Contents of the Hearing Notice for a Zoning Amendment
State law has always required a public hearing prior to the adoption, amendment, or repeal of a development regulation.
The statutes are clear about how the hearing notice is to be provided and when it must be made. Notice of the hearing must be published twice in a local newspaper, with the first notice at least 10 but not more than 25 days prior to the day of the hearing. G.S. 160D-601(a). If the amendment proposes to change the zoning of property, notice of the hearing must also be mailed to the property owner and owners of adjacent property and notice of the hearing must be posted on the site. G.S. 160D-602. If a military base is within five miles of an area being rezoned, notice must also be provided to the base.
But what about the contents of the hearing notice? What has to be in it? How much information is enough? What topics must be addressed and what is optional? Is there such a thing as too much information in the notice?
Nature and Character of the Action Proposed
The statutes provide the requirement to provide a notice on the public hearing of proposed changes to a zoning regulation and provide details about the timing of the notice. However, the statutes are silent about the content of the notices.
Court cases, however, have filled in the details on what needs to be in the notice. The case law on this point is fairly straightforward. As the court of appeals succinctly noted in 1977, the notice must be sufficient to “fairly and sufficiently apprise those whose rights may be affected of the nature and character of the action proposed.” Sellers v. City of Asheville, 33 N.C. App. 544 (1977).
The most sensitive portion of hearing notices is the description of the subject of the hearing.
Consider for example a proposed text amendment that sets detailed standards for location of accessory buildings in residential zoning districts, with provisions on setbacks from property lines, height and square-footage limits, restricting their location to rear yards, and so forth.
A notice that simply says the purpose of the hearing is to receive comments on “A proposed addition to Section 5.4.12 of the zoning ordinance” is clearly inadequate.
A lengthy notice that includes a detailed listing of all the specific changes proposed is permissible, but not required. In fact, too much information can be as inappropriate as too little information if it just obfuscates the subject to be addressed. Since the purpose of the notice is to let someone sitting at home know whether this is something they should look into, legalese and planning jargon should be completely avoided.
In this example, a sentence that solicits comments on “proposed new standards for accessory buildings in residential areas” would suffice. It would be helpful to add a parenthetical defining an accessory building (e.g., “such as garages and sheds”) to clearly convey in lay language what is to be considered. If there are any particularly important new standards being proposed, those could also be mentioned.
Property Affected
For a rezoning (a zoning map amendment) it is important to also clearly identify the property involved.
Again, it is important to keep in mind the audience of lay persons trying to figure out if this is something to check out. Therefore technical provisions such as a legal description of the tract or just a property identification number should be avoided.
The best identifier is a street address, particularly for property within a city or developed area. A general description such as “a 100 acre parcel at the southwest corner of Jones Sausage Rd. and Minnie Smith Rd.” can also be used, particularly for larger tracts or areas where a street address may not be readily apparent to a reader..
Hearing Logistics
Several other items should always be included in the notice.
The date, time, and location of the hearing must be included. A contact point for more information and an indication where a complete copy of the proposal can be viewed prior to the hearing should also always be included. If there is more information available online, a link to that should be provided in the notice. If there are any local rules on comments at the hearing (such as time limits or how to sign up to speak), it is useful to note them or point someone to where they can get that information.
Action to be Taken
The notice should clearly indicate just what action is proposed to be taken after receiving public comments. Usually this would be potential adoption by the governing board, but sometimes the matter is referred to the planning board or a committee prior to final action.
If amendments will be considered in response to comments received, the courts indicate that saying so in the notice can reduce the need for an additional hearing if some amendments are in fact made. See this post for more on the need for a rehearing if amendments are made.
Substitute for Published Notice
One last thought on this issue is whether the time has come to dispense with the traditional newspaper notice. Many local governments find posting the hearing notice on the city or county web site (often with links to supplementary materials such as the application and staff report) and distribution on email lists are far more effective than a legal ad in the back of the paper.
Legislation has been proposed several times to authorize this instead of newspaper publication, as has been done by local bills for several jurisdictions. While the “digital divide” is still a real concern, proponents of the change noted those folks without internet access are also unlikely to be regularly reading the legal ads in the back of a newspaper. However, some readers do still regularly check the paper for these hearing notices and small town newspapers have noted the importance of the financial support provided to them by advertisements for public hearings. One rejoinder has been a suggestion to require use of display ads in the newspaper rather than legal ads.
In any event, this is certainly a question for further discussion – assuming we get the content of the notice right, how do we best assure those who need to see it really see it?
1
Coates’ Canons NC Local Government Law
Contents of the Hearing Notice for a Zoning Amendment
Published: 09/25/09
Last-Revised: July 21, 2022
Author Name: David Owens
State law has always required a public hearing prior to the adoption, amendment, or repeal of a development regulation.
The statutes are clear about how the hearing notice is to be provided and when it must be made. Notice of the hearing must be published twice in a local newspaper, with the first notice at least 10 but not more than 25 days prior to the day of the hearing. G.S. 160D-601(a). If the amendment proposes to change the zoning of property, notice of the hearing must also be mailed to the property owner and owners of adjacent property and notice of the hearing must be posted on the site. G.S. 160D-602. If a military base is within five miles of an area being rezoned, notice must also be provided to the base.
But what about the contents of the hearing notice? What has to be in it? How much information is enough? What topics must be addressed and what is optional? Is there such a thing as too much information in the notice?
Nature and Character of the Action Proposed
The statutes provide the requirement to provide a notice on the public hearing of proposed changes to a zoning regulation and provide details about the timing of the notice. However, the statutes are silent about the content of the notices.
Court cases, however, have filled in the details on what needs to be in the notice. The case law on this point is fairly straightforward. As the court of appeals succinctly noted in 1977, the notice must be sufficient to “fairly and sufficiently apprise those whose rights may be affected of the nature and character of the action proposed.” Sellers v. City of Asheville, 33 N.C. App. 544 (1977).
The most sensitive portion of hearing notices is the description of the subject of the hearing.
Consider for example a proposed text amendment that sets detailed standards for location of accessory buildings in residential zoning districts, with provisions on setbacks from property lines, height and square-footage limits, restricting their location to rear yards, and so forth.
A notice that simply says the purpose of the hearing is to receive comments on “A proposed addition to Section 5.4.12 of the zoning ordinance” is clearly inadequate.
A lengthy notice that includes a detailed listing of all the specific changes proposed is permissible, but not required. In fact, too much information can be as inappropriate as too little information if it just obfuscates the subject to be addressed. Since the purpose of the notice is to let someone sitting at home know whether this is something they should look into, legalese and planning jargon should be completely avoided.
In this example, a sentence that solicits comments on “proposed new standards for accessory buildings in residential areas” would suffice. It would be helpful to add a parenthetical defining an accessory building (e.g., “such as garages and sheds”) to clearly convey in lay language what is to be considered. If there are any particularly important new standards being proposed, those could also be mentioned.
Property Affected
For a rezoning (a zoning map amendment) it is important to also clearly identify the property involved.
Again, it is important to keep in mind the audience of lay persons trying to figure out if this is something to check out. Therefore technical provisions such as a legal description of the tract or just a property identification number should be avoided.
The best identifier is a street address, particularly for property within a city or developed area. A general description such as “a 100 acre parcel at the southwest corner of Jones Sausage Rd. and Minnie Smith Rd.” can also be used, particularly for larger tracts or areas where a street address may not be readily apparent to a reader..
Hearing Logistics
Several other items should always be included in the notice.
The date, time, and location of the hearing must be included. A contact point for more information and an indication where a complete copy of the proposal can be viewed prior to the hearing should also always be included. If there is more information available online, a link to that should be provided in the notice. If there are any local rules on comments at the hearing (such as time limits or how to sign up to speak), it is useful to note them or point someone to where they can get that information.
Action to be Taken
The notice should clearly indicate just what action is proposed to be taken after receiving public comments. Usually this would be potential adoption by the governing board, but sometimes the matter is referred to the planning board or a committee prior to final action.
If amendments will be considered in response to comments received, the courts indicate that saying so in the notice can reduce the need for an additional hearing if some amendments are in fact made. See this post for more on the need for a rehearing if amendments are made.
Substitute for Published Notice
One last thought on this issue is whether the time has come to dispense with the traditional newspaper notice. Many local governments find posting the hearing notice on the city or county web site (often with links to supplementary materials such as the application and staff report) and distribution on email lists are far more effective than a legal ad in the back of the paper.
Legislation has been proposed several times to authorize this instead of newspaper publication, as has been done by local bills for several jurisdictions. While the “digital divide” is still a real concern, proponents of the change noted those folks without internet access are also unlikely to be regularly reading the legal ads in the back of a newspaper. However, some readers do still regularly check the paper for these hearing notices and small town newspapers have noted the importance of the financial support provided to them by advertisements for public hearings. One rejoinder has been a suggestion to require use of display ads in the newspaper rather than legal ads.
In any event, this is certainly a question for further discussion – assuming we get the content of the notice right, how do we best assure those who need to see it really see it?
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2 Responses to “Contents of the Hearing Notice for a Zoning Amendment”
Donna Godfrey
Your second-to-last sentence compels me to write to you. We already use display ads in the newspaper (and not legal ads). Please tell me that we are in accord with State Law by doing so. Of course for rezonings, CUPs and variance requests we also mail out notices to abutting property owners and those within 150 feet of the subject property and we post the subject property. I’m just concerned about the idea that we must publish a legal ad.
Thank you
David Owens
Donna raises a good point.
The statutes on adoption and amendment of development regulations simply say that the notice of the hearing must be published in a newspaper of general circulation. G.S. 1-597 addresses regulations for newspaper publication, but again this statute largely defines which “newspapers” qualify and does not mandate any particular form for the notice.
The choice of whether the notice should be placed in the legal ads section of the newspaper or as a display ad is entirely up to each city and county. Most choose the legal ad option as a cost-saving measure, while some use a more expensive display ad in order to get more visibility. Several local governments have a standing order for a weekly display ad that includes all upcoming hearings as well as other meetings and local government news. But the choice is up to each city and county.
One other quick point. The state statute only mandates published notice for adoption, amendment, or repeal of a land development ordinance. The choice of whether to do a newspaper notice of hearings on special and condtional use permits, variances, and other quasi-judicial matters is left to the good judgment of each local government. That said, it is relatively common for ordinances to include a published notice requirement for these decisions as well. And if the requirement is in the ordinance, it is binding and must be followed.