NORTH CAROLINA — Several local governments are considering expansive revisions to flood protection regulations after experiencing severe flooding in recent months. A controversial hurricane recovery bill, Senate Bill 382, contains a provision that could put a brake on those initiatives.
READ MORE: Prohibiting new residences in flood zones? Leland addresses potential ordinance changes
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General Statute 160D-601 allows municipalities to initiate downzoning amendments — reducing development density or permitted uses for a property. Municipalities may choose to downzone properties to preserve natural features or limit impervious surfaces in flood prone areas.
However, a provision buried in the last page of the 131-page S.B. 382 would require written consent from all property owners subject to a downzoning. The GOP supermajority in the Senate overrode Gov. Roy Cooper’s veto of the purported disaster relief bill Monday; the House reconvenes Thursday, but it remains unclear when it will hold its vote on an override and whether it will have enough votes for it to become law.
S.B. 382 expands the definition of downzoning to include ordinances that create any type of nonconformity for land that is not in a residential zoning district. Nonconformities refer to land uses — such as structures or lots — that were present before the current zoning of the property, yet don’t match contemporary standards. The bill would apply to ordinances enacted 180 days before it becomes law, which would become void and unenforceable.
The North Carolina Chapter of the American Planning Association, the League of Municipalities, and several local elected officials raised concerns the provision could cause expansive limitations to municipal zoning authority and undermine long-term planning strategies.
This could affect Leland’s recent consideration of ordinance changes in flood-prone areas. The town is looking into the legality and feasibility of a range of options — including limiting development density in flood zones and prohibiting new residences in flood hazard areas — after severe flooding in September caused damage to at least 19 properties in Leland’s Stoney Creek neighborhood; the area also flooded after Hurricane Florence in 2018.
Leland council members Bill McHugh and Veronica Carter are concerned about S.B. 382’s impact on ordinance changes the town council asked staff to research last week.
“I would hope the General Assembly reconsiders their actions and assists municipalities in controlling growth by providing more tools, not taking away the few we have,” Carter wrote in an email to PCD on Monday. “This is written in vague terms that leave many questions that will probably be challenged by developers and municipalities.”
Leland’s chief building code official Daniel Knoch raised similar concerns about vague language and appropriate enforcement of a separate bill, S.B. 166, during a September discussion about the town’s flood zone ordinances. Knoch said the 2024 building code reform law would limit the town’s authority over grading — the process of reshaping land at a construction site — to limit flooding.
McHugh criticized the General Assembly and the North Carolina Home Builders Association — the lobby group that crafted the building code reform bill — for restraining local government authority at the September meeting.
In a video last week, North Carolina Home Builders Association legislative affairs director Steve Webb described S.B. 382’s downzoning provision as a “huge victory for property rights and a major victory for land owners who may have the intention of one day developing their property.”
Webb told Port City Daily Monday he could not speak to concerns regarding flood-prone areas and stormwater management.
“We did not ask for it, nor were we aware of it until the bill was shared publicly,” he wrote in an email. “I will add, landowners have expressed frustration about their property being downzoned without knowledge or permission. Oftentimes, the local government does this to force the owner to the negotiating table in an effort to force them to accept conditions that are favorable to the local government. At times, these conditions are not authorized by law, such as aesthetic controls, inclusionary zoning requirements, or impact fees.”
Business Alliance for a Sound Economy CEO Tyler Newman argued the provision could motivate local governments to more accurately quantify the impacts of ordinances on property owners.
“The crux appears to be that a property owner should have the ability to consent before their property rights are diminished,” he said.
Alternatively, the North Carolina Planning Association anticipates the downzoning provision could conflict with state requirements. Minimum state guidelines for floodplain management include:
- Complying with the National Flood Insurance Program requirements
- Prohibiting certain new uses such as landfills and chemical storage
- Ensuring certain facilities mitigate potential flood damage
To participate in the National Flood Insurance Program, communities must meet minimum requirements to protect new buildings from flood damage. FEMA’s Community Rating System incentivizes stricter floodplain regulations — including low density zoning in flood zones — with discounted insurance rates.
“The Chapter is deeply concerned about the process by which this legislation was advanced, particularly the lack of transparency and meaningful engagement with local governments and community stakeholders throughout our state,” the North Carolina Planning Association wrote in a statement last week. “Provisions such as this result in benefits to a few, while undermining the ability of municipalities to adapt zoning and land use regulations to meet the evolving needs of their communities.”
Newly elected New Hanover County commissioner Stephanie Walker similarly criticized the General Assembly for limiting local government input on development policy. She particularly pointed out how the southeastern corner of North Carolina’s coast, predominantly low-lying, faces environmental issues.
The Community Rating System ranks New Hanover in its Class Seven category — which provides a 15% discount for national flood insurance — for its coastal flood mitigation practices. The system has ten rankings; Class One communities receive the highest discount at 45%.
“Decisions for these concerns should be made locally because there are potential financial and safety consequences to these decisions,” Walker said.
Port City Daily reached out to Brunswick County staff — which is also considering changes to county ordinances to strengthen flood protection and stormwater management protections — and Wilmington City Council members about the provision. Only council member Salette Andrews responded by press.
“I support private property rights and I also support the responsibility of municipalities to provide for sustainable development,” she said. “The zoning prohibition included in S.B. 382 may pose challenges for Wilmington’s ability to plan responsibly for our community’s future.”
Last week, council member Luke Waddell expressed interest in less intensive zoning as a useful tool in city planning. His comment came amid council’s consideration of a rezoning request for a roughly 2.8-acre downzoning on S. Front Street.
S.B. 382 was unveiled an hour before the House held a contentious debate and voted to pass it Nov. 19. The bill contains dozens of provisions unrelated to Helene recovery but was not vetted in the normal committee process.
“Everything in this bill aside from the Helene relief is an attempt by the General Assembly to consolidate power,” McHugh said. “It strips powers from the Governor, the Attorney General, and local governments in an attempt to preserve the authority the General Assembly had before the people of North Carolina voted away their veto proof majority in November.”
