Due to COVID-19 and related shutdowns, land development and local government operations have slowed dramatically. Recognizing that these slowdowns will impact the ability for projects to meet deadlines, the General Assembly passed legislation to extend the effective date of the new Chapter 160D to August 1, 2021, authorize local governments to adopt maps to be incorporated into local development regulations by reference, and extend certain development approvals by five months. This blog outlines the details of those provisions.
Chapter 160D Deadline Extension
Chapter 160D is the comprehensive rewrite of the planning and zoning statutes in North Carolina adopted into law as part of Session Law 2019-111. You can find more information on the School of Governments’ Chapter 160D website.
At the time of adoption in July 2019, Chapter 160D was set to become effective January 1, 2021. That long lead time allowed for additional legislation from 2019 to be merged into the new chapter and allowed local governments to update ordinances to comply. COVID-19 and related shutdowns have delayed efforts at the state and local level. Recognizing the need for more time, Session Law 2020-3 (Senate Bill 704), Section 4.33, extends the effective date of Chapter 160D until August 1, 2021.
Note that the General Statutes Commission has been working on merging other legislation into Chapter 160D and addressing technical corrections and minor adjustments. Among the adjustments and corrections, the General Statutes Commission has proposed for Chapter 160D to be effective immediately (all 160D authorities would be available upon adoption of the technical corrections bill), but local governments would not need to be in compliance until July 1, 2021. If and when the General Assembly takes up the proposed bill of the General Statutes Commission, those new provisions could replace the August 1, 2021 effective date. For now, though, August 1 is the date.
Floodplain Maps Incorporated by Reference
One popular new authority in Chapter 160D is the ability for local governments to incorporate maps by reference, rather than re-adopting promulgated maps each time they are handed down from a state or federal agency. With the delay of the effective date of Chapter 160D, that new authority for incorporating maps by reference was also delayed. Session Law 2020-3 (Senate Bill 704), Section 4.34, addresses that concern and grants the authority immediately.
Under the new law a local government may incorporate by reference flood insurance rate maps, watershed boundary maps, or other maps officially adopted or promulgated by State and federal agencies. The ordinance or zoning map may reference a specific map or the most recent officially adopted version of the map. The ordinance may provide that zoning boundaries are automatically amended to remain consistent with the incorporated map. The local government must maintain for public inspection the currently effective version of the map incorporated by reference.
This section will expire once Chapter 160D is effective.
Session Law 2020-3 (Senate Bill 704), Section 4.40, grants permit extension for certain local government approvals related to development, outlining the term of extension, the types of approvals extended, obligations of the approval holder, and exclusions from extension.
Term. For qualifying development approvals, the term of approval and any vested right is extended for five months. So, for example, typically a building permit issued on February 1, 2020 would expire six months later on August 1, 2020. Under the new permit extension law, since the building permit was valid between March 10th and April 28th, the approval is extended five months to January 1, 2021.
Note that Section 4.40(g) states that the approval extension law expires September 28, 2020. It is not clear what effect that has on an approval that, under the extension law, is extended beyond September 28. Arguably the expiration of the law would end any extension, but that read of the law will shorten the extension of many approvals.
Qualifying Development Approvals. In order to qualify, the development approval must have been valid at some point between March 10, 2020, and April 28, 2020. “Development approval” is defined broadly in the legislation to include all of the following: erosion and sedimentation control plans; building permits; sketch plans, preliminary plats, or final plats; site-specific development plans or phased development plans; development permits; development agreements; and certificates of appropriateness.
Obligations of Approval Holder. Even with the permit extension, the developer must still comply with all applicable laws, regulations, and policies in effect at the time of the development approval. The developer must maintain all performance guarantees for the duration of the extension or until affirmatively released from that obligation by the governing body. The developer must complete any infrastructure necessary to obtain a certificate of occupancy or other final development approval.
Termination and Appeal. If an approval holder fails to comply with the terms of extension, then the government entity may terminate the extension. The government entity shall notify the approval holder of termination by written notice of the termination (including the reason for termination) to the last known address of the original approval holder. Such termination may be appealed to the board of adjustment.
Exclusions. The permit extension law does not:
- Extend a permit from the federal government nor a permit for which the duration is set by federal law
- Shorten any development approvals
- Prevent extensions of development approvals
- Affect Department of Environmental Quality administrative consent orders between May 4 and September 28, 2020
- Prevent agencies from revoking or modifying a development approval
- Modify requirements necessary to retain federal delegation
- Modify obligations or rights under contract, including bond obligations or rights
- Authorize charging water or wastewater tap fees that have previously been paid in full.
Deadline extensions will be something to monitor going forward. In the near term, they will require careful calculations and tracking by developers and local permitting offices. Depending on how things play out with COVID-19 and shutdowns, we may see additional extensions as we did during the recession in 2009 and 2010.