Bill Summary for S 575 (2017-2018)

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Summary date: 

Mar 30 2017

Bill Information:

View NCGA Bill Details2017-2018 Session
Senate Bill 575 (Public) Filed Thursday, March 30, 2017
Intro. by Gunn, Wade, Krawiec.

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Bill summary

Identical to H 507, filed 3/28/17.

Amends GS 143-755 (concerning choice between versions of changing state agency rules and ordinances for permit applicants) to clarify that the rule or ordinance changes discussed in that statute include amendments to zoning maps or text of applicable land development regulations, or changes to state agency regulations affecting the development of property. Provides that the applicant does not have to wait for a pending rule or ordinance to be adopted in order to choose which version of the rule or ordinance applies to the permit. Clarifies that definitions in GS 160A-400.21 (concerning development agreements with local governments) apply to this statute for development permits issued by local governments. Provides for persons aggrieved by the failure of a State agency or local government to comply with this statute or GS 160A-360.1 or GS 153A-320.1 to apply with a court for an order compelling compliance. Entitles an applicant to demonstrated damages.

Amends GS 160A-360.1 (concerning choice between versions of changing city rules and ordinances for permit applicants) and GS 153A-320.1 (concerning the same subject with counties) to apply GS 143-755 specifically to development permit applications, and to clarify that amendments to zoning maps and applicable land development regulations are included in the cities' rule and ordinance changes discussed in that statute.

Amends GS 160A-400.21 to include site plans in the definition of development permit.

Amends GS 160A-385 to clarify that amendments, modifications, or repeals of zoning maps or texts are included in the amendments modifications or repeals that may be the subject of citizen comments. Directs the clerk to provide the names and addresses of individuals providing written comments to the city council for any changes that are the subject of a quasi-judicial proceeding (currently only required for specified quasi-judicial proceedings).

Further amends GS 160A-385 (cities), and amends GS 153A-344 (counties), to provide that amendments to land development regulations are not applicable or enforceable without the written consent of the owner with regard to uses of buildings or land, or subdivisions of land, for which a development permit has been issued under this Chapter that authorizes the use or subdivision of land, or for which a building permit has been issued under GS Chapters 160A or 153A, or if a vested right has been established pursuant to GS 160A-385, GS Chapter 160A, Article 19, Part 3D, GS 153A-344.1, or GS Chapter 153A, Article 18, Part 3A. Provides for the expiration of local development permits in one year unless work has substantially commenced. Provides for vesting of rights under multiple statutes, as well as common law. Provides that vested rights preclude actions by a city or county that would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property as set forth in the application, except where a subsequent change in the law has a fundamental and retroactive effect on the development or use. Provides that amendments in land development regulations (currently, specified land development regulations) are not applicable or enforceable without the written consent of the owner of a multi-phased development, and provides that multi-phased developments are vested for the entire development with the land development regulations in place when the applicable application for a development permit is submitted, so long as the permit remains valid and unexpired. Transfers the definitions of multi-phase development from GS 160A-385.1 and GS 153A-344.1 to these statutes, and amends the definition to include developments containing 25 acres or more (currently, 100 acres or more), in addition to the other requirements.

Amends GS 160A-384 (cities) and GS 153A-343 (counties) to provide that zoning map amendments may not be initiated or enforced without the written consent of all property owners whose property is the subject of the zoning map amendment, unless the amendment was initiated by the city or county respectively. Deletes the provision authorizing notice in accordance with GS 1A-1, Rule 4(j) and (j1).

Enacts new GS 160A-393.1 (Civil action for declaratory relief, injunctive relief, or other remedies). Provides for landowners, permit applicants, or tenants aggrieved by final and binding decisions of administrative officials involving application or enforcement of an ordinance regulating land use or development to file an action in superior court for relief, where the aggrieved party makes any of a list of specified claims or defenses, so long as the party has not already presented the claims or defenses to the board of adjustment. Provides for the burden of proof, statute of limitations, and required notice to the owners of land parcels abutting the parcel that is the subject of the complaint.

Amends GS 160A-364.1 to authorize parties in any action involving the enforcement of a zoning or unified development ordinance to raise a claim or defense of the invalidity of the ordinance in the action (currently only authorizes a defense), and to make conforming changes.

Amends GS 160A-393, regarding writ of certiorari appeals of decision-making board quasi-judicial permit decisions to superior court, to direct the court to allow the record to be supplemented (currently, at the court's discretion) when the petition raises any of the currently listed issues (currently, when the record is inadequate to determine the issues). Applies the North Carolina Rules of Civil Procedure to the supplementation of the record. Revises the scope of review of the decision-making board, and the evidentiary standards. Authorizes the petitioner to assert that the ordinance violates either the federal or state Constitution, that the ordinance is in excess of authority, or that it violates the vested rights of the petitioner, but requires the petitioner to have made the claim known to the decision-making board at the hearing in order to raise it to the court. Directs the Court to remand, upon determination that a permit was wrongfully denied because the denial was not based on substantial competent evidence, 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. Directs the court to reverse a zoning board's decision, upon determination that the decision upholding a zoning enforcement action was not supported by substantial competent evidence or was otherwise based on error of law. Makes technical and conforming changes.

Enacts new GS 160A-393.2 (No estoppel effect when challenging unlawful conditions). Provides that a city or county may not assert estoppel, waiver, release, acceptance, or other similar grounds, before a board of adjustment or in any civil action, as a result of actions by the landowner or permit applicant to proceed with development authorized by a rezoning or a development permit while the landowner or permit applicant challenges conditions imposed on the development.

Amends GS 6-21.7 (Attorneys' fees; cities or counties acting outside the scope of their authority) to provide that the attorneys' fees in that statute shall be (currently, may be) awarded when the court finds that the city or county violated a statute or case law setting forth unambiguous limits on its authority. Directs the court to award reasonable attorneys' fees and costs to a party that successfully challenged a local government's failure to comply with GS 160A-360.1, GS 153A-320.1, or GS 143-755. Authorizes the court to award reasonable attorney's fees in all other matters, at its discretion.

Amends GS 160A-372 (cities) and GS 153A-331 (counties) to authorize subdivision control ordinances to provide for performance guarantees either at the time the plat is recorded, or at a time subsequent to recording to assure successful completion of required improvements. If the city or county does not adopt an ordinance setting forth performance guarantees, the city or county is not authorized to require the successful completion of required improvements prior to a plat being recorded. Makes the term of the performance guarantee, and any extension, at the election of the developer. Authorizes the developer to reduce the amount of the performance guarantee to reflect only the remaining incomplete items.

Further amends GS 160A-372 to authorize developers to conclusively determine 125% of the reasonably estimated the cost of completion by a report provided under seal by a licensed architect or engineer, including inflation, administration, and enforcement. Authorizes the developer to submit a single form of performance guarantee for all development matters related to the same project requiring performance guarantees. Provides that no person has any rights to a performance guarantee except the local government, developer, and person or entity issuing or providing the performance guarantee.

Amends GS 160A-381 (cities) and GS 153A-340 (counties) to clarify that the current prohibition on conditions and safeguards for special use permits or conditional use permits in excess of the city or county's authority includes several listed things, including taxes and impact fees. Provides that development permits authorized under GS 160A-381(c) or GS 153A-340 (c1) may not be denied on the basis that existing public facilities are inadequate to serve the property described in the permit application.

Amends GS 153A-352 (counties) and GS 160A-412 (cities) to further prohibit counties and cities from adopting or enforcing local ordinances, resolutions, or policies requiring inspections of buildings constructed in compliance with the North Carolina Residential Code for One- and Two-Family Dwellings in addition to those required the North Carolina Building Code without approval from the Building Code Council.

Amends GS 160A-307 to provide that a city may not require an applicant to acquire right-of-way from property not owned by the applicant. Deletes the provision providing that between city and Department of Transportation regulations regarding street or alleys, the more stringent requirement applies.

The amended regulations regarding multi-phased developments are effective with respect to phased development approvals that are valid and unexpired on the effective date of this act. The remainder of the act is effective when it becomes law, and applies to permits previously issued that remain valid and unexpired on the date this act becomes law, and to permit actions filed, actions filed in court, and claims and defenses asserted on or after that date.