Bill Summary for H 722 (2019-2020)

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Summary date: 

Apr 11 2019

Bill Information:

View NCGA Bill Details2019-2020 Session
House Bill 722 (Public) Filed Thursday, April 11, 2019
Intro. by D. Hall, Bell, Conrad, Richardson.

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Bill summary

Identical to S 355, filed 3/26/19.

Amends GS 143-755, regarding permit choice by development permit applicants, to more specifically provide for the development permit applicant to choose which adopted version of a rule or ordinance will apply to the permit, and now also apply to the use of the building, structure, or land indicated on the permit application, in the event the rule or ordinance is amended between the time the development permit application was submitted and a development permit decision was made. Defines development permit to include zoning permits, site plan approvals, special use permits, variances, certificates of appropriateness, plat approvals, development agreements, building permits, subdivision of land, State agency permits for development, driveway permits, erosion and sedimentation control permits, and sign permits. Specifies that a rule or ordinance amendment includes an amendment to any applicable land development regulation. Adds further specifications for permit choice, including: (1) allowing the applicant to act on the permit without awaiting the outcome of a rule, map, or ordinance amendment if the applicant chooses the version of the rule applicable at the time of the permit application and (2) providing for permit choice in instances where an applicable rule or ordinance is amended after the development permit is wrongfully denied or after an illegal condition is imposed, determined as specified. Prohibits the enforcement of any provision of the applicant's chosen version of the rule or ordinance determined to be illegal for any reason without the written consent of the applicant. Details a process to compel agency or local government compliance with the statute or GS 160A-360.1 (regarding permits in cities and towns) or GS 153A-320.1 (regarding permits in counties). Defines development and land development regulation. Makes conforming changes to GS 160A-360.1 and GS 153A-320.1, and adds that the definitions set out in GS 143-755, as amended, apply to the statutes.

Makes the following changes to zoning and land use provisions set out in GS Chapter 160A (concerning cities) and GS 153A (concerning counties).

Makes organizational changes to GS 160A-385, concerning changes in city zoning ordinances, recodifying GS 160A-385(c) as GS 160A-385(b)(5). Amends the statute concerning written comments by citizens of proposed amendments, modifications, or repeals of zoning ordinances, to specify that the comments and procedure are limited to those proposed amendments, modifications, or repeals of zoning ordinances that have been properly initiated as provided in GS 160A-384, and include changes to zoning maps or texts. Makes orgnanizational changes to GS 153A-344, concerning changes in county zoning ordinances, recodifying GS 153A-344(b1) as GS 153A-344(b)(5).

Further amends GS 160A-385 (concerning cities) and GS 153A-344, to provide that amendments to land development regulations are not applicable or enforceable without the written consent of the owner with regard to: (1) buildings or uses of buildings or land for which a development permit application has been submitted and issued pursuant to GS 143-755, as amended; (2) subdivisions of land for which a development permit authorizing the subdivision has been submitted and issued pursuant to GS 143-755, as amended; (3) a vested right established pursuant to GS 160A-385.1 or GS 153A-344.1 that remains valid and unexpired under GS 160A-385.1 or GS 153A-385.1 (appears to intend, or GS 153A-344.1); (4) a vested right established by the terms of the development agreement authorized by Part 3D of Article 19, GS Chapter 160A, or Part 2D of Article 18, GS Chapter 153A; and (5) a multi-phased development in accordance with GS 143-755, as amended (previously provided for limited enforcement of amended zoning ordinances without consent for buildings and uses for which valid and unexpired permits were issued or rights were vested as specified; restricted the limited enforcement of amended zoning, subdivision, and unified development ordinances without written consent to multi-phased developments). Now provides that multi-phased developments are vested for the entire development with land development ordinances (previously referred to 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-phased development, with the right vested for seven years from the time a site plan approval is granted for the initial phase of the multi-phased development. Previously, both GS 160A-385 and GS 153A-344 defined multi-phased development to mean the same as defined in GS 160A-385.1(b)(7) or GS 153A-344.1(b)(7), which each define the term to mean a development containing 100 acres or more submitted for site plan approval for construction to occur in more than one phase and is subject to a master plan with committed elements, including a requirement to offer land for public use as a condition of its master development plan approval. Now defines multi-phase developmentin GS 160A-385 and GS 153A-344 to mean a development containing 25 acres or more that is both submitted for development permit approval to occur in more than one phase and subject to a master development plan with committed elements showing the type and intensity of use of each phase. Makes conforming deletions to GS 160A-385.1 and GS 153A-344.1.

Adds new provisions concerning the statutory vesting granted by GS 160A-385 and GS 153A-344, providing that the vested rights established pursuant to the statutes are effective upon filing of the development permit application pursuant to GS 143-755 for so long as the permit remains valid under the law. Provides that local development permits expire one year after issuance unless work authorized by the permit has substantially commenced or otherwise specified by statute. Clarifies that a permit is issued either in the ordinary course of business of the agency or by the applicable governmental agency as a court directive. Adds that vested rights established under the statutes do not preclude vesting under one or more subdivisions of the respective statute or by application of common law principles. Establishes that established vested rights preclude any action by a city or county that would change, alter, impair, prevent, diminish or otherwise delay the development or use as provided in the development permit application, except where a change in State or federal law mandated enforcement after the application that has a fundamental and retroactive effect on development or use. Defines development permit and land development regulation as those terms are defined in GS 143-755, as amended.

Makes conforming changes to GS 160A-384 and GS 153A-343 regarding the method of procedure for changes to zoning map amendments. Removes existing language which requires actual notice to affected landowners for requests for zoning map amendments which are not made by the land owner, to instead prohibit any zoning map amendment to be initiated or enforceable without the written consent of all property owners whose property is the subject of the zoning map amendment. Maintains the exception for the initiation and enforcement of zoning map amendments by cities and counties.

Amends GS 160A-388, regarding appeals to the board of adjustment of administrative decisions regarding the enforcement of land use and/or development regulations. Now requires written notice of the administrative decision to include language that the determination is final and that the party for whom the notice is given has a right to appeal in order for the decision to be effective. Further, now specifies that an appeal of a notice of violation or other enforcement order stays enforcement of the action appealed including any accumulation of fines during the pendency of the appeal to the board of adjustment and any subsequent appeal pursuant to GS 160A-393 (quasi-judicial decisions appealed to superior court) or during the pendency of any civil proceeding authorized by law, including GS 160A-393.1, as enacted, or appeals therefrom, unless the official certifies a stay would cause imminent peril to life or property or would seriously interfere with the enforcement of the ordinance.

Enacts GS 160A-393.1, allowing a person claiming a statutory or common law vested right to have the right reviewed by the zoning administrator or other officer designated by regulation, whose decision can be appealed to the board of adjustment under GS 160A-388(b1). Alternatively to judicial review, provides for the person claiming the vested right to bring a civil action for declaratory relief, injunctive relief, damages, or any other remedies available by law, in superior court or federal court to challenge the enforceability, validity, or effect of a local land development regulation, for the specified claims. Provides for the procedure of the civil action, standing of a claimant, and joinder of the claim. Requires the action be brought within one year of the date on which written notice of the final decision is delivered to the aggrieved party. Provides that the definitions of GS 143-755, as amended, apply. Makes conforming changes to GS 160A-364.1.

Amends GS 160A-393, concerning superior court review of appealed administrative decisions, to now require a court to allow the record to be supplemented with evidence to the extent the petition raises standing, impartiality, or scope of review issues, as previously specified (previously allowable at the court's discretion). Adds that the rules of discovery set forth in the NC Rules of Civil Procedure apply to the supplementation of the record of those described issues. Specifies that the court can review the decision-making board's decision as specified to ensure the rights of the petitioner were not prejudiced because the decision-making body's decisions, inferences, conclusions, or decisions were in excess of the statutory authority conferred to the city, including preemption (previously did not explicitly include preemption). Makes clarifying changes regarding the court's scope of review. Specifies that the term competent evidence excludes items noted in sub-subdivisions a., b., and c. of subdivision (k)(1) that are conclusively incompetent (constitutional violations, exceeding statutory authority, and inconsistent with statutory or adopted ordinance procedure). Further clarifies that competent evidence does not include opinion testimony of lay witnesses as to property use, vehicular traffic, or matters for which only expert testimony would be admissible, regardless of the lack of timely objection. Modifies the provisions regarding relief the court may grant the petitioner, now requiring the court to remand if the court determines the permit was wrongfully denied because the denial was not based on substantial competent evidence or was otherwise based on an error of law, with instructions that the permit be issued, subject to any conditions expressly consented to by the permit applicant as part of the application or during the board of adjustment appeal or writ of certiorari appeal (previously was permissive, and the remand with instruction to issue the permit was subject to reasonably and appropriate conditions). Adds a new provision requiring the court to reverse a zoning board decision if it finds that the decision upholding a zoning enforcement action was not supported by substantial competent evidence or was otherwise based on an error of law.

Enacts GS 160A-393.2, prohibiting a city or county from asserting an estoppel defense before any board of adjustment or in any civil action if the landowner or permit applicant is challenging conditions that were illegally imposed.

Amends GS 6-21.7, requiring a court to award reasonable attorneys' fees and costs to the party who successfully challenged a city or county action that was found to have violated a statute or case law setting forth unambiguous limits on its authority (previously, allowed the award of fees and costs upon finding the city or county acted outside its scope of authority, and required the award upon finding the action was an abuse of discretion). Defines unambiguous. Adds a provision to require the court to award reasonable attorneys' fees and costs to the party who successfully challenged a city or county's noncompliance or violation of GS 160A-360.1, GS 153A-320.1, or GS 143-755, as amended by the act. Clarifies that the court can award reasonable attorneys' fees and costs in all other matters to the prevailing litigant. 

Amends GS 160A-381 and GS 153A-340, explicitly restricting cities and counties from issuing special use permits or conditional use permits that impose unenforceable regulations or restrictions, including without limitation taxes, impact fees, building design elements not voluntarily offered by the petitioner, street improvements in excess of those authorized, driveway improvements in excess of those authorized, or other unauthorized limitations on the development or use of land, as specified. Prohibits the denial of a development permit authorized by GS 160A-381(c) and GS 153A-340(c1) on the basis that existing public facilities are inadequate to serve the property described in the permit application regardless of the type of use or development of said property.

Amends GS 160A-382 and GS 153A-342 regarding the placement of property in special use districts, conditional use districts, or conditional districts. Prohibits cities and counties from requiring, enforcing, or incorporating into the zoning regulations or permit requirements any condition or requirement not authorized by otherwise applicable law, including without limitation requirements as specified (identical to those unauthorized limitations specified in GS 160A-381 and GS 153A-340, as specified).

Amends GS 160A-307 regarding city curb cut regulations. Prohibits a city from requiring an applicant to acquire right-of-way from property not owned by the applicant, but allows an applicant to voluntarily agree to acquire the right-of-way. Removes the provision that held the more stringent driveway regulation controlling where the Department of Transportation and the city driveway improvements conflict.

Amends GS 160A-390 and GS 153A-346, prohibiting the use of a definition of building, dwelling, dwelling unit, bedroom, or sleeping unit inconsistent with any definition of the same in other State law, including the State Building Code Council (previously, did not include building or dwelling within the scope and limited the prohibition to using definitions that are more expansive than those in other State law; did not explicitly include the Council).

Applies to ordinances adopted before, on, and after the date the act becomes law. Applies to zoning map amendment applications submitted and appeals filed on or after the date the act becomes law.