[Adapted from Owens, Land Use Law in North Carolina (4th ed. 2020)]
State statutes define the land divisions subject to coverage by local subdivision regulations. The North Carolina statutes[1] provide that the division of a “tract or parcel of land into two or more lots, building sites, or other divisions when any one or more of those divisions are created for the purpose of sale or building development (whether immediate or future)”[2] and all divisions involving the “dedication of a new street or a change in existing streets” are subdivisions subject to regulation.[3]
Since the division must be for the purpose of sale or development, courts have held that divisions for other purposes are not subject to subdivision regulation. For example, a division of land for the purpose of dividing an estate among the heirs has been held not to be a subdivision under the statutory definition.[4] Creation of multiple lots for future development, even if the lots remain in single ownership, is a “subdivision” subject to regulation. Examples include lots in a mobile-home park or outparcels in a commercial development.[5]
The statutory definition of a subdivision also includes the following exemptions:[6]
- the combination or recombination of portions of previously subdivided and recorded lots where the total number of lots is not increased and the resultant lots meet or exceed the standards of the municipality as shown in its subdivision regulations;
- the division of land into parcels greater than ten acres where no street right-of-way dedication is involved;[7]
- the public acquisition by purchase of strips of land for the widening or opening of streets or for public-transportation-system corridors;[8]
- the division of a tract in single ownership whose entire area is no greater than two acres into no more than three lots, where no street right-of-way dedication is involved and where the resultant lots meet or exceed the standards of the municipality, as shown in its subdivision regulations; and
- the division of a tract to settle an estate.[9]
Before the register of deeds can record a plat that is exempt from local subdivision regulation, a review officer must review the plat and certify that it is in fact exempt.[10]
Three Guys Real Estate v. Harnett County[11] illustrates the effect of the statutory exemption from subdivision regulation. The owner of a 231.37-acre parcel proposed to divide the land into twenty-three lots and proposed no street rights-of-way or other access to the lots. After suit was filed, a revised plat showed access by a series of private-driveway easements. The county refused to approve the plat, noting the hazards to public safety caused by the lack of adequate access. The North Carolina Supreme Court, however, concluded that the statutory exemption of G.S. 160D-802(a)(2) was clear and unambiguous: if all lots created by a subdivision exceeded ten acres and there was no public-right-of-way dedication involved, the subdivision was exempt from any and all county subdivision regulation.
The fact that a division of land is exempt from the definition of a subdivision for the purposes of a city or county land-subdivision regulation does not, however, exempt the development from other types of local development regulation. In Tonter Investments, Inc. v. Pasquotank County,[12] for example, the plaintiff owned three tracts and proposed to subdivide them into lots of greater than ten acres each with no street right-of-way dedications. The parties agreed that such a division would be exempt from the county’s land-subdivision regulation. Prior to any development of the lots, the county amended its zoning regulation to prohibit residential uses in the county’s A-2 zoning district (where two of the plaintiff’s tracts were located) and to allow residences in the A-1 zoning district (where the plaintiff’s third tract was located) only if the lot had a specified minimum frontage on a state road and was within 1000 feet of a public water supply.[13] The plaintiff contended that the Three Guys rationale precluded these zoning restrictions. The court disagreed, holding there was no evidence that the legislative intent to exempt these large-lot divisions from land-subdivision regulation constituted an “unfettered exemption from all county regulations, including zoning regulations.”[14]
Related Blog Posts
Subdivision Legislation: An Old Exemption and a New Expedited Review - Coates’ Canons NC Local Government Law (unc.edu) (June, 2017)
Making Sense of Subdivision - Coates’ Canons NC Local Government Law (unc.edu) (April, 2016)
[1]. G.S. 160D-802(a). A variety of local modifications have been adopted..
[2]. The N.C. Attorney General’s office in 1975 expressed the view that one lot created for sale or development is not a subdivision if 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 was created. N.C. Dep’t of Justice, Office of the Att’y Gen., Advisory Opinion: Counties; Subdivision Ordinance, Op. N.C. Att’y Gen. (March 4,1975). The opinion says that any additional lots created out of that larger parcel would constitute a subdivision, even if done one at a time. However, many local governments considered that even the first lot would constitute a subdivision since there would now be two lots (the original parcel and the new lot) existing as of the creation of even one lot for conveyance out of the larger tract. The statute was amended in 2005 to clarify that even the first lot out is subject to subdivision regulation. The statute now explicitly provides that if any one lot is created for the purpose of sale or development, it is a subdivision..
[3]. G.S. 160D-802.
[4]. Williamson v. Avant, 21 N.C. App. 211, 203 S.E.2d 634, cert. denied, 285 N.C. 596, 205 S.E.2d 727 (1974).
[5]. Jones v. Davis, 163 N.C. App. 628, 594 S.E.2d 235 (2004) (lots in mobile-home park).
[6]. The exemptions are listed in G.S. 160D-802(a).
[7]. This exemption originally was for the creation of lots of five acres or more with no street dedication. See G.S. 160-226.6, created by S.L. 1955-1334. The 1971 comprehensive revision of the municipal statutes changed this to ten acres. S.L. 1971-698. The same change was made for counties. G.S. 153-266.7, created by S.L. 1959-1007, provided for a five-acre exemption, and this was adjusted to ten acres by S.L. 1973-822.
[8]. The provision for public-transportation-system corridors was added effective July 1, 2003, by S.L. 2003-284, § 29.23(a).
[9]. Provision added by S.L. 2017-10, essentially codifying Williamson, 21 N.C. App. 211, 203 S.E.2d 634.
[10]. G.S. 47, §§ 30(f)(11), 30.2.
[11]. 345 N.C. 468, 480 S.E.2d 681 (1997).
[12]. 199 N.C. App. 579, 681 S.E.2d 536, review denied, 363 N.C. 663, 687 S.E.2d 296 (2009).
[13]. In 2011, the General Assembly amended the county-zoning statute to restrict use of this approach. S.L. 2011-384 enacted G.S. 160D-903(b) to provide that counties may not prohibit single-family detached homes on lots greater than ten acres in size in zoning districts where more than 50 percent of the land is used for agriculture or silviculture (unless it is a commercial or industrial zoning district allowing a broad variety of commercial or industrial uses). The law provides that any ordinance provision inconsistent with this limitation is void and unenforceable as of the effective date of the law. This law also mandates a study of the extent to which counties should be able to require that lots exempt from subdivision regulation be accessible to emergency-service providers.
[14]. Tonter, 199 N.C. App. at 583, 681 S.E.2d at 539. See also Town of Nags Head v. Tillett, 314 N.C. 627, 336 S.E.2d 394 (1985) (holding that statutory provisions for enforcement of land-subdivision ordinance do not limit enforcement options under zoning ordinance).
