Notice of Legislative Hearings: When is Additional Notice and Hearing Required
[Adapted from Land Use Law in North Carolina (4th ed. 2023)]
Rezoning: When is Additional Notice and Hearing Required?
A question occasionally arises whether re-advertisement and rehearing are required if changes are made in the proposed regulation at or after the original hearing.[1] While the governing board always retains the discretion to call for an additional hearing when it is deemed that doing so would be prudent or useful, an additional hearing is legally mandated only if there are substantial changes in the proposal after the initial notice.[2]
Heaton v. City of Charlotte[3] sets the standard for determining when the changes are sufficiently substantial that an additional hearing is required. In this instance, the landowner requested rezoning of a 42.6-acre tract. The original zoning of most of the tract was for single-family residences. The request was to rezone 28.3 acres to a multifamily-residential district and 14.3 acres to a shopping-center district. The public notice of the hearing indicated this fact and included the following statement: “The City Council may change the existing zoning classification of the entire area covered by the petition, or any part or parts of such area, to the classification requested, or to a higher classification or classifications without the necessity of withdrawal or modification of the petition.” After the hearing, the planning commission suggested that the area for the shopping center zoning be reduced to 10 acres, with the other 4.3 acres of this tract to be included in the multifamily residential district. The city council went beyond this recommendation and limited the shopping center to 7.4 acres, with the balance of the site in the multifamily residential district. The effect of this action was to rezone the entire tract but with less land in the shopping-center district and more in the multifamily-residential district (the resultant development is shown in Figure 11.1). Neighbors who opposed the rezoning sued, contending that the council should have held another hearing on the revised zoning scheme.
After an extensive review of the law in other states, the court ruled that the notice provided had been adequate and that no additional notice or hearing had been required:
Ordinarily, if the ordinance or amendment as finally adopted contains alterations substantially different (amounting to a new proposal) from those originally advertised and heard, there must be additional notice and opportunity for additional hearing. However, no further notice or hearing is required after a properly advertised and properly conducted public hearing when the alteration of the initial proposal is insubstantial. Alteration of the initial proposal will not be deemed substantial when it results in changes favorable to the complaining parties. Moreover, additional notice and public hearing ordinarily will not be required when the initial notice is broad enough to indicate the possibility of substantial change and substantial changes are made of the same fundamental character as contained in the notice, such changes resulting from objections, debate and discussion at the properly noticed initial hearing.[4]
In this instance, the court noted that the notice had been broad enough to indicate that changes might be made, that the changes were consistent with the fundamental character of the noticed proposal, and that the changes were made as a result of comments received at the hearing. This led the court to conclude that an additional hearing
could have resulted only in repetitive statements by the same parties or parties similarly situated. . . . The very purpose of the public hearing was to guide the City Council in making changes in the original proposal consistent with the views reflected at the public hearing. This is exactly what was done.[5]
As a general rule, property may be deleted from a proposed rezoning without an additional hearing, but property not included in the notice should not be rezoned without an additional notice and hearing. Similarly, the proposed zoning district can likely be changed to a similar but less intensive use district without a new hearing, but if the changed district allows more intensive use or substantially different uses, an additional hearing is needed.[6]
Occasionally, lengthy hearings are recessed and continued at a subsequent meeting. G.S. 160A-81 and 153A-52, the general provisions on public hearings, specifically allow public hearings to be continued without further advertisement.[7] These statutes also provide that if a quorum of the governing board is not present for the advertised hearing, the hearing shall be continued to the next regularly scheduled board meeting. Also, G.S. 160A-71(b1) provides that regular and called meetings of the governing board may be recessed or adjourned “to reconvene at a time and a place certain” (the comparable county provision, G.S. 153A-40, does not contain this same language). G.S. 143-318.12(b)(1) in the state’s open-meetings law provides that if the time and the place for reconvening are announced during the properly noticed original meeting, no additional public notice is required.
The legal sufficiency of this process is illustrated by Rakestraw v. Town of Knightdale.[8] In Rakestraw, the town published, mailed, and posted notice of a hearing on a proposed rezoning to allow a large commercial project. The advertised hearing was continued to two additional dates. The additional hearing dates were announced at the advertised hearing but were not subject to additional published, mailed, or posted notices. The court held that the notice for the initial hearing was legally sufficient to include the continued-hearing dates provided there was no substantial change to the proposed ordinance as it moved toward passage.
In sum, there is no requirement that a board vote on a matter that has been subject to hearing immediately upon conclusion of the hearing. The board may defer a vote until the next meeting in order to allow additional time for governing-board deliberation after the hearing. The board may refer the matter back to the planning board for further discussion and recommendation.
Even if a new notice is not required for a continued hearing, local governments must be cautious not to allow an inordinate length of time to pass between a hearing and an action on a matter. An eight-month delay between the conclusion of the hearing and the governing-board vote on the issue was one factor used by the court to invalidate a town’s extraterritorial ordinance[9]
[1]. A 2006 survey by the School of Government indicated that while not typical, the issue does in practice arise with some frequency. Three-quarters of the responding jurisdictions reported that additional hearings are never or only rarely held. Only 3 percent of the jurisdictions reported that this happens frequently, always, or almost always often. The remainder—22 percent—reported additional hearings are occasionally required.
[2]. A rule of thumb is that if the same people would have come to the hearing and offered essentially the same comments, it is unlikely that another hearing is required.
[3]. 277 N.C. 506, 178 S.E.2d 352 (1971). See also Walker v. Town of Elkin, 254 N.C. 85, 118 S.E.2d 1 (1961).
[4]. Heaton, 277 N.C. 506, 518, 178 S.E.2d 352, 359–60 (1971). This area was in fact subsequently developed for the shopping center and multifamily residences allowed by the rezoning.
[5]. Id. at 518–19, 178 S.E.2d at 360. See also Appeal of CAMA Permit No. 82-0010 v. Town of Bath, 82 N.C. App. 32, 345 S.E.2d 699 (1986).
[6] The court in Thrash Ltd. Partnership v. County of Buncombe, 195 N.C. App. 678, 673 S.E.2d 706 (2009), noted that an additional hearing is needed if the zoning district applied to property is changed after the original hearing notice. In that case the initial zoning for multiple properties was changed in response to landowner requests between the hearing notice and the hearing.
[7]. Thrash v. City of Asheville, 115 N.C. App. 310, 314, 444 S.E.2d 482, 484 (1994) (affirming that city council can continue hearing to specified time and place without further advertisement). G.S. 160D-406(b) applies the same rule to continuation of evidentiary hearings on quasi-judicial matters without the necessity of additional notice.
[8]. 188 N.C. App. 129, 654 S.E.2d 825, review denied, 362 N.C. 237, 659 S.E.2d 739 (2008).
[9]. Town of Swansboro v. Odum, 96 N.C. App. 115, 384 S.E.2d 302 (1989). If a proposed amendment is not going to be adopted, the better practice is to defeat it rather than table it indefinitely.
