains affordable housing units.” And, “[a]n intent to discriminate may be established by direct or circumstantial evidence.” There is one exception: It is not a violation of the North Carolina Fair Housing Act if the action was based on limiting high concentrations of affordable housing. ((G.S. 41A-4(g) & 41A-5).

Lack of Any Land Use Rationale

Apart from discrimination, governing boards have fairly broad discretion for making land use decisions. Courts typically defer to the local political decision by the local decision-makers. But there must be some valid land use rationale for a decision. A decision that is without rationale is, at a minimum, unconstitutional as arbitrary and capricious, and may indicate that an illegitimate reason (racial discrimination, for instance) underlies the supposed reasons for the decision.

As an example, in Gregory v. County of Harnett, 128 N.C. App. 161, 493 S.E.2d 786 (1997), the court found a rezoning to be arbitrary and capricious. The county commission approved a down-zoning submitted just three days after a nearly identical request was denied. The court’s review of the record found that the decision-makers based their decision on “complaints by various citizens of an undocumented crime problem allegedly arising from a manufactured home park.” One commissioner thought a manufactured home park was not in keeping with the neighborhood and another stated he did what he thought was best for the county. “[A]t least one Commissioner stated the alleged crime problem was the result of the type of people who live in manufactured home parks.” The court, however, found “no evidence in the record showing that the Commissioners considered the character of the land, the suitability of the land for the uses permitted in the proposed zoning district, the comprehensive plan, or the existence of changed circumstances justifying the rezoning application.” Based on the indication of invalid considerations and the lack of valid considerations reflected in the record, the court found the action to be arbitrary and capricious.

In another case, Town of Green Level v. Alamance County, 184 N.C. App. 665, 646 S.E.2d 851 (2007), the court reviewed action by the county to extend zoning in opposition to a proposed expansion of extraterritorial jurisdiction. The court found no evidence in the record of the commissioners reviewing the comprehensive plan nor evidence to support the claim that the ordinance was set up to protect water resources. The claim that the zoning would protect rural character was contradicted by the allowance for significant manufacturing uses. The court found the zoning was adopted to block extraterritorial jurisdiction, not to advance legitimate health, safety, or welfare purpose. As such, it was arbitrary and capricious.

There must be a legitimate rationale for a land use decision—the appropriateness of land uses, the policies of the comprehensive plan, the availability of public infrastructure and services for example. It is helpful if that rationale is clearly seen in the governing board’s discussion and statement of rationale. In the two cases above, the courts found no legitimate rationale, the decisions were arbitrary and capricious, and there was indication that illegitimate considerations were behind the decisions.

Particular Applicant, Tenant, or Owner

“Unless provided otherwise by law, all rights, privileges, benefits, burdens, and obligations created by development approvals made pursuant to this Chapter [160D] attach to and run with the land” (G.S. 160D-104). Land use decisions are decisions about the land and the rights and obligations stay with the land. Decisions are not specific to an applicant or owner. As such, when an applicant seeks a permit or rezoning, decision-makers must consider the proposal, not the person. Indeed, land changes hands all of the time. Suppose Tom obtains a rezoning for his property. He may sell the property to Samantha tomorrow. Samantha will have all of the rights and obligations for land development that Tom had.

This line of thinking goes further: Land use decisions and regulations must not be based on ownership status. Land use decisions are about land use, not about the form of ownership of the development. A multi-family development has the same land use impacts whether it is owner-occupied condominiums or renter-occupied apartments. This issue was addressed in Graham Court Associates v. Town Council of Chapel Hill, 53 N.C. App. 543, 281 S.E.2d 418 (1981). The town ordinance required different permitting and standards for condominiums as compared to apartments. The court ruled that zoning can regulate land use, but not the form of ownership.

Additionally in City of Wilmington v. Hill, 189 N.C. App. 173, 657 S.E.2d 670 (2008), the court ruled against a land use regulation based on form of ownership. The city’s ordinance permitted a garage apartment as an accessory use in a single-family zoning district, but required that the property owner must live in either the main residence or the accessory apartment. The court held the ownership requirement to be beyond the scope of delegated zoning powers and unconstitutional as an impermissible regulation of ownership rather than a permissible regulation of land use.

Private Interest over Public Interest

A legislative development decision is a decision for the community. It sets broad policy for what is allowed and not allowed within the jurisdiction. As such, elected officials must based the decision on the public interest, not private gain.

Even if a board member thinks she may approach a case fairly, there are some matters that demand the board member to recuse herself from the case. General Statute 160D-109 states that a governing board member shall not vote on a legislative matter “where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member.” So, a board member may not participate in a legislative development decision where she owns the property at issue, she is financially involved with the development, or she will otherwise have a direct, substantial, and readily identifiable financial impact from the outcome of the case.

Additionally, a board member shall not vote on a 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.” If the applicant for the rezoning or text amendment is a spouse, business partner, or close friend to a board member, that board member must recuse herself.

There is an important distinction for conflicts of interest in legislative matters as compared to conflicts in quasi-judicial matters: impartiality. In a quasi-judicial matter, the board is acting like a court and due process requirements demand that the board members must be impartial decision-makers. They must not have a fixed opinion for or against a particular proposal. In contrast, for legislative matters the board is acting as a legislative body. They can take politics into account and they may have previously stated their position on an issue or a case. Having a fixed opinion is not an automatic conflict of interest in a legislative development decision (See Brown v. Town of Davidson, 113 N.C. App. 553 (1994)).  Indeed, a governing board member may have run for office with a campaign platform for or against a particular project. That member could still participate in a legislative development decision, but could not participate in a quasi-judicial development decision.

Protection of Particular Uses

This blog outlines some of the considerations that are off limits for development decisions. Note that there are also particular uses that have specific constitutional or statutory protections, such as those outlined in Article 9 of Chapter 160D. Manufactured homes, adult businesses, cell towers, family care homes, places of worship, billboards, and many other uses have certain procedural and substantive protections. Those issues are important, but beyond the scope of this blog.


These are some of the specific topics that are out of bounds for legislative development decisions. For a summary of the good considerations—the topics that the governing board definitely should consider—check out the companion blog here. And check out this blog for more on the Procedures for Legislative Development Decisions.



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