AN ACT TO MAKE CHANGES TO THE LAND USE REGULATORY LAWS OF THE STATE. Enacted July 22, 2016. Effective July 22, 2016.
Summary date: Jul 28 2016 - View summary
Summary date: Jul 1 2016 - View summary
Senate committee substitute makes the following changes to the 4th edition.
Deletes all proposed provisions and replaces them with the following.
Amends GS 160A-385, concerning changes in city zoning and development regulation, by adding a new subsection to require the written consent of the owner regarding a multi-phased development, as defined in GS 160A-385.1(b)(7), for amendments in zoning ordinances, subdivision ordinances, and unified development ordinances to be applicable or enforceable. Establishes that a multi-phased development is vested for the entire development with the zoning ordinances, subdivision ordinances, and unified development ordinances in place at the time a site plan approval is granted for the initial phase of the multi-phase development. Further establishes that a right vested under new subsection (b1) remains vested for a period of seven years from the time a site plan approval is granted for the initial phase of the multi-phase development. Adds a new subdivision to GS 160A-385.1(b) to define multi-phase development to mean a development containing 100 acres or more that (1) is submitted for site plan approval for construction to occur in more than one phase and (2) is subject to a master development plan with committed elements, including a requirement to offer land for public use as a condition of its master development plan approval.
Amends GS 153A-344, concerning amendments to county zoning ordinances, by adding a new subsection identical to new subsection (b1) of GS 160A-385, as enacted by the act. Adds a new subdivision to GS 153A-344.1(b) to define multi-phase development identically as the term is defined in new subdivision (7) of GS 160A-385.1(b), as enacted by the act.
Applies to multi-phased developments with approved site plans that are valid and unexpired on the effective date of the act, and to multi-phased developments approved on or after the effective date of the act.
Summary date: Jun 21 2016 - View summary
Senate committee substitute makes the following changes to the 3rd edition.
Deletes changes made to GS 143-755 concerning permit choice for development and its applicability to zoning permits.
Amends GS 160A-385 (applicable to counties) and GS 153A-344 (applicable to cities), modifying language concerning the applicability of certain ordinances or regulations to already issued building permits, providing that amendments in land development regulations, as specified, including zoning ordinances or unified development ordinances, are not applicable or enforceable without the written consent of the owner with regard to building, uses, or developments for which either a zoning approval that authorizes use of land or a building permit has been issued. Continues to modify language concerning amendments to zoning approval or building permits, adding new subsections (b1) and (b2), providing that such amendments are also not applicable or enforceable without the written consent of the owner if a vested right has been established, with vested rights remaining valid and unexpired or if a vested right is established pursuant to a development agreement. Provides that an established vested right prevents action by cities or counties that would change or delay development or use of the property as stated in the application, with an exception for where there is a change in State or federal law mandating local government enforcement after an application is submitted. Further includes new provisions concerning the vesting of all stages of a multi-phase development at the time of application for the initial phase when the developer has given notice of the multiple phases of the project and has submitted a plan reasonably showing the type and intensity of use for specific parcels of property, including phase boundaries. Provides that once a right is vested, it remains vested for ten years. Includes a disclaimer that nothing prevents a judicial determination of the existence of a vested right. Act provides that these vesting provisions above are effective in regards to phased development approvals that are valid and unexpired on the effective date of the act.
Amends proposed GS 160A-393.1, which provides that in lieu of an appeal to a board of adjustment, specified parties can maintain an original action in superior court or business court for declaratory relief, injunctive relief, damages, or any other remedies provided by law or equity when specified claims or defenses are asserted. The proposed committee substitute amends the list of parties and the specified claims and defenses, deleting the previous claims or defenses and replacing them with the following: (1) the ordinance violates the United States or North Carolina constitutions; (2) the ordinance or the final decision of the administrative official is invalid or unenforceable on grounds of ultra vires, pre-emption (including pre-emption under GS 160A-174(b)), or is otherwise in excess of authority; (3) the ordinance or the final decision of the administrative official violates common law or statutory vested rights of the aggrieved person; or (4) or the ordinance or the final decision of the administrative official constitutes a taking of property. Provides that claims arising from the same final decision can be joined together (previously only allowed the party to raise other such claims or defenses without mention of joining them together). Replaces subsections concerning time frames for filing of actions and means for obtaining relief with provisions establishing that actions brought pursuant to these provisions must be commenced within one year after the date the written notice of the final decision was delivered to the aggrieved party by personal delivery, electronic mail, or first-class mail. Modifies provisions concerning available remedies providing that those entitled to an action under this statute can elect instead to present claims or defenses by way of appeal to the board of adjustment and can appeal a decision by the board of adjustment. Provides, however, that once an appeal has been filed and its hearing before the board of adjustment has commenced, that party cannot thereafter bring an action as authorized by this section (previous language allowed pursuing the administrative remedy of a variance). Adds new provisions requiring the notice of action commenced to abutting landowners by first-class mail. Requires notice to be mailed no later than 30 days after the commencement of the action.
Deletes proposed conforming changes made to GS 160A-364.1(c) concerning the statute of limitations for certain causes of action of development regulations.
Modifies proposed changes to GS 160A-393, provisions concerning the appeals of quasi-judicial decisions of decision-making boards such as the planning board or board of adjustment, requiring the court to decide de novo on specified claims and defenses, including if the ordinance on its face or as applied by final decision of the administrative official violates the US or NC Constitutions, that the ordinance or final decision of the administrative official is invalid or unenforceable on grounds of ultra vires, pre-emption (including pre-emption under GS 160A-174(b)), or is otherwise in excess of authority; or the ordinance or the final decision of the administrative official violates common law or statutory vested rights of the aggrieved person (previously required claims or defenses including the invalidity if an ordinance, a constitutional matter, preemption, 42 USC 1983, or common law vested rights).
Amends proposed GS 160A-393.2, No estoppel effect when challenging unlawful conditions, adding new language which provides that local governments are not permitted to raise estoppel or other grounds as a defense to the challenge by a landowner or permit applicant concerning unlawful conditions imposed on a development.
Amends provisions in GS 6-21.7 that previously allowed the court to award reasonable attorneys' fees upon a finding that the city or county violated a statute that set clear limits on its authority or otherwise abused its discretion, now providing that fees can be awarded on a finding that the city or country violated a statute or case law that set unambiguous limits on its authority. For the purposes of this section, defines unambiguous as meaning the limits of authority are not reasonably susceptible to multiple constructions.
Amends GS 160A-372 (applicable to cities) and GS 153A-331(e) (applicable to counties) providing that subdivision control ordinances can provide for performance guarantees at either the time the plat is recorded or at a time after the recording but must be before a permit is issued. Specifies that if an ordinance is not adopted that sets out performance guarantees that comply with the statute, then cities or counties are not authorized to require the successful completion of required improvements prior to a plat being recorded. Sets out other conditions for performance guarantees, providing that the type and term of the performance guarantee, including any extension, is at the election of the developer provided that any performance guarantee or extension is available to assure the successful completion of improvements for which it is required. Further provides that reductions in the amount of the performance guarantee is allowed by developers reflecting only remaining incomplete items. Sets out additional provisions concerning performance guarantees for cities only, specifically the process for determining the 125% reasonable cost of completion figure, as well as providing the option of posting different forms of performance guarantees. Further sets out who has any claim to any performance guarantee proceeds, including the local government, developer, or entity issuing the guarantee.
Amends GS 160A-381(c) (applicable to cities) and GS 153A-340(c1) (applicable to counties) concerning regulation of special use or conditional use permits, specifying that cities and counties have no authority to establish certain conditions and safeguards, such as taxes, impact fees, building design elements which are not voluntarily offered by the petitioner, excess street improvements not permitted by statute, driveway-related improvements in excess of statute, or other such limitations on development or use of land.
Amends GS 153A-352(b) (applicable to counties) and GS 160A-412(b) (applicable to cities), clarifying that local governments cannot adopt or enforce local ordinances or resolutions requiring regular, routine inspections of buildings or structures that require such inspections beyond requirements of the NC Building Code (previously, language only stated that could not adopt such ordinances).
Amends GS 160A-307 concerning the regulation of driveway connections into any street or alley and deleting a provision that established that in instances of conflict between the Department of Transportation driveway regulations and the driveway improvements required by the city, the more stringent requirement is enforced. Adds language providing that a city cannot require applicants to acquire right-of-way from property not owned by the applicant in regards to driveway improvements.
Changes made to GS 160A-372(g)(6), by Section 7 of this act, are declarative of existing law as to all performance guarantees issued pursuant to GS Chapter 160A or GS Chapter 153A and is not intended to be a change in existing law as to performance guarantees whenever issued. The remainder of this act is effective when it becomes law, and applies to permit applications filed, permits previously issued which remain valid and unexpired on the date this act becomes law, actions filed in court, and claims and defenses asserted on or after that date.
House committee substitute makes the following changes to the 1st edition.
Amends GS 160A-385(b), pertaining to cities, to clarify that the zoning permit required to fulfill the land development regulations in this subsection includes, but is not limited to a site plan approval, a special exception permit or any other permit or approval given under the authority of Chapter 160A, Article 19, that authorizes the use of land.
Makes the same clarifying change to GS 153A-344(b), pertaining to counties.
Amends new GS 160A-393.1 to clarify that the provisions of this section regarding civil actions for relief or other remedies are available to any landowner, permit applicant or tenant aggrieved by a final and binding decision involving the enforcement or application of a city or county zoning ordinance or any other ordinance that regulates land. Makes additional clarifying changes to this section.
Amends GS 160A-364.1(c) to provide that nothing in this section or in GS 1-54(10) or GS 1-54.1 bars a party in an action involving the enforcement of a zoning or unified development ordinance from raising the invalidity of the ordinance as a defense to the enforcement action.
Amends GS 6-21.7 to provide that in any action in which a city or county is a party, if the court finds that the city or county violated a statute setting forth clear limits on its authority (was, or otherwise abused its discretion), then the court must award reasonable attorneys' fees and costs to the party who successfully challenged the city's or county's action. In all other matters, the court may award reasonable attorneys' fees and costs to the prevailing party (was, private litigant).
Deletes changes to GS 1A-1, Rule 65, which deleted the provision exempting the State of North Carolina or any county or municipality, or any officer or agency acting in official capacity from paying a security prior to the issuing of a restraining or preliminary injunction.
Clarifies that the act applies to permit applications filed, actions filed in court, and claims and defenses asserted on or after the effective date of this act, October 1, 2015.
House amendment makes the following change to the 2nd edition.
Amends new GS 160A-393.2, which prohibits precluding a landowner or permit applicant from challenging any unlawful condition imposed on a development as part of the application of land development regulations as a result of the landowner or permit applicant's actions to proceed with the development or use, to provide that this section does not apply to rezoning decisions.
Summary date: Apr 2 2015 - View summary
Amends GS 143-755 concerning permit choice for development, providing that this section also applies to zoning permits. Deletes language which previously provided that it did not apply to zoning permits.
Amends GS 160A-385(b) and GS 153A-344(b), both concerning the applicability of certain ordinances or regulations to already issued building permits, providing that amendments in land development regulations, as specified, including zoning ordinances or unified development ordinances, are not applicable or enforceable without the written consent of the owner with regard to building, uses, or developments for which either a zoning permit or a building permit has been issued before the enactment of the changes or amendments as long as either permit remains valid and unexpired (previously, amendments in zoning ordinances were not applicable or enforceable without consent of the owner with regard to buildings and uses for building permits issued prior to the enactment of the change(s) as long as the permits remain valid as specified or a vested right has been established and remains valid as specified). Also adds language that provides that written consent is required for changes or amendments to be enforceable if a vested right has been established as specified or if a vested right is established by the terms of a development agreement.
Enacts new GS 160A-393.1, Civil action for declaratory relief, injunctive relief, or other remedies, establishing an appeal process for landowners, permit applicants, or tenants that have been aggrieved by a final and binding decision involving ordinances that regulate land use or development. Provides that in lieu of an appeal to a board of adjustment, these parties can maintain an original action in superior court or business court for declaratory relief, injunctive relief, damages, or any other remedies provided by law or equity when specified claims or defense are asserted, including constitutional matter or the invalidity of the development regulation. Sets out timelines for filing an action as well as establishing the hearing process as the exclusive means for obtaining relief after an appeal has been concluded pursuant to GS 160A-388(b1).
Amends GS 160A-364.1 concerning the statute of limitations for certain causes of action of development regulations, making a conforming change.
Amends GS 160A-393, provisions concerning the appeals of quasi-judicial decisions of decision-making boards such as the planning board or board of adjustment, expanding the scope of review for writs of certioari, providing that a petitioner can assert and the court must determine de novo claims or defenses including the invalidity if an ordinance, a constitutional matter, preemption, 42 USC 1983, or common law vested rights. Specifies when such claims or defense must be made known to the decision-making board. Makes conforming changes.
Enacts new GS 160A-393.2, No estoppel effect when challenging unlawful conditions, providing that landowners or permit holders cannot be precluded from making a timely challenge to any unlawful condition imposed as a result of land development regulations as specified as a result of actions by the landowner or applicant to proceed with the development or use.
Amends GS 6-21.7 to provide that the court can award reasonable attorneys' fees upon a finding that the city or county violated a statute that set clear limits on its authority or otherwise abused its discretion (previously, allowed such awards upon a finding that the city or county acted outside the scope of its legal authority). Adds language that attorneys' fees can be awarded to the prevailing private litigant in all other matters. Makes technical and clarifying changes.
Amends GS 6-19.1, concerning attorney's fees to parties appealing or defending against an agency decision, providing that in specified civil actions, unless the State is the prevailing party, the court must allow the prevailing party to recover reasonable attorneys' fees arising under GS Chapter 150B, Article 3, or any other provision of law if specified conditions are met (was, the court could in its discretion allow the prevailing party to recover fees for contested cases arising under GS Chapter 150B, Article 3, if specified conditions are met). Provides that one of the specified conditions to be met is that an agency acted without substantial justification and adds language which clarifies that the lack of substantial justification is conclusively established when an agency acts in violation of a statute that sets clear limits on its authority.
Amends GS 1A-1, Rule 65, Injunctions, of the Rules of Civil Procedure, deleting language which provided that no security for a restraining order or preliminary injunction will be required of the State or of any county or municipality, or any officer or agency acting in an official capacity.
Effective October 1, 2015.