A property owner has requested for the local government to rezone her property to allow for significant new development. This could bring substantial new investments, business, and residents. But it could also change the character of the place, burden public infrastructure, and alter neighborhood demographics. Should the local government approve the rezoning?

In general, legislative decisions such as zoning map amendments are left to the discretion of the governing board. Local elected officials may take in public opinion, technical analysis, and political judgment about what is in the best interest of the community. Some considerations are good and even required—planning board recommendation and comprehensive plan consistency, for example. Other considerations are off limits. Governing board members must not base decisions on the race, ethnicity, or religion of the applicant, landowner, or future tenants of the property.

This blog outlines those good and necessary considerations for legislative development decisions. A separate blog highlights the topics that are out of bounds.

Note that while some of these rules and concepts apply to other types of decisions, this discussion is focused on legislative development decisions. For an explanation of the types of development decisions, check out this blog.

General Considerations

A proposal to rezone property or amend the zoning ordinance raises many important and appropriate issues and concerns. What are the land use impacts of this development for the individual property owner? The neighboring property owners? The broader community? The local government? If approved, what will this mean for economic development and environmental impacts, property rights and social equity, infrastructure and opportunity, and the community’s vision for its future. Each of these are legitimate considerations for legislative zoning amendments.

Statutory Purposes and Considerations

General Statute 160D-701 sets forth the statutory purposes authorizing land use zoning regulation. To start, zoning regulations “shall be made in accordance with a comprehensive plan and shall be designed to promote the public health, safety, and general welfare.” The state law expands on that broad notion to set forth additional public purposes for zoning: to prevent overcrowding, to reduce congestion in the streets, to provide safety from fire and dangers and to ensure efficient and adequate public facilities and services. Under the authorizing state law, zoning regulations must be made with reasonable consideration of the following, among other things:

• “the character of the district and its peculiar suitability for particular uses”
• “a view to conserving the value of buildings”
• “and encouraging the most appropriate use of land”

Consideration of the Comprehensive Plan

A comprehensive or land use plan is a vision for the community based on careful analysis of existing conditions, robust community engagement, and strategic prioritization by the local government leaders. Under G.S. 160D-501, North Carolina local government must have a comprehensive plan or land use plan that is reasonably up-to-date as a condition of having and enforcing zoning. It is appropriate—even required—for the governing board to consider the applicable plans when it considers an amendment to the development regulations. If there is a request to rezone land on the edge of town for a medium-density residential development, how does that align with the policies and priorities identified by the community in the comprehensive plan? Is the site identified for infrastructure investment and residential development? Or, is the area identified to be maintained for low-density, agricultural uses? The community’s adopted vision should be considered when deciding about amendments to the development regulations.

For amendments to the zoning regulations, state law requires consideration of the comprehensive or land use plan. G.S. 160D-605 requires that the governing board must approve a statement describing whether and how an action is consistent or inconsistent with the applicable plan. While the comprehensive plan or land use plan is not binding—the governing board may adopt a rezoning even if that action is inconsistent with the applicable plans. But, there is a procedural requirement to consider the applicable plans in the process. While consideration of the comprehensive plan is not required under state law for other legislative actions, such consideration is still appropriate and recommended for other legislative development matters such as adoption or amendment of the subdivision ordinance, minimum housing code, or other development regulations.

For more detail, check out this 160D Guidance Document on Plan Consistency Statements.

Recommendations from Staff and Planning Board

A governing board can and should consider the recommendations of the planning board and local government staff when deciding on a rezoning or text amendment. General Statute 160D-604 specifically requires that amendments to the zoning ordinance (text or rezoning) must be referred to the planning board for review and comment. Other development ordinances (subdivision, minimum housing, etc.) must be submitted for planning board review for initial adoption and may be submitted for planning board review for subsequent amendments. When reviewing proposed legislative actions, the planning board considers plan consistency, among other things.

Typically, a local government provides for careful staff review of a proposal prior to it going to the planning board and governing board. The local government staff review may include technical analysis of the range of permitted uses and adequacy of public infrastructure and services, policy analysis of the extent to which a proposal aligns with adopted plans and policies, and fiscal analysis of the projected financial impacts of a proposed development or ordinance amendment, and other analyses as required by the local government policies.

As with the comprehensive plan, recommendations are not binding. A governing board may take action despite the recommendations from staff and boards. But, if a community finds that the governing board frequently takes action in contrast to the plans and recommendations, that may be an indication the community needs to update the plans or reconsider the expectations of review by the planning board and staff.

Consideration of All Uses

When it comes to a conventional rezoning—shifting from one standard zoning district to another standard zoning district—the governing board must consider the full range of uses permitted in the proposed district (See Hall v. Durham, 323 N.C. 293 (1988)). If the rezoning is approved, then the property owner will have rights to proceed with any of the allowed uses, so the governing board must give consideration to those uses. This is true even if the developer shows illustrative plans for what they hope to build. For example, if a developer seeks rezoning to the general Highway Commercial zoning district, the developer may indicate in the application materials or hearing that they plan to build a gas station and convenience store. If the rezoning is approved, though, the developer could move forward with a truck stop, big box store, storage facility, or any other uses permitted in the district.

For a conventional rezoning, the question is this: Would this zoning district and the full range of the allowable uses be appropriate in this location? (Not this: Would the specific proposed use and development be appropriate in this location?) In contrast, conditional zoning and special use permits are appropriately focused on a specific proposal and the approval may be conditioned on a particular site plan.

Conditions, When Appropriate

Conditional rezoning allows for site-specific conditions to be added to the rezoning. As authorized under G.S. 160D-703, a conditional zoning district must be proposed by the property owner and any conditions must be mutually agreed to by the local government and the property owner. While there is some flexibility for the substance of the conditions, they are limited to conditions that address the development’s conformance with applicable plans and the impacts reasonably expected to be generated by the development.

Conditions may include, among other things, limits on the allowable uses at that site. So, whereas a standard rezoning must consider all permissible uses, a conditional rezoning may be conditioned to limit the allowable uses.

For more detail, check out this 160D Guidance Document on Conditional Zoning.

Reasonableness for Rezoning

Courts generally defer to the judgment of elected officials to make decisions about what is in the best interest of the community.  But spot zoning—when a small area is zoned in a way that is different from surrounding area—receives heighted judicial scrutiny to ensure that the decision is in the public interest. Treating one parcel differently from the surrounding property raises concerns that the zoning may unfairly benefit or harm that owner (or the neighbors) or that improper factors—such as favoritism or antagonism toward an individual—may have motivated that zoning decision.

If spot zoning is challenged in court, the court will not presume the zoning to be valid, but rather will review the zoning very carefully to ensure that it is reasonable and in the public interest. North Carolina law permits spot zoning, but only if a local government can establish that a particular spot zoning is reasonable. As set forth in Chrismon v. Guilford County, 322 N.C. 611 (1988), North Carolina courts apply a set of factors to determine if a spot zoning is reasonable: (i) the size and nature of the tract; (ii) compatibility with existing plans; (iii) the impact of the zoning decision on the landowner, the immediate neighbors, and the surrounding community; and (iv) the relationship between the newly allowed uses in a spot rezoning and the previously allowed uses.

As protection against challenges of spot zoning for small scale rezonings, G.S. 160D-605 requires the governing board to adopt a statement of reasonableness along with the statement of plan consistency. For this statement the board may consider, among other factors,

(i) the size, physical conditions, and other attributes of the area proposed to be rezoned,

(ii) the benefits and detriments to the landowners, the neighbors, and the surrounding community,

(iii) the relationship between the current actual and permissible development on the tract and adjoining areas and the development that would be permissible under the proposed amendment;

(iv) why the action taken is in the public interest; and

(v) any changed conditions warranting the amendment.

For more detail, check out this blog on Spot Zoning.

Conclusion

These are some of the specific topics that the governing board definitely should consider for legislative development decisions. For a summary of the impermissible considerations—the topics that are out of bounds for legislative development decisions—check out the companion blog. And check out this blog for more on the Procedures for Legislative Decisions.