Cities and counties routinely consider proposals to amend their zoning ordinances. Amendments vary from the rezoning of a single parcel of land to major rewrites of the whole ordinance. The decision of whether or not to make a particular amendment is a legislative policy choice left to the good judgment and discretion of the elected governing board.

A variety of factors are considered by the governing board in making these decisions. One of the factors that must be considered is how the proposal relates to previously adopted plans. Under the General Statutes a zoning amendment is not required to be consistent with the plan, but both the planning board and governing board are required to consider the plan and to document that consideration with a written statement approved by the board.  For the most part this has become a routine and noncontroversial step in the zoning amendment process. 

When a local government adopts development regulations, there must be a rational basis for determining what those regulations should be. Zoning regulates where various land uses can be located and at what density and intensity of use.  To make rational and informed choices in adopting and later amending these regulations, there should be careful consideration of many factors, including what infrastructure is needed to support development, how the land uses relate to one another, what the community’s goals, objectives, and vision for the future are, and so forth.

Plan Consistency Statement Requirement

It has always been presumed that a comprehensive plan or land use plan is an essential tool to produce the data analysis, community engagement, and policy direction needed to allow rational choices in applying zoning. From the earliest days of zoning, statutes across the country have required that zoning be undertaken “in accordance with a comprehensive plan.” Some states, by statute or case-law, require zoning regulations to be in substantial compliance with an adopted plan.

That is not the case in North Carolina. Our courts have not mandated that zoning be consistent with a comprehensive plan. However, in 2005 the North Carolina planning statutes were amended to require that planning boards and the governing board review and consider any adopted plan when a zoning amendment is proposed.  That original plan consistency statement requirement is discussed in more detail in this 2011 blog post.

The statute only requires that the plan be considered, not that it be followed. Some zoning ordinances make plan compliance a mandatory factor for individual permit decisions, typically for a special use permit. But when a legislative decision is being made on a proposed zoning amendment, the statutes are clear that the plan is advisory in nature.  A zoning amendment that is inconsistent with an adopted plan is legal, so long as the governing board was aware of what advice and guidance the plan offers.  The statutory requirement is that the governing board’s awareness must be documented by a statement describing plan consistency that is approved at the time the zoning amendment is adopted.

Subsequent Litigation

One might think that a simple statutory requirement that planning boards and governing boards pull out their adopted plans and think about what, if any, useful guidance the plan provides before making a decision on a pending zoning amendment would be straight-forward and non-controversial. After all, the boards are not required to take action consistent with the plan, only to know and consider what it says.  In most instances that has indeed proven to be the case. But was confusion and controversy about plan consideration in a few high profile zoning disputes that led to litigation.

In the first case addressing the plan consistency statement requirement, the City of Kannapolis was considering a proposal to rezone a large recently annexed parcel from low-density residential to a district that would allow retail, office, and light industrial uses. The staff prepared an analysis of the compatibility of the proposed uses with the adjacent area and concluded the rezoning was consistent with the long-range goals of the city. The staff report was presented to the city council and the rezoning was approved.

Opposing neighbors challenged the rezoning. The court in Wally v. City of Kannapolis, 365 N.C. 449 (2012), sided with the neighbors.  The court held the statutory requirement for the council to approve a statement addressing plan consistency is clear and mandatory. The fact that a staff analysis was available for the board’s review is not the same as the governing board itself approving a statement on plan consistency. This case is discussed in more detail by my colleague Rich Ducker in this blog post.

The Wally case makes the fairly simple point that when the statute says the board must approve a statement, it means the board must really approve a statement, not just have a staff report in its meeting packet.  While the substance of the statement is not subject to judicial review, whether it was formally approved by the governing board is subject to review.  If the statement did not exist or was not clearly approved by the board, the statute is violated and the zoning amendment is invalid. G.S. 160D-605(a) was subsequently modified to allow the minutes to reflect the board’s actual consideration of the plan as an alternative to a formal adopted statement.

The second case addressing the plan consistency statement requirement arose when Queens University in Charlotte sought a zoning amendment to facilitate construction of a parking deck. Adjacent residents in the Meyers Park neighborhood objected.  The city’s zoning commission found the proposed amendment to be consistent with city plans and recommended approval. The city council agreed and adopted a statement that “this petition is found to be consistent with adopted policies.”

In Atkinson v. City of Charlotte, 235 N.C. App. 1 (2014), the court found this conclusory statement failed to meet the requirement of the statute that the governing board statement describe how the action is consistent with adopted plans and explain why it is reasonable and in the public interest.  The case is discussed in more detail by my colleague Adam Lovelady in this blog post.

These two cases confirm that the governing board must actually consider the plan when it amends a zoning ordinance. The statement it approves (or the discussion reflected in the minutes) must be more than a summary conclusion – it must include some modest discussion and explanation of what the relevant portions of the plan say and how the zoning amendment is or is not consistent with it..

Statutory Requirements

In 2017 the General Assembly amended the plan consistency statement requirement to add more specificity to the law regarding the mandated plan consistency statements. However, in the 2019 adoption of Chapter 160D those specific requirements for the form of the statement were repealed.

G.S. 160D-605(a) still requires consideration of the plan by the governing board before adoption of a zoning amendment. approval of a statement and the statement still must describe plan consistency and explain why the proposed action is reasonable and in the public interest. However, to avoid problems illustrated in the Wally and Atkinson cases noted, the statute provides that the requirements for a plan consistency statement are met if the minutes of the meeting where the the zoning amendment was adopted includes a clear indication that the board actually was aware of and considered the plan before acting on the zoning amendment. It is good practice to actually adopt a plan consistency statement and remove any doubt as to whether this consideration requirement was met, but this provision provides some latitude when it is obvious that there was full compliance with the spirit of the law.

For details on how to comply with the statutory mandate, see this Chapter 160D guidance document by Jim Joyce and Ben Hitchings on plan consistency statements.

In sum, the lessons of the Wally and Atkinson cases should continue to be considered.  The statutory requirement for consideration of plan consistency is not a legislative suggestion.  A statement on plan consistency should be explicitly approved by the governing board at the time a zoning amendment decision is made. The statement should be more than a one-sentence conclusion. It should both describe plan consistency or inconsistency and at least briefly explain the rationale of the decision. That said, the statement does not need to be a long, complicated, legalistic document. The statement does not have to be supported by evidence in the record, as would be the case for a quasi-judicial decision.  But it should be approved by the board and include a brief description of why the action is or is not consistent with the plan. Without approval of this statement, the minutes of the meeting must show that the board was fully aware of the plan contents and actively considered that prior to acting on the zoning amendment. Anything less risks judicial invalidation of the zoning amendment.