After site plan approval, the developer discovers a need to alter slightly the layout of the building. After a conditional zoning approval, the property owner decides to alter the parking layout to make better use of green space. And after a special use permit, the applicant requests permission to increase slightly the height of the building based on new architectural drawings. Do these actions require a full review by the board that approved the original development approval? Not necessarily.
This blog outlines the options and limits for administrative minor modifications for development approvals.
A change to a development approval requires additional approval. G.S. 160D-403(d) states that “[a]fter a development approval has been issued, no deviations from the terms of the application or the development approval shall be made until written approval of proposed changes or deviations has been obtained.” North Carolina caselaw and statutes outline the authority and limits for administrative minor modifications. These administrative modifications are authorized for conditional zoning (G.S. 160D-703(b)), special use permits (G.S. 160D-705(c)), and administrative development approvals (G.S. 160D-403(d)). Any such modifications must be defined in the ordinance, constrained by clear limitations, and adhere to substantive limits (no change to use or density).
Note that major amendments to an approved project still go through the standard approval process, not minor modification. If a requested change does not qualify as a minor modification, the applicant may still seek a major amendment to the approval. As required by state law, such proposed revisions must go through the full approval process. The details and considerations for such revisions are outlined in the blog on Major Amendments to Approved Developments.
Caselaw Limits on Administrative Decisions
Before we dig into the statutory details, we must be clear on critical distinctions the North Carolina courts have drawn between administrative decisions (such as minor modifications) and quasi-judicial decisions (such as variances). These distinctions are especially important because of the differing procedural requirements to protect the rights of affected parties.
As outlined in County of Lancaster v. Mecklenburg County, 334 N.C. 496, 434 S.E.2d 604 (1993), if a decision requires judgment and leaves substantial discretion to the decision-maker, it is quasi-judicial and must follow elements of a fair trial including an evidentiary hearing. If a decision is routine and nondiscretionary, then the decision is administrative or ministerial and there is no need for a quasi-judicial hearing. “In general, the zoning administrator is a purely administrative or ministerial agent following the literal provisions of the ordinance. The zoning administrator may well engage in some fact finding, . . . [b]ut, in such instances, this involves determining objective facts that do not involve an element of discretion.”
In Butterworth v. City of Asheville, 247 N.C. App. 508, 786 S.E.2d 101 (2016), the North Carolina Court of Appeals emphasized that there are limits to administrative decision-making. In that case, the local ordinance allowed a modification to certain standards when there was a finding of “unusual and unnecessary hardship.” The city treated that determination as administrative, but the court ruled that such a standard is essentially a variance. It requires the exercise of judgment and discretion, so it is quasi-judicial.
The court did clarify that some modifications may be allowed as administrative decisions, but such modifications must be based on “specific, neutral, and objective criteria.” The court identified acceptable administrative modifications in the Asheville code “such as the limitation of a deviation not in excess of ‘up to ten percent or 24 inches . . . from the approved setback,’ or a reduction of no more than ‘25 percent in the number of parking spaces required[.]’”
With this, when we consider administrative minor modifications, we must consider the limited scope of administrative decision-making.
Statutory Authority for Administrative Minor Modifications
While there is general authority within the broad zoning powers, Chapter 160D also includes explicit authority for administrative minor modifications. For development approvals generally, G.S. 160D-403(d) states “A local government may define by ordinance minor modifications to development approvals that can be exempted or administratively approved.” For conditional zoning, G.S. 160D-703(b) states “The zoning regulation may provide that defined minor modifications in conditional district standards that do not involve a change in uses permitted or the density of overall development permitted may be reviewed and approved administratively.” For special use permits, G.S. 160D-705 states “The regulations may provide that defined minor modifications to special use permits that do not involve a change in uses permitted or the density of overall development permitted may be reviewed and approved administratively.” And, for development agreements, G.S. 160D-1006(e) states that major amendments must go through the standard approval process, implying that minor modifications to development agreements could be handled similar to other minor modifications.
Distinguish Site Design Modification from Dimensional Standard Modification
There are two distinct types of minor modification, one clearly authorized by Chapter 160D and the other arguably authorized under the general zoning powers and applicable caselaw.
First, there are site design modifications—changes to the design of previously approved development approvals. This would include a tweak to the design of a preliminary subdivision plat or a slight alteration of the site plan required as a condition in a special use permit. For these changes, the development still meets the underlying zoning requirements, but there is a need for flexibility in the design of the site plan or preliminary subdivision plat. Chapter 160D clearly authorizes such site design modifications provided they are defined in the ordinance and subject to the prescribed limits. Even so, caselaw demands that such changes must follow clear, objective standards and a fair process.
Second, there are dimensional standard modifications—changes to the underlying zoning standards. These might include reductions in parking requirements or building setbacks that are set by ordinance. Local governments must take great care in allowing such modifications. These modifications are not explicitly authorized by Chapter 160D, but arguably may be authorized under the general zoning authority and applicable caselaw. As suggested in Butterworth v. City of Asheville, there may be authority to allow minor dimensional standard modifications as administrative minor modifications, but such decisions must be based on clear, objective standards and must follow a clear, fair process. But, if a dimensional standard modification is substantial, it is a variance—and must be decided by the board of adjustment through a quasi-judicial process.
Ordinance Details
Before the local planner starts processing administrative modifications, the allowable modifications must be clearly defined and limited in the ordinance. For additional detail on these topics and sample ordinance language, check out this 160D Guidance Document on Minor Modifications.
Define Minor Modification. The ordinance must define the types of changes that qualify for administrative review and the limits on such changes. Ordinances may include topics such as lot configuration, parking design, building location, and similar requirements. As discussed more below, the limitations are commonly phrased as numerical or percentage caps for the change (no more than five feet or ten percent, for example). Communities may permit administrative modification of a site plan that has been attached as a condition of approval to a conditional zoning district or special use permit. The ordinance may also define changes that do not qualify for minor modification—changes that require a major amendment—such as changes that would increase the traffic from the project beyond the levels projected in a Transportation Impact Analysis (TIA) or increase the stormwater impacts beyond what was identified in the stormwater analysis conducted as part of the original approval.
No change in use or density. The statutes prohibit administrative minor modifications for a conditional zoning approval or special use permit that “involve a change in uses permitted or the density of overall development permitted.” An administrative modification could not be used to convert a use from residential to commercial, for example. That said, there is the potential for some ambiguity. Could an administrative official approve a shift in equivalent amounts of activity between different uses within a similar category, such as trading an equivalent number of dwelling units from one housing type to another, or trading equivalent square footage between non-residential uses? Such modification may be possible if it could be demonstrated that the original approval foresaw such flexibility and the proposed shift did not increase the “overall density of development.”
Qualifying criteria for modification. When is a minor modification authorized? An administrator cannot have wide-open discretion for granting modifications. There must be specific, neutral, and objective criteria in place for when a minor modification is authorized. So, for example, a minor modification may be allowed to provide relief from a unique physical attribute of the property not known at the time of initial approval. With such a limit, the applicant will need to provide evidence of why relief is needed. While the administrator may need to engage in some fact finding, it may be administrative rather than quasi-judicial as long as it is defined by the ordinance and limits are placed on the discretion exercised by the local government staff person or appointed board.
Limits on amount of modification. In addition to clear criteria for when modifications are authorized, the ordinance should set specific, neutral, and objective limits for the permissible amount of modification. For example, a setback may be reduced up to ten percent or 24 inches, or a parking requirement may be reduced no more than 25 percent.
Decision-maker. The ordinance should identify which official or board is charged with reviewing a request for administrative modification. Administrative review functions can be delegated either to local government staff or appointed boards, as desired by the unit of local government.
Parcel-specific modification. In the case of modifications to conditional zoning districts and special use permits, the statutory authority permits the owners of individual parcels to “apply for modification of the conditions so long as the modification would not result in other properties failing to meet the terms of the condition.” Such a change applies only to the properties whose owners request the change.
Conclusion
An applicant probably should not go through a full quasi-judicial hearing to re-stripe the parking lot. But, an applicant also should not have the latitude to re-write essential conditions attached to the special use permit. The authority for administrative minor modification offers the option for handling small changes in an efficient administrative process while still routing major amendments through the full process.
