In North Carolina it is illegal to impose conditions on rezonings to conventional zoning districts. However, this can be done if either conditional use district rezoning or conditional zoning is used. There are, however, detailed legal requirements that must be followed if either of these two zoning tools are used.
Conditions on Rezonings
Individual, particularized conditions on rezonings to a general use district are unenforceable in North Carolina. G.S. 160A-382 and 153A-342 provide that “all regulations shall be uniform for each class or kind of building throughout each [zoning] district.”
In Decker v. Coleman,[1] the court held that this uniformity requirement precludes imposition of conditions on conventional, general rezonings. In this case the city of Asheville rezoned a 62-acre parcel from residential to commercial in order to allow construction of a shopping center. The rezoning was conditioned upon the owner’s maintaining a 50-foot buffer without any access connections between the proposed commercial use and the adjacent residential neighborhood. While such a condition may be entirely appropriate and legal for a special or conditional use permit, here the condition was attached to the rezoning decision. Since such a buffer requirement was not uniformly applied throughout the zoning district, the court held that the city had no statutory authority to apply it as a condition of rezoning a particular parcel. The court thus held the condition invalid and unenforceable.
The inclusion of an invalid condition does not serve to invalidate the rezoning. Barring other legal defects, the rezoning stands; its conditions do not. In Decker the city council included a specific severability clause and the court applied it to sever the condition, invalidate it, and leave the remainder of the ordinance amendment in place. The same result was reached in Kerik v. Davidson County,[2] where the court invalidated a buffer requirement imposed on a rezoning but held the rezoning itself valid.
Conditional Use District Zoning
Conditional use district zoning is involved when a landowner requests that property be placed in a new zoning district that has no permitted uses, only special or conditional uses.
In the typical North Carolina zoning ordinance that allows conditional use district zoning, the ordinance text is amended to create a set of conditional use districts. These conditional use districts have no permitted uses as of right. No new use of land may be undertaken unless a special or conditional use permit is first secured. Often there is one conditional use district to correspond with each conventional or general zoning district, with all of the permitted uses in a particular zoning district being converted to special or conditional uses in the parallel special/conditional use district. These conditional use districts are “floating zones”; that is, they are not applied to any property until a petition to apply them is made by the landowner.
Concurrently with consideration of a petition to rezone property into a conditional use district—a legislative rezoning decision—the governing board considers an individual application for a special or conditional use permit for a particular project within the new district. The special or conditional use permit—a quasi-judicial decision—could be addressed at a later time and could be issued by the board of adjustment or the planning board rather than the governing board. However, the typical practice is to consider the rezoning and the permit at the same time, with both decisions made by the governing board.
The legal advantage of such a system is that the legislative rezoning decision is not technically based on a single project, as any number of conditional use permits could be considered within the district, and the problems raised in Allred and Blades are thereby avoided. The conditional use permit allows specific, enforceable conditions to be imposed on the project that is approved.[3] But since the individual conditions are imposed on the permit, not the rezoning, the problems raised in Decker are avoided.
This technique of conditional use district zoning was pioneered by Greensboro in 1972, was explicitly authorized by local legislation for several local governments in 1973,[4] and was incorporated into the general zoning enabling act in 1985.[5]G.S. 153A-342 and 160A-382 specifically allow use of special and conditional use districts but only upon the petition of the owners of all of the land to be included in the district. The rezoning and permit decisions are legally separate, but the governing board clearly has the opportunity to deny the initial rezoning request if it objects to the project presented in the conditional use permit application that is officially considered subsequently. Although this has the practical effect of allowing a rezoning to be based on a particular proposal, a practice ruled illegal in North Carolina in the Allred and Blades decisions, use of conditional use district zoning was upheld in Chrismon v. Guilford County.[6]
The court in Chrismon concluded that conditional use district zoning was not illegal contract zoning per se because the promise was unilateral: the owner offered to develop the property according to a subsequently issued conditional use permit without receiving a reciprocal promise from the local government; at the same time, the governing board retained its independent judgment because it did not make such a promise.[7]
Conditional use district zoning requires two separate decisions,[8] with the rezoning decision meeting all of the statutory requirements for legislative decisions and the permit decision meeting all of the constitutional requirements for quasi-judicial decisions. The initial legislative decision about rezoning is based on a consideration of the policy question of whether some limited alternative use is appropriate for the site, and the subsequent quasi-judicial decision about a conditional use permit is based on whether the particular application meets the standards set in the first decision.[9] If the petition for the rezoning is denied, the board does not decide the permit application, as the rezoning is necessary to create the eligibility for the special or conditional use permit.[10]
The procedure and standards for making quasi-judicial zoning decisions are very different from those for making legislative rezoning decisions.[11] The difficulty confronting cities and counties is that this process requires making two legally different decisions—the rezoning and the permit decision—at the same time and based on a single hearing, although the legal requirements and procedures for the two hearings vary significantly. A rezoning decision is entirely legislative in nature.[12]Elected officials can discuss the matter with interested citizens at any time. At the hearing anyone can speak, and the decision is left to the good judgment and discretion of the elected officials, provided it is supported by a reasonable basis. The expansive range of discretion and judicial deference for the legislative aspect of the overall decision is one of the principal reasons the tool has been so popular with local elected boards. On the other hand, a conditional use permit decision is quasi-judicial. Board members are not to gather evidence or discuss the case outside of the hearing. The decision is to be made on the basis of evidence presented at the hearing, substantial evidence must be presented to establish that the application meets the standards in the ordinance, and written findings are required to support the decision. As a practical matter (and likely a legal mandate), since quasi-judicial standards are more rigorous, most boards follow the quasi-judicial process when making the concurrent legislative and quasi-judicial decisions in a conditional use district rezoning.[13]
The court in the Chrismon case explicitly noted that conditional use district rezoning was still subject to the limitations on small-scale rezonings:
[I]n order to be legal and proper, conditional use zoning, like any type of zoning, must be reasonable, neither arbitrary nor unduly discriminatory, and in the public interest. It goes without saying that it also cannot constitute illegal spot zoning or illegal contract zoning. . . . The benefits of the flexibility of conditional use zoning can be fairly achieved only when these limiting standards are consistently and carefully applied.[14]
As the architects of the conditional use district system put it, this “system is not for amateurs.”[15] A prudent local government must follow all of the procedural and substantive limitations that apply to both legislative rezoning decisions and quasi-judicial conditional use permit decisions. Applying all of these rules simultaneously to a conditional use district rezoning petition and a conditional use permit application requires considerable skill and diligence.
Despite the complexity of the process, conditional use districts are widely used in North Carolina. 39 percent of the municipalities and 39 percent of the counties (and 77 percent of the cities with populations between 10,000 and 25,000) reported use of conditional use districts in a 2006 School of Government survey.[16]
Conditional Zoning
Many local governments struggle with the complexity of concurrently deciding a legislative rezoning and a quasi-judicial conditional use permit under the conditional use district zoning scheme.
One alternative is to treat the entire conditional use district rezoning as a quasi-judicial decision, as is mandated for all small-scale rezonings in several states. In Gossett v. City of Wilmington,[17] the court held that a provision in the city’s charter providing that the entirety of a special use district rezoning and accompanying special use permit should be considered and reviewed as a quasi-judicial matter controlled.
A second alternative is to consider conditional use district zoning as a single decision and treat it as legislative rather than quasi-judicial, as is done in some other states.
Several North Carolina jurisdictions adopted this later view in the 1990s, though most still used the conditional use district terminology. For example, the practice that evolved in Charlotte and
Mecklenburg County was to treat the conditional zoning process just as any other regular rezoning. No attempt was made to conduct a quasi-judicial hearing, to make findings, or limit consideration to evidence presented at the hearing. Some 75 percent of the Charlotte rezonings in 1997–1999 were made in this manner.
Judicial validation of the Charlotte approach in two court of appeals cases added the option of using true conditional zoning, without a concomitant conditional use permit, for North Carolina local governments.
The first case, Massey v. City of Charlotte,[18] involved the rezoning of a 42-acre parcel from R-3 to Commercial Center district to allow construction of two “big box” retailers along with five outparcels. The trial court held that while the city could undertake the two-step conditional use district zoning described above, the city had no authority to undertake “conditional zoning” without using a conditional use permit (and following the requisite procedure for those permits).
In response to this ruling, while the case was on appeal, Charlotte, Mecklenburg County, and the other cities within the county obtained local legislation authorizing conditional zoning without having a quasi-judicial conditional use permit as part of the process.[19] These bills allowed creation of “conditional zoning districts” with individualized development standards adopted as part of the ordinance. Property could only be rezoned to these districts “in response to and consistent with” a petition filed by the property’s owner. The petition required including a site plan, a specification of the actual use planned, and any rules, regulations, or conditions that would govern development of the site. The petitioner would conduct at least one community meeting on the proposal prior to the official hearing on the rezoning. The rezoning decision would be made “in consideration of” relevant land use plans for the area, including the comprehensive plan, strategic plans, district plans, area plans, neighborhood plans, corridor plans, and other land use policy documents. These rezonings would not be made between the date of election of a new governing board and the time that new board takes office.
When the Massey case reached the court of appeals, the court held that the zoning enabling statutes authorized use of conditional use districts but did not mandate their use or by implication limit the use of other types of zoning decisions (such as the purely legislative conditional zoning used here), especially when these statutes are read with the mandate for broad construction in mind.[20] The court noted that Chrismon v. Guilford County, discussed throughout the text above, did not explicitly require an accompanying quasi-judicial decision on a special or conditional use permit.[21] The court also held that the petitioner’s submission of detailed plans for site development did not constitute illegal contract zoning because this was a unilateral promise from the petitioner, not a bilateral agreement with obligations being made by the city. The court held that the appropriate standard of judicial review for conditional zoning was that applicable to legislative decisions.[22]
The second case addressed the constitutional dimensions of conditional zoning. In Summers v. City of Charlotte,[23] the court again held that conditional zoning decisions are legislative rather than quasi-judicial and are within the statutory authority delegated to the city. The court also found that the mandatory community meetings and formal legislative hearing provided in the course of the rezoning process afford neighbors adequate procedural due process.[24] The court held that the rezonings were not arbitrary and capricious, as they were based on fair and careful consideration of the planning board’s review, technical staff reports, and public comments. The court noted that the rezonings were consistent with adopted small area plans for the affected area and there was no showing of bad faith or undue discrimination.
In 2005 the General Assembly amended the zoning statutes to explicitly authorize city and county use of conditional zoning.[25] G.S. 160A-382(a) and 153A-342(a) provide that zoning ordinances may include “conditional districts, in which site plans and individualized development conditions are imposed.” As with special and conditional use districts, the statute provides that land may be placed in a conditional district only upon petition of all of the owners of the land to be included.
The use of conditional zoning rapidly became commonplace in North Carolina following the Massey decision, particularly for municipalities. A 2006 survey of North Carolina cities and counties indicated that a third of the responding cities and a quarter of the responding counties use conditional zoning.[26] Given the use of this type of district by the state’s more populous jurisdictions, over a third of all rezonings considered in the previous year included site specific conditions.[27]
The standard practice in North Carolina cities and counties using conditional zoning is to amend the ordinance text to create a set of conditional zoning districts to correspond with each conventional zoning district. However, rather than requiring that all uses secure a conditional use permit, as is done with conditional use district zoning, individualized conditions and site plan provisions are incorporated (usually by reference) into the zoning district requirements. In most instances, the provisions in the conditional district are more stringent than those in the corresponding conventional districts. The conditional district may, for example, have a much narrower list of permitted uses and may increase the buffering requirements to provide additional protection to neighboring uses. In the absence of a local ordinance provision to the contrary, it is legally permissible to tailor standards that are less restrictive than those in the corresponding conventional district.[28]
The 2005 amendments also addressed the origin and nature of conditions that may be imposed. G.S. 160A-382(c) and 153A-342(c) provide that specific conditions may be suggested by the owner or the government, but only those conditions mutually acceptable to both the owner and the government may be incorporated into the ordinance or individual permit involved.[29]These statutes also provide that any conditions or site specific standards imposed are limited to those that address the conformance of the development and use of the site to city or county ordinances and officially adopted plans and those that address the impacts reasonably expected to be generated from the development or use of the site. These provisions regarding conditions apply to both conditional zoning and to special and conditional use district zoning.
While the North Carolina courts have consistently held site specific conditional zoning cases to be legislative, it is important to note that virtually all of these rezonings constitute spot zoning. As such, the presumption of validity usually accorded legislative zoning decisions is removed and the burden is on the local government to establish a reasonable basis for the rezoning.
Also see these blog posts in Coates Canons:
David Owens, Choosing the Right Development Review Process: Factors to Consider (Oct. 2013)
David Owens, A Conditional What? Clarifying Some Confusing Zoning Terminology (Nov. 2012)
David Owens, Rezoning Conditions Done Right (July 2011)
David Owens, Can We Add a Condition to this Rezoning? (June 2011)
For additional legal analysis, see:
David W. Owens, Land Use Law in North Carolina (2ed. 2011)
[1] 6 N.C. App. 102, 169 S.E.2d 487 (1969).
[2] 145 N.C. App. 222, 551 S.E.2d 186 (2001). The court questioned the relevance of Decker in Massey v. City of Charlotte, 145 N.C. App. 345, 351, 550 S.E.2d 838, 843, review denied, 354 N.C. 219, 554 S.E.2d 342 (2001), noting that it applied only to general use district zoning and was decided prior to Chrismon. Kerik, a contemporaneous decision to Massey, illustratesDecker’s continuing vitality outside of the conditional use district/conditional zoning context.
[3] For example, a condition could be placed on the permit that development of the site be initiated within a time certain or the permit expires and a new application must be submitted in order for the site to be developed. Such a condition may not generally be placed on the rezoning decision.
[4] 1973 N.C. Sess. Laws ch. 381 (Winston-Salem and Forsyth County), ch. 485 (Surry County and its municipalities), ch. 1283 (Charlotte–Mecklenburg County). The Greensboro ordinance was adopted under the city’s general zoning authority. Between 1973 and 1985 more than twenty local governments sought and received local legislation authorizing this practice. A number of other local governments adopted conditional use district zoning under the general zoning enabling authorities.
[5] 1985 N.C. Sess. Laws ch. 607. In Chrismon v. Guilford County, 322 N.C. 611, 370 S.E.2d 579 (1988), the court ruled that the zoning enabling statutes provided adequate statutory authority for conditional use district zoning even before this specific authorization was adopted.
[6] 322 N.C. 611, 370 S.E.2d 579 (1988).
[7] Also, the decision does not bind future governing board action, as the property can be subsequently rezoned to some other district. The owner is protected, if at all, through securing a vested right or by the property having nonconforming status.
[8] Vill. Creek Prop. Owners’ Ass’n, Inc. v. Town of Edenton, 135 N.C. App. 482, 520 S.E.2d 793 (1999).
[9] Some ordinances more closely bind the two decisions by providing for an automatic repeal of the conditional use district if the conditional use itself ceases.
[10] See, e.g., Coucoulas/Knight Props. v. Town of Hillsborough, 199 N.C. App. 455, 683 S.E.2d 228 (2009), aff’d per curiam, 364 N.C. 127, 691 S.E.2d 411 (2010) (rezoning to special use district prerequisite to special use permit consideration).
[11] As the court of appeals noted in Graham v. City of Raleigh, 55 N.C. App. 107, 284 S.E.2d 742 (1981), review denied, 305 N.C. 299, 290 S.E.2d 702 (1982), in reviewing a rezoning:
The procedures established under the General Statutes, Raleigh City Charter, and Raleigh City Code provide the basis for a legislative, rather than a judicial determination on the part of the City Council. Zoning petitioners are not required to offer evidence nor is the legislative body required to make findings that the requested rezoning promotes the health, morals, or general welfare of the people of Raleigh.
55 N.C. App. at 110, 284 S.E.2d at 744. The zoning enabling statute itself further blurs the boundary between the rezoning and permitting dimensions of these decisions. In 1991 G.S. 160A-385(a) was amended to provide that a protest petition, a device to require an extraordinary majority for a legislative zoning amendment, does not apply to certain conditional use district amendments. The amendments covered include those dealing with the size of buffers and screening, which are more appropriately permit conditions than district standards.
[12] In Ashby v. Town of Cary, 161 N.C. App. 499, 588 S.E.2d 572 (2003), the court affirmed that a conditional use district rezoning decision is a purely legislative decision and is to be overturned only if the record before the town council at the time of decision demonstrates that the decision had no foundation in reason and bore no substantial relationship to the public health, safety, morals, or welfare. If there is any plausible basis for the decision that has a basis in reason and relation to public safety, the decision must be affirmed.
[13] See McMillan v. Town of Tryon, 200 N.C. App. 228, 234–38, 683 S.E.2d 747, 752–54 (2009). The ordinance involved required a petition for a conditional use district rezoning be accompanied by a conditional use permit application and specified that the entire process be considered in a quasi-judicial manner. The court held the town was therefore bound to that quasi-judicial process.
[14] 322 N.C. 611, 622–23, 370 S.E.2d 579, 586 (1988) (citations omitted).
[15]. Stephen E. Davenport & Philip P. Green, Jr., Special and Conditional Use Districts: A Way to Impose More Specific Zoning Controls 10 (1980).
[16] David W. Owens & Andrew Stevenson, An Overview of Zoning Districts, Design Standards, and Traditional Neighborhood Design in North Carolina Zoning Ordinances 5 (School of Government, Special Series No. 23, 2007).
17]. 124 N.C. App. 777, 478 S.E.2d 648 (1996).
18]. 145 N.C. App. 345, 550 S.E.2d 838, review denied, 354 N.C. 219, 554 S.E.2d 342 (2001).
[19] S.L. 2000-84 did so for Charlotte, Cornelius, Davidson, Huntersville, Matthews, Mint Hill, and Pineville. S.L. 2000-77 did so for Mecklenburg County.
[20 Massey, 145 N.C. App. 345, 353–55, 550 S.E.2d 838, 844–46, review denied, 354 N.C. 219, 554 S.E.2d 342 (2001). Although Massey held conditional zoning to be permissible under the general zoning enabling act, Charlotte sought and obtained local legislation to make permanent its explicit authorization to use conditional zoning. S.L. 2001-276 did this for the seven municipalities in Mecklenburg County, and S.L. 2001-275 did this for Mecklenburg County.
[21] On the contrary, the Massey court noted, “[n]othing in Chrismon suggests that the Board [of County Commissioners] engaged in a two-step, part legislative, part quasi-judicial process which would warrant the ‘competent and material evidence’ standard of review. Rather, the re-zoning decision and the decision regarding the conditional uses that would be allowed on the land were determined in a single proceeding.” 145 N.C. App. at 351, 550 S.E.2d at 843.
[22] The court cited the Chrismon standard that the rezoning be upheld if it is “reasonable, neither arbitrary nor unduly discriminatory, and in the public interest.” Id. at 349, 550 S.E.2d at 842. See also Ashby v. Town of Cary, 161 N.C. App. 499, 588 S.E.2d 572 (2003) (conditional use district rezoning is to be overturned only if it has no foundation in reason and bears no substantial relationship to the public health, safety, morals, or welfare).
[23] 149 N.C. App. 509, 562 S.E.2d 18, review denied, 355 N.C. 758, 566 S.E.2d 482 (2002). This case involved neighbors’ challenges to two Charlotte rezonings. The first rezoned 11.6 acres from an Office District to a Mixed Use Development District allowing office, retail, multifamily residential, and a hotel. The second rezoned the 95.6-acre site of SouthPark Mall from Shopping Center and Office Districts to a Commercial Center District. Both rezoning petitions included site plans, specifications of proposed uses, and proposed site specific development guidelines. After a series of public meetings and a legislative hearing, the city adopted both rezonings. In each rezoning the council specified that the general zoning ordinance provisions for the respective districts, the site plans, and the additional individualized proposed regulations and conditions all constituted the binding zoning regulations for each property. As a spot zoning allegation was not argued on appeal, the court deemed that issue abandoned by the plaintiffs.
[24] In most situations procedural due process is not an issue in legislative rezoning decisions, as neither the owner nor the neighbors have a property right in the existing zoning. Here the court noted that procedural due process only applied if a party’s vested property rights were affected, and “even assuming Plaintiffs have a vested right,” the notice and hearing procedures used for legislative zoning decisions were adequate. Summers, 149 N.C. App. at 518, 562 S.E.2d at 25.
[25] S.L. 2005-426, secs. 6(a) and 6(b).
[26] David W. Owens & Andrew Stevenson, An Overview of Zoning Districts, Design Standards, and Traditional Neighborhood Design in North Carolina Zoning Ordinances 6 (School of Government, Special Series No. 23, 2007). Interestingly, a number of jurisdictions reported having both conditional zoning and conditional use districts in their ordinances (17 percent of the cities and 8 percent of the counties).
[27] David W. Owens, Zoning Amendments in North Carolina 5 (School of Government, Special Series No. 24, Feb. 2008). The responding cities and counties reported consideration of 3,029 rezoning petitions. Fifty-seven percent were for rezonings to conventional districts, 21 percent to conditional use districts, and 15 percent to conditional districts. There was a significant difference between municipal and county experience on this point. Counties were far more likely to have petitions for conventional rezonings. 70 percent of all rezoning petitions in counties were for conventional rezoning, compared to 52 percent for municipalities. By contrast, cities much more frequently consider conditional zoning. 19 percent of all municipal rezoning petitions were for conditional rezoning, as compared to only 6 percent for counties. The trend toward use of legislative conditional zoning was even more pronounced for cities with larger populations. Cities with populations over 25,000 reported over half of their rezoning petitions were for conditional or conditional use district rezonings. For these cities, 32 percent of their rezoning petitions were for conditional rezoning and 22 percent were for conditional use district rezoning. Id. at 6.
[28] Rakestraw v. Town of Knightdale, 188 N.C. App. 129, 136, 654 S.E.2d 825, 830, review denied, 362 N.C. 237, 659 S.E.2d 739 (2008). In Rakestraw the rezoning to a highway commercial conditional district relaxed or decreased some twenty standards relative to the corresponding conventional highway commercial district. See also Sapp v. Yadkin County, ___ N.C. App. ___, 704 S.E.2d 909 (2011). The county rezoned a parcel to a Manufacturing-Industrial conditional zoning district and applied specific standards relative to a jail. The parallel Manufacturing-Industrial conventional district allowed jails as a conditional use permit with more restrictive standards, including a prohibition against siting jails within one mile of residential property. The court held that there was no requirement that the conditional zoning district standards incorporate the conditional use permit standards from a parallel conventional zoning district.
[29] If a proposed condition is unacceptable to the owner, the petition can be withdrawn and the proposed rezoning cannot go forward. Likewise, if a condition is unacceptable to the governing board (or the owner refuses to agree to a desired condition), the petition can be denied and there is no rezoning.