State statutes define the land divisions subject to coverage by local subdivision ordinances. 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.
The Definition of a Subdivision in North Carolina
David W. Owens
Gladys Hall Coates Professor of Public Law and Government
School of Government, The University of North Carolina at Chapel Hill
© 2014
May 2014
State statutes define the land divisions subject to coverage by local subdivision ordinances. 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.
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.[3]
The statutory definition of a subdivision also includes the following four exemptions:[4]
- 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 are equal to 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;[5]
- The public acquisition by purchase of strips of land for the widening or opening of streets or for public transportation system corridors;[6] and
- The division of a tract in single ownership whose entire area is no greater than 2 acres into not more than three lots, where no street right-of-way dedication is involved and where the resultant lots are equal to or exceed the standards of the municipality, as shown in its subdivision regulations.
Three Guys Real Estate v. Harnett County[7] 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. A revised plat filed after suit was filed 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 court, however, concluded that the statutory exemption of G.S. 153A-335(a)(2) is clear and unambiguous: If all lots created by a subdivision exceed ten acres and there is no public right-of-way dedication involved, the subdivision is 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 ordinance does not, however, exempt the development from other types of local development regulation. In Tonter Investments, Inc. v. Pasquotank County,[8] 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 ordinance. Prior to any development of the lots, the county amended its zoning ordinance to prohibit residential uses in the county’s A-2 zoning district (in which two of the plaintiff’s tracts were located) and to allow residences in the A-1 zoning district (in which the plaintiff’s third tract was located) only if the lot had a specified minimum frontage on a state road and was within 1,000 feet of a public water supply. 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 ordinances.”[9]
Also see these blog posts in Coates Canons:
Adam Lovelady, Subdivision Performance Guarantees (Feb. 2014)
Rich Ducker, Land Subdivision Ordinances: The Regulatory Excceptions (May 2011)
Rich Ducker, Subdivision Ordinances: What's Regulated, What's Not (April 2011)
[1] G.S. 153A-335; 160A-376. A variety of local modifications have been adopted. Recent examples include: S.L. 2004-46 (Pitt County, exempting divisions among heirs and transfers within an immediate family and repealing previous modifications for Harnett County); S.L. 2003-79 (Chowan County, exempting division of land as part of estate settlement but allowing denial of other permits if other regulations not met); S.L. 2002-141 (Chowan County, ordinance applicable only to divisions into three or more lots and exempting gift of single lot by parent to child); S.L. 2001-189 (Richmond County, allowing categories of subdivision approvals); S.L. 2000-11 (Richmond County, exempting divisions into parcels greater than five acres with no right-of-way dedication); S.L. 1999-125 (Jones County, exempting divisions into parcels greater than five acres with no right-of-way dedication); S.L. 1998-37 (Stanly County, revising large-lot exemption from five acres to ten acres); 1996 N.C. Sess. Laws ch. 565 (affecting divisions within the Rose Hill extraterritorial area); 1995 N.C. Sess. Laws ch. 78 (Davie County, changing large-lot exemption to parcels greater than five acres and exempting certain intrafamily and court ordered transfers), ch. 337 (Montgomery County, various exemptions, including intrafamily transfers and divisions over five acres with no right-of-way dedication); 1994 N.C. Sess. Laws ch. 574 (Stanly County, exempting certain divisions over five acres), ch. 638 (Robeson County, exempting some divisions greater than two and one-half acres), ch. 131 (Robeson County, exempting certain intrafamily transfers), ch. 195 (repealing Lincoln County modification); 1992 N.C. Sess. Laws ch. 972 (Transylvania County modifications). There has been some trend toward eliminating some of these local variations. See, e.g., S.L. 2007-207 (repealing a 1993 exemption applicable to Pasquotank County); S.L. 2007-237 (deleting prior exemption in Stanly County for lots of at least 20,000 square feet with at least 100 feet of road frontage); S.L. 2006-189 (repealing exemptions created for Rutherford County).
[2] The N.C. Attorney General’s office in 1975 expressed the view that creation of one lot 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 is being created. 44 Op. N.C. Att’y Gen. 251 (1975). The opinion goes on to say 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 are 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. S.L. 2005-426, secs. 4(a) and 4(b).
[3] 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).
[4] The exemptions are listed in G.S. 153A-335(a)(1) through (4).
[5] 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 1955 N.C. Sess. Laws ch. 1334. The 1971 comprehensive revision of the municipal statutes changed this to ten acres. 1971 N.C. Sess. Laws ch. 698. The same change was made for counties. G.S. 153-266.7, as created by 1959 N.C. Sess. Laws ch. 1007, provided for a five-acre exemption, and this was adjusted to ten acres in 1973 by 1973 N.C. Sess. Laws ch. 822.
[6] The provision for public transportation system corridors was added effective July 1, 2003, by S.L. 2003-284, sec. 29.23(a).
[7] 345 N.C. 468, 480 S.E.2d 681 (1997).
[8] 199 N.C. App. 579, 681 S.E.2d 536, review denied, 363 N.C. 663, 687 S.E.2d 296 (2009). In 2011 the General Assembly amended the county zoning statute to restrict use of this approach. S.L. 2011-384 enacted G.S. 153A-340(j) 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 fifty percent of the land is used for agriculture or silvaculture (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.
[9] Id. 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).
