Bill Summary for S 419 (2017-2018)
|View NCGA Bill Details||2017-2018 Session|
AN ACT TO REORGANIZE AND CLARIFY STATUTES REGARDING LOCAL PLANNING AND DEVELOPMENT REGULATION.Intro. by Lee, McKissick.
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Includes whereas clauses.
Enacts new GS Chapter 160D, Local Planning and Development Regulation, which consolidates, reorganizes, and clarifies local planning and development regulations previously found in GS Chapter 153A, Article 18 (Planning and Regulation of Development for counties), and GS Chapter 160A, Article 19 (Planning and Regulation of Development for cities and towns), and recodifies and updates those statutes to by including changes made in 2015 and 2016 session laws. Consolidates city and county planning and development statutes, making the provisions applicable to local governments, while retaining necessary differences, and makes conforming changes. Additionally, makes the following changes.
Article 1, General Provisions
Establishes the scope of Article 1 as follows. Sets forth that the provisions of Article 1 apply to all development regulations and programs adopted pursuant to new GS Chapter 160D or applicable or related to local acts. Establishes that GS 160D-1-12 (intends GS 160D-1-11?) is applicable to the extent there are contrary provisions in local charters or acts, unless GS Chapter 160D expressly provides otherwise. Further establishes that Article 1 applies to any other local ordinance that substantially affects land use and development. Provides that Article 1 is supplemental to specific provisions included in other Articles in GS Chapter 160D, and establishes that the more specific provisions control if the two are in conflict. Permits local governments to apply any definitions and procedures authorized by GS Chapter 160D to any ordinance that does not substantially affect land use and development adopted under the general police power of cities and counties, Article 8 of GS Chapter 160A and Article 6 of GS Chapter 153A respectively, and permits local ordinances to employ any organizational structure, board, commission, or staffing arrangement authorized by GS Chapter 160D to any or all aspects of those ordinances. Clarifies that new GS Chapter 160D does not expand, diminish, or alter the scope of authority for planning and development regulation authorized by other GS Chapters.
Adds the defined terms administrative decision, administrative hearing, bona fide farm purposes, charter, conditional zoning, decision-making board, determination, development approval, development regulation, evidentiary hearing, governing board, legislative hearing, legislative decision, local government, planning and development regulation jurisdiction, site plan, special use permit, subdivision, subdivision regulation, zoning map amendment, and zoning regulation. Amends the definitions to comprehensive plan, developer, landowner, planning board, quasi-judicial decision, and vested right.
Adds to the authorization permitting a local government to combine any regulations authorized by GS Chapter 160D into a unified development ordinance, establishing that the inclusion of a regulation authorized by GS Chapter 160D or local act in a unified development ordinance does not expand, diminish, or alter the scope of authority set by those regulations.
Adds new GS 160D-1-4 establishing that all rights, privileges, benefits, burdens, and obligations created by development approvals pursuant to GS Chapter 160D are property rights that attach and run with the land unless otherwise provided by law. Defines development approval to mean an administrative or quasi-judicial approval made pursuant to GS Chapter 160D that is written and required prior to commencing development or undertaking a specific activity, project, or development proposal. Establishes that the term includes but is not limited to zoning permits, site plan approvals, special use permits, variances, and certificates of appropriateness. It also includes plat approvals, development agreements, and building permits.
Requires GS 160D-1-5 that zoning district boundaries and any other boundaries included within a map that are part of a development regulation adopted pursuant to GS Chapter 160D to be drawn on a map adopted or incorporated within a duly adopted development regulation. Directs that adopted zoning district maps are to be maintained in the office of the local government clerk or another office specified in the development regulation. Permits the zoning maps to be in paper or digital format. Authorizes development regulations to reference or incorporate by reference flood insurance rate maps and watershed boundary maps officially adopted or promulgated by state and federal agencies. Allows the regulation text or zoning map to reference a specifically adopted map or incorporate by reference the most recent officially adopted version of the agency map. Further permits the development regulation to provide that the zoning district boundaries are automatically amended to remain consistent with the changes in the promulgated state and federal maps so long as a copy of the currently effective version is maintained for public inspection in the office of the local government clerk or other specified office. Authorizes copies of the zoning district map reproduced by any method of reproduction that provides legible and permanent copies to be admissible as evidence and carry the same force and effect as the original map if the copies are certified by the local government clerk in accordance with GS 160A-79 or GS 153A-50 (concerning maps as evidence in actions and proceedings before courts or administrative bodies).
Amends the provisions requiring the refund of illegal fees in GS 160D-1-6 to clarify that the local government is to refund the tax, fee, or monetary contributions plus 6% interest per annum to the person who made the payment or as directed by a court if the person making the payment is no longer in existence.
Makes organizational, clarifying and technical changes to the provisions in GS 160D-1-7 pertaining to the adoption of temporary moratoria on development approvals, including adding subsection descriptors. Additionally, clarifies that the governing board must hold a legislative hearing (was, a public hearing) before adopting a development regulation that imposes a development moratorium with a duration of 60 days or less, except in cases of imminent and substantial threat to public health and safety. Defines legislative hearing to mean a hearing to solicit public comment on a proposed legislative decision. Amends the exceptions set forth to clarify that a development moratorium adopted pursuant to GS 160D-1-7 does not apply to any project for which a special use permit application has been accepted as complete (previously, for which a conditional use permit application or special use permit application has been accepted).
Amends the provisions pertaining to vested rights and permit choice in GS 160D-1-8. Deletes portions of the previously stated findings of the General Assembly. Consistent with prior rules, permits an applicant to choose which version of a regulation applies to the applicant's application when the application is made in accordance with local regulation and submitted for development approval required pursuant to GS Chapter 160D, and a regulation changes between the time the permit application was submitted and a permit decision is made. Adds new provision allowing a person claiming a statutory or common law vested right to submit information to substantiate the claim to the zoning administrator or other officer designated by a development regulation who is to make the initial determination as to the existence of the claimed vested rights. Defines vested right to mean the right to undertake and complete the development and use of property under the terms and conditions of an approval secured as specified in GS 160D-1-8 or under common law. Sets out a right to appeal the zoning administrator or officer's determination pursuant to GS 160D-4-5, enacted below, to the board of adjustment and thereafter superior court. Requires the existence of a vested right to be reviewed de novo on appeal. Alternatively permits a person claiming a vested right to bring an original civil action as provided by GS 160D-4-5(c).
Establishes that amendments in local development regulations are not applicable or enforceable with regard to development that has been authorized prior to the enactment of the regulation making the change(s) so long as one of the specified approvals remains valid and unexpired. Details the types of vested rights and specifies their respective limitations, including (1) building permits, expiring six months after issuance unless otherwise provided; (2) all other local development approvals, expiring one year after issuance unless otherwise provided; (3) site specific vesting plans, expiring two to five years as specified; (4) multiphase developments, remaining vested for a period of seven years as provided; and (5) development agreements approved under Article 10 of GS Chapter 160D, remaining vested indefinitely. Deletes the provisions concerning phased development plans. Details the relation to building permits, specific requirements, and the process of approval and amendments of site-specific vesting plans. Provides that if a site specific vesting plan is based on approval required by a local development regulation, the local government must provide whatever notice and hearing is required for that underlying approval; and if the site vesting plan is not based on approval required by a local government regulation, a legislative hearing with notice as required by GS 160D-6-2 must be held. Explicitly allows for an approved site-specific vesting plan and its conditions to be amended with the approval of the owner and the local government if (1) any substantial modification is reviewed and approved in the same manner as the original approval and (2) minor modifications are approved by staff, if defined and authorized by local regulation. Establishes that following approval or conditional approval of a statutory vested right (previously, of a site-specific development plan or a phased development plan), a local government can make subsequent reviews and require approval by the local government to ensure compliance with the terms and conditions of the original approval, so long as the reviews and approvals are not inconsistent with the original approval. Makes conforming changes to the subsection pertaining to exceptions, to clarify that the specified exceptions to vested rights applies to all statutory vested rights created by the statute, meaning site-specific vesting plans and multiphase development. Amends the first exception to clarify that zoning action can be taken that would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property as set forth in an approved vested right, if after notice and an evidentiary hearing (was, public hearing), it was found that (1) natural or man-made hazards on or in the immediate vicinity of the property would pose a serious threat to the public health, safety and welfare or (2) that the landowner or the landowner's representative intentionally supplied inaccurate information or made material misrepresentations that made a difference in the approval by the local government of the vested right. Further allows the local government to modify the affected provisions of a vested right upon finding that a change in State or federal law has a fundamental effect on the plan, after notice and an evidentiary hearing (previously did not specify evidentiary hearing). Defines evidentiary hearing to mean a hearing to gather competent, material, and substantial evidence in order to make findings for a quasi-judicial decision required by a development regulation adopted under this Chapter. Eliminates a miscellaneous provision that is now substantively included in the new term site-specific vesting plan in GS 160D-1-2.
Amends the provisions pertaining to conflicts of interest in GS 160D-1-9. Provides that a governing board member cannot vote on any legislative decision regarding a development regulation adopted pursuant to GS Chapter 160D (previously, on any zoning map or text amendment) where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable impact on the member. Adds that a governing board member cannot vote on any zoning amendment if the landowner of the property subject to a rezoning petition or applicant for a text amendment is a person with whom the member has a close familial, business, or other associational relationship. Makes substantively identical changes to the conflict-of-interest provisions pertaining to members of appointing boards providing advice to the governing board. Similarly, prohibits any administrative staff member from making a final decision on an administrative decision required by GS Chapter 160D that would have a direct, substantial, and readily identifiable financial impact on the staff member or if the applicant or other person subject to that decision is a person with whom the staff member has a close familial, business, or other associational relationship. Further provides that if a staff member has a conflict of interest as described, the decision must be assigned to the supervisor of the staff person or other staff person as designated by the development regulation or ordinance. Defines close familial relationship as a spouse, parent, child, brother, sister, grandparent, or grandchild, and includes step, half, and in-law relationships.
Sets out provisions pertaining to statutory construction.
Expressly states that the enactment of GS Chapter 160D does not require the readoption of any local government ordinance enacted pursuant to laws that were in effect before the effective date of GS Chapter 160D, and are restated or revised herein. Nor does the new Chapter affect any act heretofore done, any liability incurred, any right accrued or vested, or any suit in prosecution begun or cause of action accrued as of the effective date of GS Chapter 160D. Provides that the enactment of GS Chapter 160D does not amend the geographic area within which local government development regulations adopted prior to January 1, 2019, are effective. Further provides that the savings provisions of GS 153A and 160A-3 are applicable to this Chapter, and the Chapter does not repeal or amend a charter or local act in effect as of the effective date of the Chapter unless the Chapter or a subsequent enactment of the General Assembly clearly shows a legislative intent to repeal or supersede that charter or local act. Adds language to modify provisions in local ordinances referencing repealed or superseded provisions that are inconsistent with this act to be consistent with this act.
Article 2, Planning and Development Regulation Jurisdiction
Amends provisions pertaining to municipal extraterritorial jurisdiction in GS 160D-2-2. Provides that municipal extraterritorial areas cannot be extended from a city's primary, contiguous boundaries and cannot be applied to satellite areas. Permits a city to exercise in its extraterritorial area all power conferred by GS Chapter 160D that it is exercising within its corporate limits. Adds new provision permitting a county to elect to exercise the particular type of regulation in the extraterritorial area if a city fails to extend that particular type of development regulation to the extraterritorial area. Clarifies that the hearing to be held prior to the adoption of an ordinance extending the area of extraterritorial jurisdiction is legislative (previously, only specified public) and that the required notice of the hearing is to be mailed at least 30 days prior to the date of the hearing (previously, four weeks prior to the hearing). Adds to the provisions concerning boundaries that boundaries can follow parcel ownership boundaries. Provides that prior to the transfer of jurisdiction authorized in previous provisions, the city or county receiving jurisdiction can adopt and effect regulations concurrently upon assumption of jurisdiction. Makes organizational and technical changes.
Adds new GS 160D-2-3 to authorize multiple local governments sharing jurisdiction on a single parcel of land to agree to assign exclusive jurisdiction for the entire parcel to one unit of local government. Requires the mutual agreement to be formally adopted by resolutions by each governing board and recorded with the register of deeds in the county where the property is located within 14 days of the adoption of the last required resolution.
Adds new GS 160D-2-4 to authorize a potential receiving jurisdiction to process applications and conduct hearings for proposed development where there is a pending shift in jurisdiction, so long as no final action can be taken prior to the actual transfer of jurisdiction.
Article 3, Boards and Organizational Arrangements
Consolidates existing provisions and updates references in the regulations concerning planning boards established or designated by local governments in GS 160D-3-1. Adds the express duty of a planning board to facilitate and coordinate citizen engagement and participation in the planning process, as well as the duty to provide a preliminary forum for review of quasi-judicial decisions provided that no part of the forum or recommendation can be used as a basis for the deciding board.
Adds to the provisions pertaining to boards of adjustment in GS 160D-3-2 to establish that if any board of adjustment is assigned decision-making authority for any quasi-judicial matter, that board must comply with all of the procedures and processes applicable to a board of adjustment in making quasi-judicial decisions.
Concerning historic preservation in GS 160D-3-3, recognizes that both counties and municipalities can establish historic preservation commissions. Makes conforming changes through GS 160D-3-3. Establishes that historic preservation commissions have the same duties specified in GS 160D-9-42.
Concerning appearance commissions, establishes in GS 160D-3-4 that appearance commissions have the duties specified in GS 160D-9-60. Makes technical changes.
Clarifies in GS 160D-3-5 that a local government can designate the board of adjustment as its housing appeals board instead of establishing a housing appeals board. Establishes that the housing appeals board has the duties specified in GS 160D-12-8.
Consistent with previous language, authorizes a local government in GS 160D-3-6 to establish additional advisory boards as deemed appropriate by ordinance. Requires the ordinance to specify the compositions and duties of an additional advisory board.
Clarifies in GS 160D-3-7 that the population estimates for the required proportional representation a city must satisfy in exercising extraterritorial powers must be updated no less frequently than after each decennial census. Adds the historic preservation commission to the boards and appearance commission that are required to have at least one resident of the entire extraterritorial planning and development regulation area if there are historic districts or designated landmarks in the extraterritorial area. Requires appointment of members of joint municipal-county planning agencies or boards of adjustment to be made by the county within 90 days (previously, 45 days) following the required hearing. Makes organizational and technical changes.
Establishes in GS 160D-3-8 that rules of procedure for any or all boards created by a governing board are binding, but in the absence of action by the governing board, each board created under Article 3 is expressly authorized to adopt its own rules of procedure consistent with GS Chapter 160D. Requires a copy of any adopted rules to be maintained by the local government clerk or other official designated by ordinance, and posted on the local government website if one exists. Directs each board to keep minutes of its proceedings.
Adds new GS 160D-3-9 to require all members appointed to boards under Article 3 to qualify by taking an oath of office as required by GS 153A-26 and GS 160A-61 before entering their duties.
Adds new GS 160-3-10 to clarify that unless otherwise specified by statute or local ordinance, all appointments to boards authorized by GS Chapter 160D must be made by the governing board of the local government. Permits the governing board to establish reasonable procedures to solicit, review, and make appointments.
Article 4, Administration, Enforcement, and Appeals
Establishes the scope of Article 4, consisting of the administration, enforcements, and appeals provisions, providing that Article 4 applies to all development regulations adopted pursuant to GS Chapter 160D. Permits local governments to apply any definitions and procedures authorized by Article 4 to any ordinance adopted under the general police power of cities and counties, Article 8 of GS Chapter 160A and Article 6 of GS Chapter 153A respectively, and employ any organizational structure, board, commission, or staffing arrangement authorized by Article 4 to any or all respects of those ordinances. Adds that the provisions of Article 4 are supplemental to specific provisions included in other Articles of GS Chapter 160D, and that the more specific provisions control if there is a conflict. Provides that Article 4 does not expand, diminish, or alter the scope of authority for development regulations authorized by GS Chapter 160D.
Expressly authorizes in GS 160D-4-2 local governments to appoint administrators, inspectors, enforcement officers, planners, technicians, and other staff to develop, administer and enforce development regulations authorized by GS Chapter 160D. Delineates the duties that local governments may include in the duties assigned to administrative staff, but does not limit local governments to those specified duties. Makes conforming change to permit a development regulation to require that designated staff members take an oath of office. Establishes that the administrative and enforcement provisions related to building permits set forth in Article 11, below, must be followed for those building permits. Concerning alternative staff arrangements, clarifies that a staff member that is designated from another city or county pursuant to GS 160D-4-2(c) must be considered an agent of the local government while exercising the duties of the position (previously, must be considered a municipal employee). Expressly authorizes local governments to fix reasonable fees for support, administration, and implementation of programs authorized by GS Chapter 160D, but limits the use of the fees to these purposes. Makes technical and clarifying changes.
Permits a local government to issue development approvals under GS 160D-4-3 in print or electronic form, requiring any development approval issued exclusively in electronic form to be protected from further editing once issued. Clarifies that applications for development approvals may be made by the landowner, a lessee, or person holding an option or contract to purchase or lease land, or an authorized agent of the landowner. Provides that a development regulation enacted under the authority of GS Chapter 160D can designate the staff member(s) charged with making decisions under the development regulation. Defines decision to include any final and binding order, requirement, or determination. Establishes that absent a different period specified by GS Chapter 160D, other applicable law, quasi-judicial development approval, a development agreement, or local ordinance, a development approval issued pursuant to Article 4 expires one year (previously, six months) after the date of issuance if the work authorized by the development approval has not been substantially commenced. Makes conforming changes. Adds that local development regulations can provide for development approvals of shorter duration for temporary land uses, special events, temporary signs, and similar development. Establishes that the time periods set out in GS 160D-4-3(c) are tolled during the tendency of any appeal, subject to the provisions of GS 160D-14-2(m). Clarifies that the local government must follow the same development review and approval process required for issuance of the development approval in the review and approval of any major modification of that approval. Concerning the revocation of development approvals, requires the local government to follow the same development review and approval process required for issuance of the development approval, including any required notice or hearing, in the review and approval of any revocation of that approval. Sets out that if an appeal is filed regarding a development regulation adopted by a local government pursuant to GS Chapter 160D, the provisions of GS 160D-4-5(e) regarding stays is applicable. Expressly authorizes a regulation adopted pursuant to GS Chapter 160D to require notice and/or informational meetings as part of the administrative decision-making process. Makes technical changes.
Sets forth notice requirements for violations of the terms of a development approval in GS 160D-4-4. Requires the person providing the notice of violation to certify to the local government that the notice was provided, and establishes this certificate conclusive in the absence of fraud. Permits a notice of violations to be appealed to the board of adjustment pursuant to GS 160D-4-5 except as provided in GS 160D-11-23, GS 160D-12-6 (concerning building permits), or otherwise provided by law. Makes organizational, technical and clarifying changes to the provisions pertaining to stop work orders and remedies.
Concerning appeals of administrative decisions in GS 160D-4-5, makes generalized changes to establish uniform times and procedures for all administrative appeals, with necessary variations provided in more specific provisions in other Articles. Provides that any board making quasi-judicial decisions is subject to the same procedures and limitations applicable to boards of adjustment making similar changes. Makes conforming changes throughout GS 160D-4-5 to refer to the "board" instead of "board of adjustment." Adds new provision to provide that a person with standing can bring a separate and original action to challenge the validity of an ordinance or development regulation without filing an appeal as specified. Establishes that in the absence of evidence to the contrary, notice made pursuant to GS 160D-4-5(b) given by first class mail is deemed to have been received on the third business day following deposit of the notice for mailing with the US Postal Service. Makes technical and clarifying changes.
Concerning quasi-judicial procedure, GS 160D-4-6 requires boards to follow quasi-judicial procedures in determining appeals of administrative decisions, special use permits, certificates of appropriateness, variances, or any other quasi-judicial decision. Clarifies that the required hearing under GS 160D-4-6 is evidentiary. Explicitly provides that the application, staff, report, and other relevant administrative materials must be provided to the board for appeals. Allows, but does not require, materials to be submitted to the board prior to the hearing, but requires copies be provided to all parties at the same time the material is distributed to the board. Establishes that the applicant, the local government, and any person who would have standing to appeal the decision under GS 160D-14-2(d) has the right to participate as a party at the evidentiary hearing. Permits other witnesses to present competent, material, and substantial evidence that is not repetitive as allowed by the board. Provides that objections regarding jurisdictional and evidentiary issues, including, but not limited to, the timeliness of an appeal or the standing of a party, may be made to the board. Requires the board chair to rule on any objections and allows the chair’s rulings to be appealed to the full board. Establishes that these rulings are also subject to judicial review pursuant to GS 160D-14-2. Further provides that objections based on jurisdictional issues may be raised for the first time on judicial review. Clarifies that not all staff members involved in staff review are required to attend the hearing, but instead only the official responsible for the decision is required to attend the hearing. Makes conforming, clarifying and technical changes.
Article 5, Planning
Enacts new GS 160D-5-1, requiring a local government to adopt and reasonably maintain a comprehensive plan as a condition of adopting and applying zoning regulations under GS Chapter 160D, to set forth goals, policies, and programs intended to guide the present and future physical, social, and economic development of the jurisdiction. Sets forth specifics that can be addressed in a comprehensive plan, as determined by the local government. Additionally, sets forth procedures and requirements for the adoption of a comprehensive plan, including a public hearing with published notice and planning board referral prior to the governing board's adoption of the plan. Provides that plans adopted prior to the effective date of this act are not affected.
Explicitly authorizes in GS 160D-5-3 a local government to undertake any of the planning activities authorized by Article 5 in coordination with other local governments, state agencies, or regional agencies created under Article 19 of GS 153A or Article 20 of GS Chapter 160A.
Article 6, Development Regulation
Clarifies the process for adoption of development regulations in GS 160D-6-1, providing that the required hearing is evidentiary in nature. Clarifies abutting for purposes of the notice requirement includes notice to properties immediately across a right-of-way even if properties do not touch because they are separated by a transportation right-of-way that is owned in fee rather than as an easement. Provides that if the zoning map amendment is being proposed in conjunction with an expansion of municipal extraterritorial planning and development regulation jurisdiction under GS 160D-2-2, a single hearing on the zoning map amendment and the boundary amendment may be held, and the initial notice of the zoning map amendment hearing may be combined with the boundary hearing notice and the combined hearing notice mailed at least 30 days prior to the hearing. Clarifies that the notice of a hearing for a zoning map amendment must be posted on the site proposed for the amendment or on an adjacent street or highway right-of-way within the same time period specified for mailed notices of the hearing. Adds that when a zoning amendment is proposed, a zoning regulation may require communication by the person proposing the map amendment to neighboring property owners and residents and may require the person proposing the zoning map amendment to report on any communication with neighboring property owners and residents. Makes organizational and technical changes.
Concerning the planning board's review and comment of a proposed zoning regulation, specifies in GS 160D-6-4 that public meetings as well as legislative hearings can be held by the planning board in the course of preparing the development regulation. Adds clarification that the review and comment required cannot be assigned to the governing board and must be performed by a separate board.
Concerning the required governing board statement in GS 160D-6-5, lists what can be included in the statement analyzing the reasonableness of the proposed rezoning, which must be approved by the governing board when adopting or rejecting any petition for a zoning map amendment. Clarifies that the statement of reasonableness and the plan consistency statement required by GS 160D-6-4 may be approved as a single statement.
Article 7, Zoning Regulation
Makes conforming changes to the Article's language concerning zoning regulation.
Clarifies in GS 160D-7-2 that the authorization for a local government to regulate development over estuarine waters and over lands covered by navigable waters owned by the State includes floating homes. Expressly authorizes a zoning regulation, where appropriate, to include requirements that performance guarantees be provided to the same extent and with the same limitations as provided in GS 160D-8-4. Makes organizational and technical changes.
Concerning the provisions pertaining to zoning districts, makes organizational, technical and clarifying changes to the types of zoning districts in GS 160D-7-3. Now provides that zoning districts can include but are not limited to: (1) conventional districts, in which a variety of uses are allowed as permitted uses or uses by right and that may also include uses permitted only with a special use permit; (2) conditional districts, in which site plans or individualized development conditions are imposed; (3) form‑based districts, or development form controls, that address the physical form, mass, and density of structures, public spaces, and streetscapes; (4) overlay districts, in which different requirements are imposed on certain properties within one or more underlying conventional, conditional, or form‑based districts; and (5) districts allowed by charter.
Concerning conditional districts, allows the zoning regulation to provide that defined minor modifications in conditional district standards that do not involve a change in uses permitted or the density of overall development permitted to be reviewed and approved administratively, while any other modifications of the conditions and standards in a conditional district are required to follow the same process for approval as are applicable to zoning map amendments. Establishes that if multiple parcels of land are subject to a conditional zoning, the owners of individual parcels can apply for modification of the conditions so long as the modification would not result in other properties failing to meet the terms of the conditions. Further provides that any modifications approved are only applicable to those properties whose owners petition for the modification.
Clarifies that a zoning regulation or unified development ordinance can also include development standards that apply uniformly jurisdiction-wide rather than being applicable only in particular zoning districts. Makes other organizational and technical changes.
Makes technical and clarifying changes to the incentives provisions in GS 160D-7-4.
Makes organizational and technical changes to the provisions concerning quasi-judicial zoning decisions in GS 160D-7-5. Establishes that the procedures of GS 160D-4-5 and 4-6 are applicable to appeals from administrative decisions regarding administration and enforcement of the zoning regulation or unified development ordinance, and appeals arising out of any ordinance that regulates land use or development, to be heard by the board of adjustment. Makes conforming changes.
Concerning special use permits, allows a regulation to provide that defined minor modifications to special use permits that do not involve a change in uses permitted or the density of overall development can be reviewed and approved administratively, but any other modification or revocation of a special use permit must follow the same process for approval as is applicable to the approval of a special use permit. Establishes that if multiple parcels of land are subject to a special use permit, the owners of individual parcels may apply for permit modification so long as the modification would not result in other properties failing to meet the terms of the special use permit or regulations. Provides that any modifications approved are only applicable to those properties whose owners apply for the modification. Allows the regulation to require that special use permits be recorded with the Register of Deeds.
Concerning authorized variances by the board of adjustment, permits a variance to be granted when necessary and appropriate to make a reasonable accommodation under the Federal Fair Housing Act for a person with a disability.
Makes organizational changes.
Article 8, Subdivision Regulation
The statutes currently define the term subdivision with regard to division of tracts or parcels of land. Amends GS 160D-8-2 to clarify that subdivision regulations, as authorized in GS 160D-8-1, apply to all such divisions. Makes conforming changes.
Further requires in GS 160D-8-3 that subdivision regulations must contain standards to be followed in granting or denying subdivision plats prior to registration. Requires a subdivision regulation to allow listed agencies to make recommendations concerning an individual plat before it is approved (currently required of cities in GS 153A-332, but not of counties in GS 160A-373). Provides for the assignment of the final decision on a subdivision plat, depending on whether the decision is administrative or quasi-judicial. Makes changes to simplify language.
Consolidates existing provisions regarding transportation and utilities in GS 160D-8-4. Clarifies that subdivision regulations are not required to provide for fees in lieu of dedication of land or construction of facilities, but that if such provisions are allowed by the ordinance and are elected for use in a particular plat review, they are binding on the local government and the owner. Provides that the funds are for the city, and not the county, as counties have no authority for a county streets or roads. Deletes the provision requiring a local government to provide a range of options for performance guarantees, and provides that the type of performance guarantee is at the election of the person required to give the performance guarantee, rather than the developer, to reflect amendments made by SL 2015-187. Deletes redundant language. Makes technical and conforming changes.
GS 160D-8-5 further authorizes local governments to give notice to interested parties by other reasonable means, in addition to email, as currently authorized. Deletes the provision authorizing notice by facsimile. Makes technical and conforming changes.
Provides in GS 160D-8-8 for appeals of subdivision decisions in accordance with GS 160D-14-3.
Article 9, Regulation of Particular Uses and Areas
Part 1, Particular Land Uses
Consolidates provisions regarding regulation of particular land uses into a single Part for ease of user access. Recognizes that regulation of some specific uses or areas can be accomplished as a general police power regulation as well as a development regulation under this Article (which is commonly done in counties without zoning and in smaller cities). Allows use of either source of authority, but provides that the local regulation must be consistent with these provisions and limitations. Preserves the option of cities and counties to adopt regulations under either this Chapter (development regulations), Article 8 of Chapter 160A, or Article 6 of Chapter 153A (general police power), but specifies that the substantive limitations imposed by this Article apply regardless of the source of authority being used by the local government.
GS 160D-9-3 clarifies that county zoning exemptions for bona fide farming apply to city zoning within a city’s extraterritorial jurisdiction, providing the same zoning and other development regulation treatment for farm land in a municipal extraterritorial jurisdiction as would be provided if the property were in county jurisdiction. Replaces a reference to compliance with a specific federal regulation on floodplain regulation with compliance with state or federal law generally. Amends a provision to authorize municipalities to exempt accessory buildings of “bona fide farms” from the building code as they would have been exempted under county zoning (currently, only authorizes listed municipalities in Wake County). Simplifies language. Deletes redundant language. Makes technical and conforming changes.
Authorizes local governments to enact and enforce airport zoning regulations under this Chapter or under Chapter 63, Article 4, or GS 63A-18, as specified. Cross-references the 1941 Model Airport Zoning Act, and preserves the current jurisdictional relationship between local zoning and zoning by the Global Transpark Authority.
Provides for the zoning of family care homes as residential property. Provisions are identical to those in GS 168-20 through GS 168-22. Does not repeal identical statutes in GS Chapter 168.
Provides in GS 160D-9-10 that modular homes must comply with standards in GS 143-139.1.
GS 160D-9-11 provides that local governments may require the removal of a nonconforming off-premises outdoor advertising sign (as currently provided in the police power Articles of GS Chapters 153A and 160A), cross-referencing the Outdoor Advertising Control Act. Provides that this statute does not apply to any ordinance in effect on July 1, 2004 (was, the effective date of the statute, which was July 17, 2004). Makes conforming changes.
Cross-references GS 160A-400.9(f) and new GS 160D-9-47, concerning public buildings in historic districts in GS 160D-9-12, to indicate exceptions in those statutes to the prohibition on including land owned by the State within overlay districts or conditional zoning districts without Council of State approval. Authorizes the Council of State to delegate its decision regarding overlay and conditional zoning districts. Makes conforming changes.
GS 160D-9-15 authorizes local governments to establish street setback and driveway connection regulations under GS 160A-306, GS 160A-307, or this Chapter. Provides that regulations under this chapter are also subject to GS 160A-306 and GS 160A-307.
Part 2, Environmental Regulation
Authorizes local governments to exercise powers under GS Chapter 160A, Article 8, and GS Chapter 153A, Article 6 to adopt and enforce regulations under this Part to comply with State and federal law, and consistent with the interpretations and directions of State and federal agencies. Provides that local environmental regulations under this Part are not subject to GS 160D-7-5’s variance provisions unless specifically authorized by the local ordinance.
Amends GS 160D-9-22 to further provide that regulations on erosion and sedimentation control are subject to this Chapter, to the extent not inconsistent with GS 113A, Article 4. Makes conforming changes.
GS 160A-9-23 provides that floodplain regulations are subject to this Chapter, to the extent not inconsistent with GS 143, Article 21, Part 6. Makes conforming changes.
GS 160D-9-24 provides that mountain ridge protections are subject to this Chapter, to the extent not inconsistent with GS Chapter 113A, Article 14, unless the local government has removed itself from that Article’s coverage.
Part 3, Wireless Telecommunication Facilities
Makes clarifying and conforming changes.
Part 4, Historic Preservation
Deletes the provision currently at GS 160A-400.2, authorizing counties and cities to engage in historical preservation, which is unnecessary given the merger of city and county provisions.
Directs local governments in GS 160D-9-41 to establish or designate a historic preservation commission before designating landmarks or historic districts, in accordance with new GS 160D-3-3, where the requirements for such a commission, currently at GS 160A-400.7, are recodified.
GS 160D-9-46 makes the notice requirements for a hearing on the proposed landmark consistent with GS 160D-6-1, concerning procedure for adopting other zoning regulations. Deletes the provision clarifying that hearings on the proposed landmark are subject to open meetings laws. Requires owners and occupants of designated landmarks to be given notice within a reasonable time of the adoption of the regulation (currently, required insofar as reasonable diligence permits). Makes conforming changes.
GS 160D-9-47 retains requirement that certificates of appropriateness be issued prior to building permits, but deletes the provision requiring issuance of certificates of appropriateness prior to other permits. Clarifies that required standards (was, guidelines) adopted by the commission for new construction and so forth at the landmark or historic district are binding and not advisory. Applies the standard quasi-judicial decision process for all quasi-judicial decisions under this article, replacing the similar-but-different procedure for the issuance of certificates of appropriateness. Deletes the provision requiring compliance with open meetings laws. Provides procedure for appeal of administrative decisions, including an option for local regulation to allow certiorari appeal to the board of adjustment, and an appeal to superior court. Provides that appeals to superior court must be taken within the times prescribed in GS 160D-14-4, and deletes the provision making appeal to superior court a certiorari appeal. Deletes redundant language, and makes technical and conforming changes.
GS 160D-9-50, concerning demolition by neglect to contributing structures outside local historic districts, deletes the provision applying this statute only to local governments with a population of more than 100,000. Makes conforming changes.
Part 5, Community Appearance Commissions
Makes clarifying and conforming changes.
Article 10, Development Agreements
GS 160D-10-1 authorizes local governments to enter into development agreements with developers. Amends legislative findings to remove size and duration limits regarding development projects. Provides that local governments, and not agencies, may enter into development agreements. Makes simplifying and clarifying changes. Incorporates provisions from GS 160A-400.32 and GS 153A-349.1 providing that development agreements do not exempt property owners or developers from the State building code or State or local housing codes. Incorporates definitions currently in GS 160A-400.21 and GS 153A-349.2.
GS 160D-10-3 concerns approval of the governing board for development agreements. Provides that decisions on proposed development agreements are legislative decisions, and requires adherence to the notice, hearing, and planning board referral provisions in Article 6. Authorizes the concurrent processing and considering of rezoning and development agreements, and the coordinated exercise of related development approvals for a project subject to a development agreement. Provides for treatment of a development agreement in the event of a developer’s bankruptcy.
GS 160D-10-5 requires public hearings on development agreements. Specifies that the hearing is a legislative hearing, and applies the notice requirements of GS 160D-6-2. Relocates the provision on the delivery date for public facilities to GS 160D-10-6.
GS 160D-10-6 concerns the content of a development agreement. Requires the agreement to include any provisions to protect environmentally sensitive property that exceed existing laws. Deletes the provision requiring the agreement to list all required state and local permits. Deletes superfluous language. Provides for the requirement of a development schedule, if required by local ordinance or the agreement itself. Authorizes utility authorities to be made a party to the development agreement. Provides that the applicant and local government can through negotiation agree to the provision and cost-sharing for public facilities and other amenities related to the development, so long as impact mitigation measures beyond those required by the local government are expressly enumerated, and does not include a prohibited tax or impact fee. Makes conforming changes.
GS 160D-10-8 concerns breach of the development agreement. Makes periodic review by the zoning administrator optional, instead of mandatory. Authorizes ordinances or development agreements to specify additional penalties for breach, in lieu of termination. Authorizes enforcement by any party to the agreement.
GS 160D-10-9 concerns amendment or termination of development agreements. Provides that amendment or termination is subject to GS 160D-10.6(e), and makes technical changes.
Recodifies GS 160A-400.29 and GS 153A-349.10, requiring a developer to record a development agreement with the register of deeds, as GS 160D-10-11. Prohibits development approval issuance until the agreement is recorded. Simplifies language.
Article 11, Building Code Enforcement
Amends GS 160D-11-2, building code administration, by deleting the provision that allowed an inspection department to be headed by a superintendent or director of inspections and outdated language.
Amends GS 160D-11-3, qualifications of inspectors, by no longer referring to a probationary certificate as being valid for only one year. Deletes obsolete provisions concerning electrical inspector qualifications.
Amends GS 160D-11-6, conflicts of interest, to specify that staff members, agents, or contractors responsible for building inspections must comply with GS 160D-1-9(c) (concerning conflicts of interest for administrative staff).
Makes clarifying changes to GS 160D-11-8, building permits.
Amends GS 160D-1-14, certificates of compliance, by adding that local governments may require the applicant for a temporary certificate of occupancy to post suitable security to ensure code compliance.
Amends GS 160D-11-15, periodic inspections, to require that dwelling inspections follow the provisions of GS 160D-12-7.
Amends GS 160D-11-117 to expand the scope of specified provisions which were previously applicable only to cities. Now allows an inspector to declare a nonresidential building or structure within a community development target area to be unsafe if: (1) it appears to the inspector to be vacant or abandoned and (2) it appears to the inspector to be in such dilapidated condition as to cause or contribute to blight, disease, vagrancy, or a fire or safety hazard; to be a danger to children; or to tend to attract persons intent on criminal activities or other activities that would constitute a public nuisance. Requires an inspection, upon declaring a nonresidential building or structure to be unsafe, to affix a notice of the unsafe character of the structure to a conspicuous place on the exterior wall of the building. Defines the term community development target area for the purposes of the statute to mean an area that has characteristics of an urban progress zone under GS 143B-437.09, a nonresidential redevelopment area under GS 160A-503(10), or an area with similar characteristics designated by the governing board as being in special need of revitalization for the benefit and welfare of its citizens. Allows a local government to expand these provisions so that they apply to residential buildings by adopting an ordinance. Requires the local government to hold a legislative hearing, with published notice, before adopting such an ordinance.
Amends GS 160D-11-23, Enforcement, by expanding the scope of the following provisions so that they are now applicable to both counties and cities (was, cities only). Allows a local government, in the case of a building or structure declared unsafe to, in lieu of taking action under subsection (a) of the statute, cause the building or structure to be removed or demolished. Specifies that the amounts incurred by the local government in connection with the removal or demolition shall be a lien against the real property upon which the cost was incurred. Requires the local government to sell the usable building material and any personal property, fixtures, or appurtenances found in or attached to the building if the building is demolished; proceeds are to be credited against the cost of the removal or demolition, with any remaining balance deposited with the clerk of superior court of the county where the property is located to be disbursed to the person found to be entitled thereto by final order or decree of the court. Specifies that nothing in the statute impairs or limits the power of a local government to define and declare nuisances and to cause their removal or abatement by summary proceedings or otherwise.
Amends GS 160D-11-27, regulation authorized as to repair, closing, and demolition of nonresidential buildings or structures; order of public officer, to require that a regulation relating to nonresidential buildings or structures that fail to meet minimum standards of maintenance, sanitation, and safety established by the governing board must be applicable within the local government’s entire planning and development regulation jurisdiction or limited to one or more designated zoning districts or municipal service districts.
Requires complaints or orders issued by a public officer pursuant to an ordinance adopted under this statute to be served upon persons either personally or by certified mail (was, registered or certified mail) so long as the means used are reasonably designed to achieve actual notice.
Article 12, Minimum Housing Codes
Amends GS 160D-12-3, which, upon adoption of an ordinance finding that dwelling conditions of the character described in GS 160D-12-1 exist, allows a governing board to adopt and enforce ordinances relating to dwellings within the planning and development regulation jurisdiction that are unfit for human habitation. The statute requires that the ordinances, among other provisions, include that if the dwelling has been vacated and closed for a period of one year pursuant to an ordinance adopted under the statute or after a public officer issues an order or proceedings have commenced under the substandard housing regulations regarding a dwelling to be repaired or vacated and closed, then the governing board may find that the owner has abandoned the intent and purpose to repair, alter, or improve the dwelling in order to render it fit for human habitation and that the continuation of the dwelling in its vacated and closed status would be inimical to the health, safety, and welfare of the local government. Allows the governing board to, after the one-year period, enact an ordinance and serve such ordinance on the owner providing that: (1) if it is determined that the repair of the dwelling to render it fit for human habitation can be made at a cost not exceeding 50% of the then current value of the dwelling, the ordinance must require that the owner either repair or demolish and remove the dwelling within 90 days or (2) if it is determined that the repair of the dwelling to render it fit for human habitation cannot be made at a cost not exceeding 50% of the then current value of the dwelling, the ordinance must require the owner to demolish and remove the dwelling within 90 days. These provisions replace previous provisions that varied depending on size or location of the local government. Makes additional clarifying changes throughout the statute.
Amends GS 160D-12-7 by specifying that no local government may adopt or enforce any ordinance that would require any owner or manager of rental property to obtain any permit or permission under Article 11 (Building Code Enforcement) or Article 12 (Minimum Housing Codes) of this Chapter from the local government to lease or rent residential real property or to register rental property with the local government, except for those individual properties that have more than four verified violations in a rolling 12-month period or two or more verified violations in a rolling 30-day period, or upon the property being identified within the top 10% of properties with crime or disorder problems as set forth in a local ordinance.
Amends GS 160D-12-8 (Remedies) by specifying that an ordinance adopted pursuant to Article 12 (Minimum Housing Codes) may provide for a housing appeals board as provided by GS 160D-3-6. Makes additional clarifying and conforming changes.
Article 13, Additional Authority
Makes clarifying and conforming changes throughout the Article.
Article 14, Judicial Review
Enacts new GS 160D-14-1, allowing challenges of legislative decisions of governing boards, including the validity of development regulations adopted pursuant to this Chapter, and actions authorized by GS 160D-4-5(b) to be brought pursuant to Article 26 of Chapter 1 of the General Statutes. Requires the governmental unit making the challenged legislative decision to be named a party to the action.
Also allows upon the filing of a petition for writ of certiorari a party to request a stay of the execution or enforcement of the decision of the quasi-judicial board pending superior court review. Allows the court to grant a stay in its discretion, and on such conditions which properly provide for the security of the adverse party. A stay granted in favor of a city or county does not require a bond or other security.
Provides that if a development approval is appealed, the applicant has the right to commence work while the appeal is pending. However, if the development approval is reversed by a final decision of any court of competent jurisdiction, the applicant must not be deemed to have gained any vested rights on the basis of actions taken prior to or during the pendency of the appeal and must proceed as if no development approval had been granted. If work is commenced prior to or during the pendency of an appeal, the time periods for the duration of the development approval are not tolled during the pendency of the appeal.
Allows a declaratory judgment brought under GS 160D-14-1 or other civil action relating to the decision at issue to be joined with the petition for writ of certiorari and decided in the same proceeding.
Amends GS 160D-14-5 to specify that a cause of action as to the validity of any regulation adopting or amending a zoning map adopted under this Chapter or other applicable law or a development agreement adopted under Article 10 of this Chapter accrues upon adoption of such ordinance and must be brought within sixty days (was, two months) as provided in GS 1‑54.1.
Specifies in GS 160D-14-4 that except as expressly stated, this Article does not limit the availability of civil actions otherwise authorized by law or alter the times in which they may be brought.
Makes additional clarifying changes.
Amends GS 1-54 to make conforming changes and to delete surplus language.
Amends GS 1-54.1 by deleting surplus language, making conforming changes, and clarifying that, as used in the statute, two months is calculated as sixty days.
Amends GS 63-31(a), GS 63-32, and GS 62-33 to make conforming and clarifying changes.
Amends GS 63-34 by deleting the content of the statute and providing instead that GS 160D-14-1 is applicable to judicial review of administrative and quasi-judicial decisions made under the Article.
Deletes the provisions of GS 63-35 and instead provides that GS 160D-4-4 is applicable to ordinances adopted under the Article.
Amends GS 143-215.57(b) to require that the jurisdiction for those ordinances be as specified in Article 2 of GS Chapter 160D and makes Article 4 of the Chapter applicable to the administration, enforcement, and appeal of those ordinances. Deletes (c) concerning the adoption of rules on the form, time, and manner of submission of applications for permits under Part 6, Floodway Regulation, of Article 21, Water and Air Resources.
Amends GS 143-215.58, GS 130A-55, GS 143-214.5(d), GS 113A-208, GS 113A-211, and GS 160A-75 by making conforming changes.
Makes conforming repeals of the following statutes, which have been incorporated into new GS Chapter 160D: GS 153A-102.1, GS 160A-4.1, GS 160A-181.1, GS 153A-143, GS 160A-199, GS 153A-144, GS 160A-201, GS 153A-452, and GS 153A-455.
Relocates language from GS 153A-325 into new GS 153A-458, submission of statement concerning improvements. Relocates language from GS 153A-349.60 into new GS 153A-459, authorization to provide grants.
Includes a severability clause.
Provides that any otherwise valid permit or development approval made prior to January 1, 2019, shall not be invalid based on inconsistency with the provisions of this act. The validity of any plan adopted prior to January 1, 2019, is not affected by a failure to comply the procedural requirements of GS 160D‑5‑1(b).
Deems any special use district or conditional use district zoning district that is valid and in effect as of January 1, 2019, as a conditional zoning district consistent with the terms of this act, and the special or conditional use permits issued concurrently with establishment of those districts shall be valid as specified in Section 8.1 of this act. Any valid "conditional use permit" issued prior to January 1, 2019, is be deemed a "special use permit" consistent with the provisions of this act.
Deems any special use district or conditional use district zoning district that is valid and in effect as of January 1, 2019, as a conditional zoning district consistent with the terms of this act, and the special or conditional use permits issued concurrently with establishment of those districts shall be valid as specified in Section 8.1 of this act. Any valid "conditional use permit" issued prior to January 1, 2019, is deemed a "special use permit" consistent with the provisions of this act.
Effective January 1, 2019, and applies to local government development regulation decisions made on or after that date. Specifies that this act clarifies and restates the intent of existing law and applies to ordinances adopted before, on, and after the effective date.