Since 1951 North Carolina statutes have made city and county zoning regulations applicable to the erection, construction, and use of buildings by the State of North Carolina and its political subdivisions.
Government Buildings and Land Uses
[Adapted from Owens, Land Use Law in North Carolina (4th ed., 2023)]
Government Buildings
Some states exempt state, municipal, and county land uses from zoning regulations. That is not the case in North Carolina.
Absent an explicit statutory provision subjecting government buildings to local land use regulation, the general rule is that local zoning does not apply to the state and its political subdivisions.[1] To address that issue, the General Assembly in 1951 adopted G.S. 160D-913. This statute makes city and county zoning regulations applicable to “the erection, construction, and use of buildings by the State of North Carolina and its political subdivisions.” Thus, if a building is involved, zoning restrictions apply to land uses owned or operated by cities, counties, and the state.[2] These statutes only apply to local regulations adopted pursuant to the zoning-enabling statute. Other local land-development ordinances are not included.
The statute does provide, however, that land owned by the state may not be placed in an overlay or conditional zoning district without approval of the Council of State.[3]
Since a building is required to trigger application of zoning, and given that land uses per se are not covered, an open-air use of land without a building is not subject to local zoning. A landfill, parking area, or wetlands-mitigation site might fit this situation. The court of appeals held in Nash–Rocky Mount Board of Education v. Rocky Mount Board of Adjustment[4]that construction of a new bus parking lot at an existing high school was not subject to city zoning jurisdiction.[5] However, when a new building is involved, zoning regulations do apply to all aspects of the construction and use of that building, including provision of mandatory off-street parking.[6]
One North Carolina case addresses the possibility that governmental functions may have some interjurisdictional zoning immunity. In Davidson County v. City of High Point,[7] the court of appeals ruled that a sewage-treatment plant was not a “building” under G.S. 160D-913 but rather was a “public enterprise” under G.S. 153A-274 and thus was not subject to zoning control. The state supreme court affirmed on different and narrower grounds and expressly refused to address the correctness of this rationale of the court of appeals.
The land and facilities of the federal government are not subject to local zoning. The statute regarding compliance with zoning for state buildings does, however, apply to the construction and alteration of National Guard armories. While the Guard can be “federalized” and called in to service, it is still a state agency.[8]
Government Flags
G.S. 144-7.1, enacted in 2005, limits regulation of official governmental flags.[9] This statute applies to the official flags of the United States and any other nation recognized by the United States, all fifty official state flags, and the official flag of any local government in the United States or its territories. The flags that are covered must be displayed in accordance with federal law[10] and must be displayed with the approval of the owner of the land involved. Reasonable nondiscriminatory regulations can be imposed on flag size, the number of flags, their location, and the height of flagpoles.
[1].Yancey v. N.C. State Highway & Pub. Works Comm’n, 222 N.C. 106, 109, 22 S.E.2d 256, 259–60 (1942).
[2]. A number of cases review other aspects of zoning and public buildings, all assuming the fundamental application to publicly owned buildings. See, e.g., McDonald v. City of Concord, 188 N.C. App. 278, 655 S.E.2d 455, review denied, 362 N.C. 360, 662 S.E.2d 906 (2008) (zoning conditional use permit required for county law enforcement center); Carter v. Stanly Cnty., 125 N.C. App. 628, 482 S.E.2d 9, review denied, 346 N.C. 276, 487 S.E.2d 540 (1997) (upholding the adequacy of a published notice of hearing on a zoning-text amendment that added “government owned buildings, facilities, and institutions” to a list of permitted uses in the face of a challenge by neighbors objecting to the subsequent location of a state prison on the site). The court of appeals has also held that city and county ordinances adopted under the general police power can be applied on state-owned land. Slavin v. Town of Oak Island, 160 N.C. App. 57, 584 S.E.2d 100 (2003) (upholding town ordinance limiting construction of dune crosswalks over nourished beach where title to the affected area had vested in the state).
[3]. Since the consent of the landowner is required for all rezonings to conditional districts, the principal impact of this restriction is placement of state-owned properties in overlay districts such as historic-preservation districts.
[4]. 169 N.C. App. 587, 610 S.E.2d 255 (2005). The school board secured driveway and fence permits and then constructed a gravel lot to park additional school buses at a preexisting school. Adjacent neighbors complained about the lot’s noise, dust, traffic congestion, and trash. The city then advised the school board that a special use permit would be required for continued operation of the lot. The city then denied the special use permit application. The court held that the parking lot could not be considered a “building” under the plain meaning of the statutory language; thus, the city could not require a special use permit to limit use of the parking lot.
[5]. In 2004, the General Assembly addressed this issue by amending the statute to make municipal zoning applicable to the use of land as well as to the construction and use of buildings. However, in 2005 the General Assembly repealed the 2004 change so that the statute again provided that local zoning only applied to the state and local governmental entities when a building was involved.
[6]. Orange Cnty. v. Town of Hillsborough, 219 N.C. App. 127, 133–34, 724 S.E.2d 560, 565 (2012). The court held that the town’s zoning authority over the county’s construction of a courthouse addition included the authority to regulate mandated parking for the building. Presumptively this rationale would also apply to landscaping, signage, driveways, and similar regulatory requirements associated with construction and use of a building.
[7]. 85 N.C. App. 26, 354 S.E.2d 280, modified and aff’d, 321 N.C. 252, 362 S.E.2d 553 (1987). Prior to enactment of statute making government buildings subject to zoning, the court in McKinney v. City of High Point, 237 N.C. 66, 74 S.E.2d 440 (1953) held zoning was not applicable to government functions in a case involving a public water tank.
[8]. G.S. 127A-29 provides that the National Guard has dual status as a state militia and federal status as a reserve component of the armed services. “The National Guard functions in each state as a state agency under state authority and control, while at the same time remaining subject to regulations and orders issued by the Secretaries of the Army and Air Force, the Defense Department, and the National Guard Bureau.” Culbreth v. Ingram, 389 F. Supp. 668, 674 (E.D.N.C. 2005).
[9]. It is an open question as to whether this is still a permissible content-neutral distinction under Reed v. Town of Gilbert, 576 U.S. 155 (2015
[10]. 4 U.S.C. §§ 5–10 (2005).
Also see these blog posts in Coates Canons:
David Owens, Does the County Have to Comply with City Zoning?
