Tuesday, August 16, 2022

North Carolina zoning law tidy-up has cities and counties working from same playbook

This zoning map of northern New Hanover County shows the diversity of uses. A North Carolina law has spurned house-keeping changes to local zoning ordinances that should help modernize the processes. (Port City Daily/New Hanover County)

Lawmakers have majorly spruced up North Carolina zoning law for the first time in decades. The movement, designed to sharpen and streamline land-use regulations for cities and counties, is the product of years of N.C. General Assembly back-and-forth. 

Chapter 160D — the piece of consensus, house-keeping legislation — passed in 2019. The pandemic delayed its implementation, but cities and counties statewide are currently working to amend their ordinances to fit in line with the language by a July 2021 deadline. 

The big picture of Chapter 160D is cities and counties will be brought together under one roof when it comes to the zoning playbooks they’ll operate from. Previously, the separation of municipal and county zoning policies had caused some headaches, according to Adam Lovelady of the UNC School of Government.

“There were some peculiar differences that didn’t seem intentional; they just seemed like mistakes that had to be corrected,” Lovelady said.

Some of the legislation’s miscellaneous provisions include bolstering the conflict of interest policy for local boards and staff, and also ensuring that nearby property owners who are located across the street from a proposed development will be invited to voice their perspectives at community information meetings. 

As to the more in-depth changes, Chapter 160D consolidates the zoning jargon. Now, any quasi-judicial proceeding will involve a special use permit, making conditional use permits extinct (and automatically transforms conditional use districts to conditional zoning districts). This legislation upholds the difficult nature of opposing SUPs, which private citizens can only substantially object to by hiring attorneys or expert witnesses, while keeping actual adjustments to policy to a minimum.

[Read more about the types of rezoning and development applications: here]

These terms boil down to whether or not a local government has the authority to impose specific conditions on a development application. In a straight rezoning — where an applicant asks for a switch in zoning and nothing else — such an imposition is squarely illegal. 

More recently, conditional zoning requests have become all the rage. These applications come forward with an intended use clearly spelled out, allowing community members and local staff to poke and prod a developer’s plan, with the hope that no surprises appear upon buildout. 

City council and county commissioners can levy site-specific “conditions” on these applications, while still acting with broad legislative authority. Developers often adhere to these conditions to appease the public and regulatory body to shepherd through the project.

When a developer wants to use a piece of land in ways that are workable in some cases, and difficult to manage in others, that’s when special use permits come into play. Applying for an SUP requires a savvy attorney, preferably one with experience in the jurisdiction. These hearings are quasi-judicial, meaning they resemble a court trial in that only facts and expert testimony are permitted to sway the governing board. 

Chapter 160D came at the behest of the N.C. Bar Association, specifically its zoning, planning and land use section, Lovelady said. It was a non-controversial political process, he said.

“There were no changes as part of that process that would be a big substantive change,” he said. “If any of the interest groups, or local governments, or other advocacy groups didn’t support something, then it came out of 160D.” 

Rebekah Roth, the planning director for New Hanover County, said the legislation streamlines the different processes and removes a clunky method of conditional land use — the conditional use district — that was often hard to understand. 

By July 2022, local governments must have a comprehensive plan in order to impose their zoning regulations. New Hanover County made such a document in 2016, and more recently presented Chapter 160D-required alterations to its local ordinances in front of the planning board. 

While the legislation creates the potential to limit the power of the planning board in quasi-judicial hearings — giving counties an option to remove that step altogether in some cases — New Hanover opted to keep the board in place for those types of applications. Even though the board of commissioners cannot take the planning board’s recommendation into account as evidence in a SUP hearing, the planning board plays an integral role, Roth said. 

“We wanted to make sure we kept that public role, and we wanted to provide a place for that planning-board feedback,” she said. “In our experience we found it to be very beneficial both for the adjacent neighbors and for the applicants, to make sure they’re well prepared when they get to that public hearing in front of the commissioners.” 

Pender County Planning Director Travis Henley said his department’s work has been minimal, mostly making sure language lines up, as Pender County never allowed conditional use districts to begin with. 

“For Pender County, our updates are overwhelmingly just updates to references or changes in definitions or wording for the purposes of clarity and consensus, as well as updates to hone in conflict of interest statements and things of that nature,” Henley wrote in an email.

Lovelady, the School of Government professor, said Chapter 160D boils down to a modernization of N.C. zoning law, which previously was a taped-together collection of regulations that had been accumulating by no design since the early decades of the 20th century.

“There have been lots of different processes and lots of different names for similar and different processes at the local level, and under 160D, there’s still a lot of flexibility for local governments to craft the zoning districts that fit for them,” he said. “There is still lots of flexibility there, but there is some kind of clarification and uniformity.”

Read more about Chapter 160D at the UNC School of Government’s website, where they offer an analysis utilized by planning staff across the state. 

And read more about the effects Chapter 160D will have on New Hanover County ordinances: here.

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