As part of a broader decriminalization effort in North Carolina, most development regulations may no longer be enforced criminally. This blog outlines the new restrictions and limited exceptions.

Other enforcement options—notices of violation, civil penalties, court action, and more—are still available to enforce land development regulations. Those enforcement tools are outlined in this blog on the basics of Enforcement of Development Regulations.

Decriminalization

Session Law 2021-138 (Senate Bill 300) is a wide-ranging criminal justice reform law. Among other reforms, the law takes steps to decriminalize some local ordinances. Section 13 amends the local government authority for criminal enforcement of local ordinances (G.S. 153A-123 for counties and G.S. 160A-175 for municipalities). My colleague Frayda Bluestein wrote about the legislation here: https://canons.sog.unc.edu/legislature-decriminalizes-local-ordinances/

Under the new statutory language, a local government must amend local ordinances to specifically identify violations that may be enforced criminally. Additionally—and more importantly for planning and zoning—the new law prohibits criminal enforcement of “[a]ny ordinance adopted under . . . this Chapter, Planning and Regulation of Development, or its successor, Chapter 160D of the General Statutes, except for those ordinances related to unsafe buildings.” In other words, general land use regulations may not be enforced with criminal penalty.

Development Regulation Enforcement

When it comes to enforcement of land use ordinances, G.S. 160D-404 provides some enforcement options and cross-references to G.S. 153A-123 for counties and G.S. 160A-175 for municipalities. Those statutes, in turn, allow for enforcement of ordinances by fines, civil penalties, court action, and criminal enforcement of misdemeanors. With the changes to the state law that general misdemeanor enforcement is no longer available for ordinances adopted under Chapter 160D.

What about development ordinances for which there is specific authority for misdemeanor enforcement in Chapter 160D? That authority likely is gone except for ordinances relating to unsafe buildings. G.S. 160D-807, for example, states that transfer of unpermitted lots is a Class 1 misdemeanor. Session Law 2021-138 does not specifically amend the language of G.S. 160D-807, but the broad prohibition on criminal enforcement of development regulations (ordinances under Chapter 160D) appears to prohibit criminal prosecution for illegal subdivision.

There are certain actions identified in Chapter 160D as misdemeanors that are direct enforcement of provisions of Chapter 160D, not an ordinance adopted under Chapter 160D. These include the failure of an official to perform duties (G.S. 160D-1109) and lying under oath in a quasi-judicial matter (G.S. 160D-406). These are not necessarily enforced through the local ordinance, so it is not clear if or how those are affected, but arguably they may still be enforced criminally.

Exception for Unsafe Buildings

There are other examples in Chapter 160D of specific violations identified as criminal misdemeanors. Since these violations would be pursuant to ordinances adopted under Chapter 160D, S.L 2021-138 would decriminalize them, but there is an exception “for those ordinances related to unsafe buildings.” It is not clear if the reference to “unsafe buildings” is a narrow reference to building condemnation or a broad reference to building safety in general (encompassing building code, certificates of compliance, minimum housing, and more). Depending on that interpretation, some or all of the following topics arguably may still be enforced as misdemeanors since they are violations of “ordinances related to unsafe buildings”: enforcement of violation of stop-work order (160D-404), building permit violation (160D-1110), certificate of compliance violation (160D-1116), removing notice from condemned building (160D-1120), and unsafe structure compliance (160D-1124, -1129, and -1203).

Authority beyond Chapter 160D

What about the local environmental regulations authorized in Chapter 160D with cross-reference to other chapters of the General Statutes? This is a tough one. The answer likely depends on the details of the particular ordinance and the ordinance adoption: Was it authorized and adopted under 160D or under the separate authority?

Consider this example: G.S. 160D-922 authorizes local governments to “enact and enforce erosion and sedimentation control regulations as authorized by Article 4 of Chapter 113A of the General Statutes and shall comply with all applicable provisions of that Article . . . .” In turn, G.S. 113-64 specifically authorizes criminal penalties.

Any person who knowingly or willfully violates any provision of this Article or any ordinance, rule, regulation, or order duly adopted or issued by the Commission or a local government, or who knowingly or willfully initiates or continues a land-disturbing activity for which an erosion and sedimentation control plan is required, except in accordance with the terms, conditions, and provisions of an approved plan, shall be guilty of a Class 2 misdemeanor that may include a fine not to exceed five thousand dollars ($5,000).

Chapter 160D includes similar cross-references to substantive grants of power for floodplain regulations (G.S. 160D-923 with reference to G.S. 143, Art. 21, Part 6), mountain ridge protection (G.S. 160D-924 with reference to G.S. Ch. 113A, Art. 14), water supply watershed management regulations (G.S. 160D-926 with reference to G.S. 143-214.5, and airport zoning (G.S. 160D-904 with reference to G.S. Ch. 63, Art. 4). Stormwater regulations get slightly more complex, with the statutes stating at G.S. 160D-925 that “[a] local government may adopt a stormwater management regulation pursuant to this Chapter, its charter, other applicable laws, or any combination of these powers.” That section provides (and cross-references) additional authority for local regulation of federal, state, and local government projects; additional discharge regulations; and regulations to comply with NPDES permits.

For any of these examples, if an ordinance was merely adopted under Chapter 160D (or its predecessors in Chapters 160A and 153A) and enforced under the general enforcement authority for local land development regulations, then that ordinance likely is impacted by S.L. 2021-138. It may not be enforced criminally. But, for many of these examples, the reference in Chapter 160D is merely cross-referencing to the substantive grant of authority elsewhere in the General Statutes. As such, the local ordinance may have been adopted pursuant to clear authority beyond Chapter 160D. Arguably such ordinances would not be impacted by S.L. 2021-138 and may still be enforced criminally.

S.L. 2021-138 does prohibit criminal enforcement of “[a]ny ordinance adopted under . . . Chapter 160D of the General Statutes, except for those ordinances related to unsafe buildings.” Yet, a broad interpretation of S.L. 2021-138 to prohibit any and all criminal enforcement of erosion & sedimentation control, water-supply watershed protections, and the others, would effectively decriminalize laws from Chapters 113A and 143 of the General Statutes. That would greatly broaden the scope of G.S. 2021-138. That does not seem to be the intent of the legislation.

Police Power Ordinances

The discussion thus far has focused on planning and development regulations adopted under Chapter 160D of the North Carolina General Statutes. Many ordinances related to land use and activities are not adopted under Chapter 160D, but are adopted as general police power ordinances under the authority of Article 8 in Chapter 160A (municipalities) and Article 6 of Chapter 153A (counties). These include junk car ordinances, nuisance lot ordinances, noise ordinances, and the like. Since those are not ordinances adopted under Chapter 160D, those general police power ordinances may be enforced through the general ordinance enforcement options, including through criminal enforcement. But, as noted above, a local government must amend the local ordinance to specifically identify violations that may be enforced criminally.

Despite the general authority, certain police power ordinances are specifically excepted from criminal enforcement. For counties: business licensing, mobile home registration, stream-clearing programs, outdoor advertising, solar collectors, cisterns and rain barrels, and tree ordinances. For municipalities: stream-clearing programs, business licensing, outdoor advertising, solar collectors, cisterns and rain barrels, taxi regulations, building setback lines, curb cut regulations, and tree ordinances. While legislation prevents criminal enforcement of these ordinances, local governments may still use the civil enforcement tools for local ordinance violations.

Conclusion

While there are notable restrictions on criminal enforcement of land use ordinances, other enforcement options remain, including notice of violation, civil penalty, withholding permits, and court action.