A developer proposes rezoning a parcel from a low density residential zone to a commercial zoning district. The neighbors would be satisfied with some of the uses allowed in the more intensive district, but are wary about others. The staff has several concerns about traffic flow and setbacks that are not addressed in the development standards in the proposed new zoning district. All of these are items that could be resolved with conditions on the approval. Is there a way these considerations be incorporated into the rezoning decision?

 As we saw in a previous post, there are serious legal problems if a city or county attempts to limit the range of uses allowed or attempts to impose site-specific restrictions when considering a rezoning to a conventional zoning district. In North Carolina there are two ways to get around this problem.

Before looking at those two options, a little background on the different types of districts is a useful starting point. As different adoption procedures must be followed depending upon which type of district is involved, it is vitally important that landowners, neighbors, staff, planning boards, and elected official understand these differences.

Traditional zoning districts cannot be used if site specific conditions are needed at the rezoning stage. The most common type of zoning district is the conventional district, such as single family residential, highway commercial, or light industrial. Conventional zoning districts (also sometimes termed “general use districts” or “base districts”) are those with a variety of permitted land uses in each district. Conventional zoning districts may also include some uses allowed only by special use permits. Many zoning ordinances also include overlay zoning districts. These are special zones in which requirements are imposed in addition to the basic or underlying zoning district requirements. In some instances overlay districts may relieve the property of a requirement in the underlying conventional district. Typical overlay districts include floodplain districts, historic districts, airport districts, and highway corridor districts. A third type of district included in many zoning ordinances is a floating district. These are districts that are defined in the text of the ordinance but are applied or mapped only upon petition. The most common example is a planned unit development (PUD) district, which often requires an overall concept plan for development of the entire tract prior to rezoning. A key limitation on all of these districts is that the standards and conditions must be uniform for all property placed in that district. Site specific variation in the standards is not allowed.

If site specific conditions are to be imposed on a rezoning, a special type of district must be used. North Carolina law  allows the use of conditional zoning. Prior to the adoption of Chapter 160D, there were two ways to do this — (1) adoption of a conditional use district that made all uses subject to a conditional use permit and (2) conditional zoning. In order to simplify matters, Chapter 160D in 2019 eliminated use of the complicated conditional use district scheme and the law now only allows use of conditional zoning as a means to include site-specific conditions on a rezoning.

The use of purely legislative conditional zoning began in North Carolina in the 1990s. Charlotte led the way with use of this tool. This approach incorporates all of the site-specific standards directly into the zoning district regulations. The court held conditional zoning was allowed by the zoning statutes and was constitutionally permissible in two cases from Charlotte. Summers v. City of Charlotte, 149 N.C. App. 509, 562 S.E.2d 18, review denied, 355 N.C. 758, 566 S.E.2d 482 (2002); Massey v. City of Charlotte, 145 N.C. App. 345, 550 S.E.2d 838, review denied, 354 N.C. 219, 554 S.E.2d 342 (2001). In 2005 the General Assembly amended the zoning statutes to explicitly authorize city and county use of legislative conditional zoning.

A standard practice in North Carolina cities and counties using conditional zoning is to amend the ordinance text to create a set of conditional zoning districts to correspond with each conventional zoning district (though such parallel districts are not legally required). However, rather than requiring that all uses secure a special use permit, as was done with conditional use district zoning, individualized conditions and site plan provisions are incorporated (usually by reference) into the zoning district requirements. In most instances, the provisions in the conditional district are more stringent than those in the corresponding conventional districts. The conditional district may, for example, have a much narrower list of permitted uses and may increase the buffering requirements to provide additional protection to neighboring uses. In the absence of a local ordinance provision to the contrary, it is however legally permissible to tailor standards that are less restrictive than those in the corresponding conventional district. Rakestraw v. Town of Knightdale, 188 N.C. App. 129, 136, 654 S.E.2d 825, 830, review denied, 362 N.C. 237, 659 S.E.2d 739 (2008). In Sapp v. Yadkin County, 209 N.C. App. 430, 704 S.E.2d 909 (2011), the court held there was no requirement that the conditional zoning district standards incorporate the special use permit standards from the parallel conventional zoning district.

The use of conditional zoning is commonplace in North Carolina.  Asked about the types of rezonings they had made over the past year, North Carolina cities and counties reported in 2006 that over a third of all rezonings included site specific conditions. The responding cities and counties reported consideration of 3,029 rezoning petitions. Fifty-seven percent were for rezonings to conventional districts, 21 percent to conditional use districts, and 15 percent to conditional districts. The use of conditions in rezonings was particularly common in more populous cities. Cities with populations over 25,000 reported over half of their rezoning petitions were for conditional rezonings. In the intervening years use of conditional zoning has become even more common as a number of local governments have opted to use conditional zoning rather than special use permits in order to tailor zoning regulations to individual sites.

State law imposes some limits on how conditional zoning is used. Land may be placed in a conditional district only upon petition of all of the owners of the land to be included. G.S. 160D-703(b) provides that specific conditions may be suggested by the owner or the government, but only those conditions mutually acceptable to both the owner and the government may be incorporated into the ordinance. These statutes also provide that any conditions imposed are limited to those that address the conformance of the development and use of the site to city or county ordinances and officially adopted plans and those that address the impacts reasonably expected to be generated from the development or use of the site. A good land use plan is vital for establishing a context for framing appropriate conditions, avoiding ad hocery run amuck. See this post for more details on the scope of permissible conditions.

Conditional zoning provide important opportunities to carefully tailor regulations to address the interests of the landowner, the neighbors, and the public. In the example we began with, conditional zoning can be used to limit the range of permitted uses on the property and to require a particular traffic design, neither of which can be done with a rezoning to a conventional zoning district. This often allows a developer to proceed with a project in a way that addresses site specific concerns of the neighbors and the local government.

Note:  April 2022 update incorporates adoption of Chapter 160D and other statutory amendments.