April 2020
The initial authority to regulate county development in North Carolina was extended to individual counties by special act of the General Assembly. Forsyth County received authority to undertake zoning in 1947, and Durham County was granted that authority in 1949.[1]
Authority to enact county zoning was extended to most counties in the state in 1959.[2] Every county now has general authority to enact land-development regulations throughout the part of the county that lies outside of municipal jurisdiction.[3] The court of appeals confirmed in Cumberland County v. Eastern Federal Corp.[4] that a county’s exercise of zoning power only in the unincorporated portion of the county had a reasonable basis and did not violate the equal-protection provisions of the state or federal constitutions.
G.S. 160D-201(b) allows county development regulations to be adopted throughout the county except in areas subject to municipal planning and development-regulation jurisdiction.[5] Once a city has established an extraterritorial ordinance, the county has no jurisdiction in that area for any of its land use–related powers, including regulations or programs related to zoning, subdivisions, building codes, community development, historic districts or landmarks, open space, housing codes, or community appearance.[6] Unlike land-development regulations, a county’s general-police-power ordinances may be applied in the extraterritorial area[7] (and a city may not extend its general-police-power ordinances beyond its corporate limits).
Whether property is or is not within a county is a factual question that determines the threshold issue of applicability of a county zoning ordinance.[8] An illustration of this is provided by Guilford County Planning & Development Department v. Simmons.[9] The board of adjustment denied a variance for chicken houses located along the Guilford-Alamance county border. The trial court held that the site of the buildings was in Alamance County. The court of appeals held that failure of the defendant to file a judicial appeal of the board of adjustment’s decision that the property was in Guilford County did not waive the fundamental question, whether the board had subject-matter jurisdiction. The court held that where there was conflicting information about the location of the county boundary line, the finding of fact by the trial court that the property was outside the county was not to be disturbed if it was supported by competent evidence.
G.S. 160D-202(f) enables counties to exercise land-development-regulatory power within a city’s boundaries upon request from the city’s governing board. The request from the city and the acceptance by the county must be in the form of a resolution formally adopted by each governing board.[10] Any such request or approval may be revoked at any time by mutual agreement of both jurisdictions or with two years’ written notice by either of the entities acting alone.
Counties also have the option of regulating only part of the unincorporated portion of the county. Prior to the adoption of Chapter 160D, G.S. 153A-342 required that such an area originally contain at least 640 acres and have at least ten tracts in separate ownership. Subsequent additions to these areas could be of any size. Some counties used this authority to adopt zoning in areas immediately around cities, around lakes and recreation areas, or in densely populated townships while leaving the more rural portions of the counties unregulated. The limitation of a minimum 640-acre area is not continued in G.S. 160D-201 or G.S. 160D-702, so there is greater flexibility for partial-county regulation.
A county must be careful to clearly delineate its intentions regarding the scope of its jurisdiction.[11] In State v. Baggett,[12] the court dismissed criminal charges regarding violation of an adult-entertainment-siting ordinance because it was not clear whether or not this ordinance, adopted under the county’s general ordinance making authority, was intended to apply within the city’s extraterritorial area.
[1]. S.L. 1947-677 (Forsyth County); S.L. 1949-1043 (Durham County). Other local acts authorized activity in individual counties. See, e.g., S.L. 1949-400 (Clay County); S.L. 1951-1193 (Dare County). The Dare County authorization allowed zoning of selected areas of the county upon petition of 15 percent of the property owners of the area. A similar authorization for Guilford County was introduced in 1951 (H.B. 1128) but not adopted. In other instances county regulation was authorized to deal with particular development issues. Cumberland County was given zoning authority in 1957 to protect the area around the newly established Methodist College outside of Fayetteville. S.L. 1957-1455. By 1958, six counties had been granted authority to enact zoning (Cumberland, Dare, Durham, Forsyth, Guilford, and Perquimans). In addition, counties had been granted authority for floodplain zoning (in 1956) and airport zoning (in 1941).
[2]. S.L. 1959-1006. This law exempted thirty-one counties from its coverage.
[3]. G.S. 153A-320.
[4]. 48 N.C. App. 518, 269 S.E.2d 672, review denied, 301 N.C. 527, 273 S.E.2d 453 (1980).
[5]. G.S. 130A-55(17) allows certain sanitary districts to adopt zoning ordinances that have the same jurisdiction and effect as municipal ordinances. To qualify, the sanitary district must adjoin an incorporated area and also be within three miles of two other cities. Application of this authority is quite rare. Also, G.S. 63-31 allows both cities and counties to adopt airport zoning regulations for “the area surrounding any airport” within the jurisdiction. The city or county may also apply the airport zoning regulations extraterritorially, if necessary, to protect the approaches to airports owned by the city or county. G.S. 63-31(d). Although many airport zoning provisions have been incorporated into general zoning ordinances, separate airport zoning regulations continue to exist.
[6]. G.S. 143-215.57 establishes an exception to this general rule for floodplain regulations. If a city exercises ETJ, it may apply city floodplain regulations to that area, even if they are included in a separate ordinance rather than incorporated into the city zoning ordinance. However, if the city elects not to exercise floodplain regulations in the extraterritorial area, the county may apply its own floodplain regulations to that area.
[7]. G.S. 153A-122.
[8]. Guilford Cty. Planning & Dev. Dep’t v. Simmons, 102 N.C. App. 325, 401 S.E.2d 659, review denied, 329 N.C. 496, 407 S.E.2d 533 (1991).
[9]. 115 N.C. App. 87, 443 S.E.2d 765 (1994).
[10]. G.S. 160A-360(g).
[11]. A county general-police-power ordinance can be applied to any part of the county not within a city’s corporate limits. G.S. 153A-122. This includes a city’s ETJ. By contrast, a county zoning ordinance cannot be applied within a city’s extraterritorial area unless the city requests the county to so apply it. G.S. 160A-360(d).
[12]. 133 N.C. App. 47, 514 S.E.2d 536 (1999).
