Notice of Hearings: Ordinance Amendments and Rezonings
State statutes require that the governing board hold a public hearing prior to the adoption, amendment, or repeal of any ordinance regulating development. Published newspaper notice is required for the hearing. In addition, if the ordinance amendment is a rezoning, individual notice of the hearing is required, including mailed, posted, and sometimes actual notice.
Published Notice
A local government must publish in a newspaper of general circulation two notices of the governing board’s required public hearing on a proposed adoption, amendment, or repeal of a land use regulation. The notice must be sufficiently detailed to allow citizens to discern what is being proposed and whether they would be affected.
G.S. 160D-601(a) requires published notice of the required public hearing. The notice must be published in a newspaper of general circulation[1] in the community once a week for two successive calendar weeks, with the first notice being published not less than ten or more than twenty-five days before the hearing.[2] The day of publication is not counted in computing these times, but the day of the hearing is included.
The court first addressed this required public notice of the mandated hearing in 1960 in Walker v. Town of Elkin.[3] The town rezoned a 3.56-acre tract from a residential to a neighborhood-business district and amended the text of the zoning regulation to allow utility storage yards in that district. The newspaper notice stated that both changes would be “thoroughly discussed” and that “[a]ll persons for or against these proposed changes are invited to be present and make whatever statements they desire.”[4] The court held that this was an adequate public notice.
The following year, in Helms v. City of Charlotte,[5] the court gave more detailed consideration to the extent of notice that was required. The only notice provided in Helms was a newspaper advertisement that gave a boundary description of the area being rezoned but did not include lot numbers, block numbers, or the owners’ names. The plaintiff in the case, who had no actual knowledge of the hearing or the ordinance amendment (the case predated the subsequently enacted requirement of mailed notice to the affected property owners), contended that although the statutory public-notice requirements had been met, his constitutional rights of due process had been violated. The court disagreed and held that actual notice to landowners was not constitutionally required.[6]
The published notice must provide sufficient detail to apprise interested parties of the nature of the proposed action. The notice should clearly indicate (1) what property is potentially affected, (2) the nature of the proposed regulation, and (3) the time and place of the public hearing on the proposal. A legal description of the affected property is not required, and the full text of the proposed ordinance does not have to be published.
A mere recitation of the statutes involved coupled with a posting of the date and time of the hearing is inadequate. For example, when Asheville first extended its zoning ordinance extraterritorially, the public notice said only that the hearing concerned “the adoption of an ordinance amending and revising Ordinance No. 322, as amended, the Zoning Ordinance of the City of Asheville.” The court of appeals held this to be inadequate:
By reading the notice, even the most diligent owner of property outside the city would have no reasonable cause to suspect that his property might be affected by the city’s contemplated amendment to its ordinance. To be adequate, the notice of public hearing required by G.S. 160A-364 must fairly and sufficiently apprise those whose rights may be affected of the nature and character of the action proposed.[7]
On the other hand, the court upheld the adequacy of a notice of 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.[8]
It is important that the proposed zoning text and map be available for inspection at the time notice is provided. If substantial changes are made in the proposed ordinance or amendments after the notice is provided and before the governing board considers the matter, an updated (and timely) additional notice is required. In Thrash Ltd. Partnership v. County of Buncombe,[9] the court invalidated a zoning-map amendment that extended partial-county zoning countywide because the maps were being adjusted to reflect individual landowner requests up until the day before the public hearing. The court concluded that the unavailability of final maps at the time of notice of the hearing precluded meaningful citizen comment and thus violated the statutory notice requirement.
Individual Mailed Notice
In the mid-1980s, in response to perceived inadequacies in the constitutional and statutory requirements for publishing a newspaper notice of a mandated hearing, the General Assembly added statutory requirements pertaining to mailed notices. More specifically, in 1985 the General Assembly amended the zoning-enabling act to require individual mailed notice to the parties most directly affected by certain legislative zoning decisions.[10] In 2004 the statutes were amended to also require a mailed hearing notice to the commanding officer of any military base located within five miles of a proposed rezoning.[11]
The exact formulation of the mailed-notice requirement has been subject to frequent legislative modification. In 1987 the provision was amended to exempt the total rezoning of an entire community from the requirement for a mailed notice.[12] The exemption was itself modified in 1990 to require mailed notice in a total rezoning if the rezoning involved down-zoning, or zoning to a less intense use.[13] The requirements for mailed notice also were subject to perhaps more modification by local legislation than any other mandated zoning procedure—some thirty-one local bills on the subject were enacted between 1985 and 1993.[14] The exemptions were rewritten in 1993 to create five exceptions to the mailed-notice requirement and to repeal most of the local modifications to the statute.[15] Finally, in 1995 the legislature completely rewrote the mailed-notice requirement and repealed all local modifications.[16]
G.S. 160D-602(a) requires individual mailed notices for hearings on proposed zoning-map amendments.. The 1985 session law establishing the mailed-notice requirement states that it applies only when tax maps are available for the area to be zoned.[17] Prior to 2006, G.S. 153A-343(c) exempted initial county zoning of territory from the mailed-notice requirement; that provision was repealed in 2005.[18]
The mailed notice is to be sent by first-class mail. It cannot be sent bulk rate and it does not have to be sent by registered or return-receipt mail. Some individual zoning ordinances require return receipts, and some zoning offices use it as a matter of office policy, but it is not required by statute. The certificate of the mailer serves as proof of compliance, provided there is no element of fraud.[19] The notice is to be mailed to the owners of the property proposed to be rezoned and all abutting property, as identified by the county tax records.[20] For the purpose of the required mailed notice, G.S. 160D-602 clarifies that “abutting” properties include those separated only by a street, railroad, or other transportation corridor.[21] Many local zoning regulations expand these mailings, such as requiring a mailing to the owners of all properties within a specified distance of the affected property.[22] An updated title search is not required to identify the owners, as the statute specifies that the notices go to the owners as shown on the county tax listing. The notice is to be mailed within the same time period in which the initial newspaper notice is to be published—at least ten but not more than twenty-five days prior to the public hearing on the proposed rezoning. The content of the mailed notice should be the same as the content of the published notice.
The mailed notice is required for all “zoning map amendments.” This clearly includes rezonings that amend zoning-district boundaries. It also includes application of new overlay zones. It does not apply to text amendments or to the initial adoption of zoning for a jurisdiction, as this is an “adoption” rather than an “amendment” of the zoning map. The application of the mailed-notice requirement is less clear when an existing ordinance is amended to add new territory to the coverage of a zoning regulation, as when a city annexes territory or a county with partial-county zoning moves to full-county zoning. It is likely that application of initial city or county zoning to a parcel added to an existing regulation does require a mailed notice, as this is an “amendment” to the zoning map to add additional territory.
The mailing must be sent to the owners of property included in the zoning-map amendment and all “abutting” owners. If only part of a parcel owned by one individual is being rezoned, is that individual both the owner and the owner of the abutting property? Such an interpretation would be consistent with the case law on eligibility to file a protest petition under the former statute. However, the language of this statute specifically refers to the abutting parcel of land, so presumably the owner of whatever is shown as a separate parcel on the county tax maps is the appropriate recipient of the notice. Another common practice is to mail a notice to all property owners within a set distance from the parcel affected that is specified in the ordinance, such as those within 500 feet, a practice facilitated by the increasing availability of local geographic information systems.[23]
While the statute does not specifically require the local government itself to make the mailing, by far the most common practice is for the jurisdiction to make it. Some ordinances require anyone petitioning for a rezoning to make the mailing; this is accomplished by requiring the person doing the mailing to provide a certificate that it was done. An alternative sometimes used is to require the petitioner to provide stamped, addressed envelopes to the local government to deposit in the mail.[24] Other local governments just require that a list of those to receive a mailed notice be provided as part of any petition for a rezoning.
There is an alternative procedure for individual mailed notices available when large-scale rezonings are involved. The statutes provide that if the rezoning is of at least fifty properties with at least fifty different owners, an expanded published notice may be partially substituted for mailed notice.[25] Cities and counties have the option in these situations of substituting two half-page newspaper advertisements for the mailing. Each advertisement must appear in a separate week. However, even with this expanded publication, mailed notice must still be sent to any property owners outside of the newspaper’s area of circulation, and signs must be posted on the site to advertise the hearing. Given the cost of half-page ads and the necessity of checking addresses for absentee owners, most local governments elect to use this option only for very large rezonings, such as the adoption of an entirely new zoning map for the entire jurisdiction.
Posted Notice
For many years the state statutes did not require the posting of a sign at the site of a proposed rezoning (with the exception of the expanded-published-notice option available for large-scale rezonings, discussed immediately above). In 2005 the statutes were amended to require a posted notice for all zoning-map amendments.[26] G.S. 160D-602(c) requires the county or city to prominently post a notice of the hearing on the site to be rezoned or on the adjacent street right-of-way. When multiple parcels are being rezoned, it is not necessary that each individual parcel be posted, but sufficient notices must be posted to provide reasonable notice to interested persons.
The state statute does not specify the content or size of the posted notice. In Rakestraw v. Town of Knightdale, the town posted a two-by-three-foot sign on the site of a proposed rezoning reading, “Town of Knightdale PUBLIC HEARING PROPERTY NOTICE—For More Information: [phone number].”[27] The court held this was adequate to identify and locate the property and that the sign need not contain the level of detail contained in published and mailed notices.
G.S. 160D-602(c) specifies the timing for posted notices. The notice is to be posted in the same time period as required for mailing notices: at least ten but not more than twenty-five days prior to the date of the hearing.[28] A substantial number of individual zoning ordinances also include a requirement of posting a notice of hearings at the site of the proposed rezoning. Most of these local requirements predate the state mandate for posted notices. Charlotte adopted such a requirement in 1954,[29] and a number of cities and counties subsequently did likewise.[30] To the extent these local provisions add to the minimum state posting requirement—they are mandatory and must be observed. If the local requirement is less demanding or contrary to the state requirements, the state statute prevails.
Actual Notice
In 2009, G.S. 160D-602(d) was amended[31] to require that actual notice of the hearing be given to the property owner[32] of land subject to a petition to amend a zoning map if that person did not initiate the rezoning petition. The requirement for actual notice does not apply if the rezoning petition was initiated by the city or county. The burden for providing this actual notice is on the third party requesting the rezoning. The statutory mandate for actual notice for third-party rezonings was repealed in 2019.[33]
The statutes required that when a petition for rezoning is made by a person other than the landowner or the local government, the petition must include a certification that the landowner has received actual notice of the application and notice of the public hearing. This requirement imposed a logistical challenge for local governments, as a third party filing a petition cannot certify at the time of application that a hearing notice has been served on the landowner because the hearing date is not set until after the application is accepted. Cities and counties therefore generally established a process to verify that the petitioner delivers the hearing notice between the time the hearing date is set and the hearing is held.[34]
The statute defined “actual notice” using the state’s Rules of Civil Procedure.[35] The general rule is that the notice must be personally delivered or sent via registered, certified, or delivery-receipt mail. If, after due diligence, notice cannot be made by personal service or return-receipt mail, notice may be made by published notice. However, this published notice requires more lead time than the standard published notices for zoning amendments because this published notice must be placed in the newspaper once a week for three successive weeks.
Optional Additional Notice
Some local development regulations require additional mandatory means of communicating with and securing the engagement of those affected by proposed amendments to the regulations. The most common such requirement is for someone proposing a conditional rezoning to meet with the neighbors and to summarize that meeting as part of the rezoning application. G.S. 160D-602(e) authorizes, but does not mandate, such a broader communication requirement.[36]
[1]. G.S. 1-597 defines a “newspaper of general circulation” for purposes of published notices. To qualify, the newspaper must have content that appeals to the public generally, it must have more than a de minimus number of actual paid subscribers, its subscribers must not be limited entirely to a single community, and it must be available to anyone desiring to subscribe. Great S. Media, Inc. v. McDowell Cty., 304 N.C. 427, 441–42, 284 S.E.2d 457, 467–68 (1981).
[2]. Several local governments have received legislative authorization to substitute electronic posting of hearing notices for newspaper publication. S.L. 2003-81 allows Cabarrus County to post notices of public hearings on ordinance amendments on the Internet rather than publishing the notice in the newspaper. The county has to use the same schedule as required for published notices and will still have to do any required mailed notices. S.L. 2003-161 does the same for Raleigh and Lake Waccamaw, with the added provision that this does not relieve the cities of any required posting of notice on affected sites. S.L. 2007-86 added Apex, Garner, and Knightdale to this list, and S.L. 2008-5 added Cary.
[3]. 254 N.C. 85, 118 S.E.2d 1 (1960).
[4]. Id. at 86, 118 S.E.2d at 3.
[5]. 255 N.C. 647, 122 S.E.2d 817 (1961).
[6]. Subsequently the court of appeals held, in Capps v. City of Raleigh, 35 N.C. App. 290, 241 S.E.2d 527 (1978), that actual personal notice of a proposed rezoning was not required and that the city could raise a laches defense based on constructive notice that met all of the statutory notice requirements. In this case the city published notice of the public hearing, mailed notice to nearby residents, and posted signs on the property advertising the hearing.
[7]. Sellers v. City of Asheville, 33 N.C. App. 544, 549, 236 S.E.2d 283, 286 (1977). By contrast, the court upheld the adequacy of a notice of a hearing to solicit comment on the proposed zoning of areas added to the town of Garner’s extraterritorial planning and development-regulation area. The notice stated that its purpose was “to consider proposed zonings and proposed long-range land use plans within the area recently added to the Town’s extraterritorial jurisdiction.” In re Raynor, 94 N.C. App. 91, 96, 379 S.E.2d 880, 883 , review denied, 325 N.C. 546, 385 S.E.2d 495 (1989). The notice went on to sketch a “rough description” of the area by using major streets as boundaries
[8]. Carter v. Stanly Cty., 125 N.C. App. 628, 629, 482 S.E.2d 9, 13 review denied, 346 N.C. 276, 487 S.E.2d 540 (1997). The court observed:
The mere fact that the notice provided was so generic that it did not pique plaintiffs’ interest does not, in and of itself, make the notice violative of § 160A-364. We are mindful that, in the eyes of a property owner, abutting a state prison is quite a different thing from abutting a veteran’s service office. However, we are a judicial, not a political, body. Since the Commission has adhered to the letter of the law, plaintiffs’ true remedy in this case is a political one, and that we cannot give.
Id. at 635, 482 S.E.2d at 13.
[9]. 195 N.C. App. 678, 673 S.E.2d 706 (2009).
[10]. S.L. 1985-595. The statute originally used the term “zoning classification action,” which is not defined in the statute, to trigger the mailed-notice requirement. Also, some local ordinances had provisions for mailed notice prior to enactment of the statewide requirement. See, e.g., Lee v. Simpson, 44 N.C. App. 611, 261 S.E.2d 295, review denied, 299 N.C. 737, 267 S.E.2d 662 (1980).
[11]. S.L. 2004-75, creating G.S. 160D-601(b) [153A-323(b); 160A-364(b)]. This requirement was modified by S.L. 2013-59. This law amended G.S. 160D-601(b) [153A-323(b); 160A-364(b)] to expand the types of development regulations that are to be submitted to the military base for review and comment. If the ordinance changes affect areas within five miles of a base perimeter, written notice is now to be provided for:
1. zoning maps,
2. permitted land uses,
3. telecommunication towers and windmills,
4. new major-subdivision preliminary plats, and
5. an increase in the size of an approved subdivision by more than 50 percent of its land area.
The last two items concern individual project review rather than legislative amendments. If no comments are received in thirty days, the opportunity to comment is deemed to be waived.
[12]. S.L. 1987-807.
[13]. S.L. 1989-980. The legislature has extended this mailed-notice requirement to land use regulations other than zoning. G.S. 160D-202(d), created in 1996, requires mailed notice for the hearing on proposed notice of amendments to extraterritorial boundaries (which must be mailed four weeks prior to the hearing instead of the ten to twenty-five days required for zoning-map-amendment mailings). G.S. 143-214.5(d) requires cities and counties that under their general police powers adopt ordinances to protect water-supply watersheds to post a mailed notice if the ordinances impose requirements that are more stringent than the statewide minimum standards adopted by the Environmental Management Commission.
[14]. Burdened by the high cost of individual mailings in cases where a substantial rezoning is proposed, individual local governments sought and received legislative relief prior to the 1993 and 1995 revisions to this requirement. The most common local modification was to allow publication of a large display advertisement in a local newspaper once a week for four weeks in lieu of mailed notices. Local modifications included the following: S.L. 1995-339 (Orange County); S.L. 1995-282 (Durham); S.L. 1994-737 (Asheboro); S.L. 1993-411 (Huntersville, Cornelius, Davidson) S.L. 1993-358 (Orange County); S.L. 1993-296 (Nash County, Franklin County and its municipalities); S.L. 1993-271 (Cabarrus, Forsyth, and Iredell counties and their municipalities; Rockingham and Yadkin counties; the municipalities in Rowan County); S.L. 1993-267 (Davie and Davidson counties, Forest City, Mocksville, King, Lexington, and Thomasville); S.L. 1993-156 (Watauga County); S.L. 1993-154 (Denton); S.L. 1993-139 (Stokes County); S.L. 1993-101 (Wilkes County, Wilkesboro, Ronda, North Wilkesboro); S.L. 1993-79 (Troy, Spencer); S.L. 1991-846 (Martin County); S.L. 1991-6 (Laurinburg); S.L. 1991-596 (Faison); S.L. 1989-904 (Bailey); S.L. 1989-198 (Warsaw); S.L. 1989-205 (Rose Hill); S.L. 1989-237 (Fairmont); S.L. 1989-252 (Wake County); S.L. 1989-312 (Wilson); S.L. 1989-314 (Rocky Mount); S.L. 1989-415 (Pittsboro, Chatham County); S.L. 1989-509 (Wake Forest); S.L. 1989-512 (Durham); S.L. 1989-516 (Durham County); S.L. 1989-565 (Cherryville, Lincolnton); S.L. 1989-568 (Elm City); S.L. 1988-903 (Bethel, Robersonville); S.L. 1988-915 (Clinton); S.L. 1987-155 (Granite Falls); S.L. 1987-165 (Stokes County); S.L. 1987-247 (Grifton); S.L. 1987-339 (Clinton); S.L. 1987-455 (Cabarrus, Iredell, and Yadkin counties; the municipalities in Alexander, Cabarrus, Iredell, and Rowan counties); S.L. 1987-594 (Southern Pines); S.L. 1985-879 (Henderson, Murfreesboro); S.L. 1985-936 (Chatham County and its municipalities); S.L. 1985-950 (Richmond, Scotland, Stanly, and Union counties, the municipalities therein, and Asheboro).
[15]. S.L. 1993-469.
[16]. S.L. 1993-546 specified that all previous local bills on this subject are repealed to the extent that they conflict with the revised provisions of G.S. 160A-384.
[17]. S.L. 1985-595, § 3. See Frizzelle v. Harnett County, 106 N.C. App. 234, 416 S.E.2d 421, review denied, 332 N.C. 147, 419 S.E.2d 571 (1992), in which the court of appeals held that the mailed-notice provision of G.S. 153A-343 did not apply because tax maps were not available for the area. However, in this case the ordinance itself required mailed notice and posting, which was not done. The court held that these ordinance requirements applied to initial adoption as well as to rezoning. The court also held that because the county had failed to raise the nine-month statute of limitations in its answer or to give notice of the statute to the plaintiff when the statute was raised in response to a summary-judgment motion, it was waived.
[18]. S.L. 2005-418, § 4(b).
[19]. In Rakestraw v. Town of Knightdale, 188 N.C. App. 129, 654 S.E.2d 825, review denied, 362 N.C. 237, 659 S.E.2d 739 (2008), the plaintiffs presented affidavits that not all of the mailed notices of a rezoning hearing were received. The court noted that the statute provides that if the mailer certifies the mailing of the notice, then that is deemed conclusive in the absence of fraud. Here the town made such a certification. As there was no evidence of fraud presented, there could be no issue of material fact regarding the mailing, and it was upheld as legally sufficient. The court reached the same conclusion in Good Neighbors of Oregon Hill Protecting Property Rights v. County of Rockingham, 242 N.C. App. 280, 774 S.E.2d 902, review denied, 368 N.C. 429, 778 S.E.2d 78 (2015), holding that when the staff member making the mailed notices certifies that they have been mailed, that certificate is deemed conclusive in the absence of an allegation of fraud.
[20]. The statute does not limit the mailing to owners within the jurisdiction making the rezoning. The owners of all abutting property, even if that property is in a different jurisdiction, should be mailed notice of the hearing.
[21]. This clarification was added by S.L. 2019-111. This 2019 amendment to the mailed-notice requirement also provides that if a rezoning is proposed in conjunction with an expansion of municipal extraterritorial jurisdiction, a single mailing may be made of the hearing on both the rezoning and the amendment of the extraterritorial-boundary map. If a single mailing is made, it is to be done at least thirty days prior to the date of the hearing, as opposed to mailing within the ten- to twenty-five-day window for mailing otherwise required for a rezoning hearing.
[22]. The most-used distances range from 100 to 500 feet from the boundary of affected parcels. If included in a local ordinance, these additional mailings are mandatory and must be observed.
[23]. In other states, a mailed notice must be sent to all owners within a fixed distance from the property being rezoned. See, e.g., Mason v. Cty. Comm’n of Franklin Cty., 551 S.W.3d 54 (Mo. Ct. App. 2018) (applying statute requiring mailed notice of hearing to owners of property within 600 feet of rezoned property).
[24]. For example, under the Wilmington zoning regulation, a rezoning petition is not complete unless it includes a list of the tax parcel numbers for all properties within a 100-foot buffer of the property proposed to be rezoned, along with the names and addresses of their owners, plus a stamped and addressed envelope for each owner. At least ten days before the hearing, the planning department mails a notice describing the petition and the hearing on it in the provided envelopes. Wilmington, N.C., Land Development Code § 18-118 (2018).
[25]. G.S. 160D-602(b). Prior to 2006 four half-page advertisements were required.
[26]. S.L. 2005-418, § 4(a) and 4(b). There was one earlier instance of a statutory requirement for a posted notice of zoning hearings. The 1923 zoning-enabling act required a published notice in the local newspaper. However, several small towns that did not have a local newspaper elected to adopt zoning and the question arose how the published notice could effectively be done in those places. The resolution was that the statute was amended in 1927 to provide that if there was no newspaper in the town, it was to post a notice of the hearing in four prominent places at least fifteen days before the hearing. Subsequent recodifications of the statute eventually deleted this posted-notice alternative.
[27]. Rakestraw v. Town of Knightdale, 188 N.C. App. 129, 134, 654 S.E.2d 825, 829, review denied, 362 N.C. 237, 659 S.E.2d 739 (2008).
[28]. The specification for the timing of posted notices was added to the statute by S.L. 2019-111.
[29]. The Clearinghouse, Popular Gov’t, Mar. 1954, at 1.
[30]. For example, as provided by the Winston-Salem/Forsyth County zoning regulation:
In all cases of petitions to amend a zoning classification, the property shall be posted with a notice of public hearing by the Elected Body at least fifteen (15) days prior to the date of said public hearing. Said notice shall consist of a sign(s) posted on the property at a conspicuous location(s) or on an adjacent public street or highway right-of-way, which sign shall be legible from the nearest public road. Location(s) which are not conspicuous or require additional notification to the public will be required to have a directional sign(s) posted. The signs are and shall remain the property of the governmental agency which provided them, and shall be prepared, posted, and reclaimed by it. When multiple parcels are included within a proposed amendment, a posting on each individual parcel is not required, but there shall be sufficient signs posted to provide reasonable notice to interested persons.
Winston-Salem/Forsyth County, N.C., Unified Development Ordinance § 6-2.1(G)(3) (2018).
[31]. S.L. 2009-178.
[32]. The property owner to be notified is the owner as shown on the county tax listings.
[33]. S.L. 2019-111, § 1.5. This section eliminated third-party initiation of downzonings, which was the primary rationale for requiring actual notice. Actual notice can still be mandated by local ordinance provision, but it is no longer mandated by state statute.
[34]. Cities and counties typically require the rezoning petitioner to submit to the unit of government a certification that actual notice has been provided, with the certification to be submitted no later than a specified time prior to the hearing (such as seven days prior to the date of the hearing).
[35]. G.S. 1A-1, Rule 4(j), sets out detailed standards on how the notice is to be provided.
[36]. This provision was added by S.L. 2019-111. When Charlotte secured a local bill authorizing conditional zoning prior to the amendment of the state zoning-enabling statute, neighborhood meetings were mandated.
