Ernie Bass owns a sizable parcel of vacant land on the edge of Mayberry that fronts a major road.  He hunted and fished there for decades.  The Mayberry bypass was recently completed on the edge of the property and an out-of-town investor approached Ernie about buying the parcel in order to place an automobile dealership there.  Ernie is agreeable to the proposal, but his sale of the property is contingent upon it being zoned to allow the proposed new land use.  The land is now in a medium-density residential zoning district.  It must be rezoned to highway commercial to allow the auto dealership.  So Ernie submitted a rezoning petition to the town.

As the town staff, planning board, and town council consider the proposed rezoning, does it matter what Mayberry’s recently adopted comprehensive plan says about the future development of this site?  If so, how does the town go about plan consideration?  Are there legal requirements to be met and documented?

In some states, the policy guidance set out in the plan is binding and must be followed by the town council.  In other states, the council is free to ignore the plan.  North Carolina follows a middle ground.  The planning board and town council must consider the plan.  Both boards must document that they have done so.  But the plan is advisory only.  The council may elect to make a rezoning decision that is contrary to the plan.  State law sets procedural steps that the boards must follow to document that they have followed  the required plan consideration.  Any zoning amendment that is adopted without following those steps will be invalided if challenged in court.

Legal Requirements

The statutes in North Carolina, and in most every state around the country, require that zoning be undertaken “in accordance with a comprehensive plan.”  Our courts, like the majority of those in the U.S., have over the decades interpreted this to mean that local governments must apply zoning comprehensively to all of the territory within in planning and development regulation.  Further, our courts have said that reasoned study and analysis of a full range of land use issues facing the city or county should serve as the foundation for regulations, even though the plan itself is advisory only.

In a few instances, the plan takes on greater significance.  First, spot zoning is legal only if it is “reasonable.” Consistency with an adopted plan is a significant factor in determining what is reasonable.  Second, it is common that zoning ordinances make plan consistency a mandatory standard for issuance of special use permits.  Third, several cities and counties have included a provision in their ordinance that all rezonings must be consistent with their adopted plan, a self-imposed limit on the board’s discretion.  Otherwise, the plan is advisory and provides information to be considered when zoning amendments are proposed, but the plan does not dictate what decision must be made.

The statutory requirements for plan consideration have been modified several times. In 2005, the city and county zoning statutes were amended to require that a plan consistency statement be approved by both the planning board and governing board when any zoning amendment is considered.  Those requirements are now set out in G.S. 160D-604(d) for planning board statements and G.S. 160D-605(a) for governing board statements. The intent of this amendment was to require local governments to be aware of what advice and analysis is included in adopted plans so that it can be thoughtfully considered as zoning amendments are processed.  In fact, the provision for governing board statements provides that a formal statement is not required if, and only if, the minutes of the meeting show the plan was in fact actually considered by the board prior to its action on the zoning amendment. G.S. 160D-501(c) explicitly says the policies and recommendations in a plan are advisory only.  The General Assembly in 2017 modified this requirement to specify the form the statements must take and provided that if a zoning amendment is approved that is inconsistent with the plan, the zoning amendment is deemed to have amended the plan as well.  In 2019, when Chapter 160D was adopted the 2017 requirement for a required form of the consistency statement was repealed. Also, the provision that adoption of a rezoning that is inconsistent with the plan automatically amends the plan was clarified. G.S. 160D-501(c) and 160D-605(a) provide that the rezoning amends any future land use map in the comprehensive or land use plan. See this blog post for more on the statutory requirement.

While the substance of a plan consistency statement is not subject to judicial review, litigation regarding plan consistency analysis has made several procedural points clear.  The courts will examine whether the statement in fact exists, whether it was approved by the governing board, and whether it includes some minimal description of plan consistency.  A statement prepared by the staff and included in the meeting packet, but not approved by the governing board, is inadequate.  A simple conclusive statement that the action is or is not consistent with the plan, with no description of how or why that is so, is likewise inadequate.  A brief, summary notation of which plan policies support a zoning decision is adequate.

Local Government Practice

Compliance with the mandate to approve plan consistency statements has been noncontroversial in most North Carolina cities and counties.

A 2018 SOG Planning and Zoning Law Bulletin, Plan Consistency Statements, (click for link to free copy of the bulletin), summarized the statutes and case law in North Carolina regarding how plans are to be considered by local governments when zoning ordinances are amended.  The School surveyed all North Carolina cities and counties in 2018 about various land use practices.  This bulletin includes the survey responses about how local governments prepare and consider mandatory plan consistency statements when zoning amendments are proposed.  The bulletin also includes 20 consistency statements approved by cities and counties on a variety of types of zoning amendment decisions to illustrate the ways local governments have complied with this statutory mandate.

In most jurisdictions – some 77% of responding cities and counties – the planning or zoning staff prepares the first draft of the plan consistency statement.  In lower population jurisdictions with modest planning staff, this statement is prepared with some frequency by consultants, regional staff, local government attorneys, the applicant, or a board member.  In almost all responding jurisdictions – nearly 90% of responding cities and counties — both the planning board and governing board routinely approve the statements without modification.

The effect of the plan consistency statement is difficult to measure.  About a third of responding jurisdictions report it has made their boards more familiar with the contents of the plan.  About 40% report that it has led to zoning decisions being more likely to be consistent with the plan.  The general exception to these reports are cities with populations under 1,000.  These cities are much less likely to have a plan in the first place and thus the plan consistency statement has had only modest impacts for them.

In addition to this bulletin, see this Chapter 160D guidance document by Jim Joyce and Ben Hitchings on plan consistency statements for more information on the current statutory requirements.

Conclusion

State law mandates that a plan consistency statement be prepared and approved for every zoning amendment.  Failure to do so can invalidate a zoning amendment.  Compliance is not difficult.  While a simple check of consistent/inconsistent on a form is not enough, a short paragraph noting relevant policies that are implicated by the choice before the governing board is sufficient.  Failure of the planning board and governing board to approve a simple plan consistency statement, however, will render the decision invalid if challenged.  Having the planning board and governing board pause to consider the plan, and to briefly document in writing how it applies to the amendment under consideration, is a simple but necessary step in the zoning amendment process.

In our example, the planning board and town council board will need to look at the future land use map in the Mayberry plan to see what it shows for Ernie’s property. They will need to check to see if there are any policy statements about future development adjacent to the new bypass. Policies on economic development, availability of utilities, and resource protection might also be implicated. The policies and maps in the plan will not determine whether or not the council approves Ernie’s rezoning request, but the boards must document that they are aware of and have considered the advice and guidance provided by the plan. If they adopt a rezoning that is inconsistent with the plan’s future land use map, that action has the effect of automatically amending the future land use map, so that map must also then be updated to reflect the action that was taken.