Help! New development has outpaced our water and sewer capacity! There’s a high impact industry talking about locating in our community, and the land use is not addressed in our ordinance! What’s a community to do? Can we hit the pause button on development?

One option is to adopt a temporary moratorium on development permits long enough to adopt new plans or rules. Under G.S. 160D-107 North Carolina local governments “may adopt temporary moratoria on any development approval required by law.” While the authority is available, it is limited by specific procedures and a carve-out for residential uses. This blog outlines the procedures and limits for temporary development moratoria in North Carolina.

Necessity, Scope, and Plan

G.S. 160D-107(d) requires the local government to be clear about why the moratorium is necessary as well as when and how the issues will be resolved. At the time of adopting a development moratorium the regulation must include the following details:

(1)        A statement of the problems or conditions necessitating the moratorium and what courses of action, alternative to a moratorium, were considered by the local government and why those alternative courses of action were not deemed adequate.

(2)        A statement of the development approvals subject to the moratorium and how a moratorium on those approvals will address the problems or conditions leading to imposition of the moratorium.

(3)        A date for termination of the moratorium and a statement setting forth why that duration is reasonably necessary to address the problems or conditions leading to imposition of the moratorium.

(4)        A statement of the actions, and the schedule for those actions, proposed to be taken by the local government during the duration of the moratorium to address the problems or conditions leading to imposition of the moratorium.

Duration and Extensions

The length of a moratorium must be carefully tailored to the time needed to resolve the condition that prompted the moratorium. As stated at General Statute 160D-107(a), “[t]he duration of any moratorium shall be reasonable in light of the specific conditions that warrant imposition of the moratorium and may not exceed the period of time necessary to correct, modify, or resolve such conditions.”

A moratorium may only be renewed or extended if “the local government has taken all reasonable and feasible steps proposed to be taken in its ordinance establishing the moratorium to address the problems or conditions leading to imposition of the moratorium and unless new facts and conditions warrant an extension.” (160D-107(e)). Any ordinance to extend a moratorium must set forth the same statements required under 160D-107(d) “including what new facts or conditions warrant the extension.”

Process to Adopt a Moratorium

For a moratorium 60 days or shorter, the governing board must hold a legislative hearing and provide public notice of the hearing at least seven days before the hearing. For any moratorium greater than 60 days, the local government must follow the standard notice and hearing requirements set forth at G.S. 160D-601 (twice published notice of the legislative hearing). This standard notice and hearing requirement applies for a moratorium greater than 60 days and to any extension that would make the total duration greater than 60 days. There is a public safety exception to adopt a moratorium without notice “in cases of imminent and substantial threat to public health or safety.” (G.S. 160D-107(b)).

Limit on Residential Uses

Residential uses have specific protection from moratoria. Local governments may not adopt a moratorium “for the purpose of developing and adopting new or amended plans or development regulations governing residential uses.” (G.S. 160D-107(a)). Plainly a local government may not adopt a moratorium “because we are tired of these new residences,” nor  to adopt new regulations specifically to limit residential apartment developments.

In contrast, if a community lacks water and sewer capacity to support any growth, residential or otherwise, the statutory authority seems to allow the local government to adopt a general moratorium limiting multiple types of land uses. Notably, the restrictive language in General Statute 160D-107(a) states that a local government may not adopt a moratorium for the purpose of adopting regulations governing residential uses. A moratorium for the purpose of addressing public safety or adequacy of public infrastructure, it seems, is still authorized.

Permitted Development Exempt from Moratoria

G.S. 160D-107(c) lists certain development projects that are not subject to a moratorium unless there is an imminent threat to public health or safety. These exempt projects are:

• a project with a valid building permit
• a project for which a special use permit application has been accepted as complete
• a development with statutory vested rights (“development set forth in a site-specific vesting plan approved pursuant to G.S. 160D-108.1”)
• a development with common law vested rights (“development for which substantial expenditures have already been made in good-faith reliance on a prior valid development approval”)
• subdivision plats under review (“preliminary or final subdivision plats that have been accepted for review by the local government prior to the call for a hearing to adopt the moratorium.”) If the preliminary plat is approved, it may proceed to final plat without being subject to the moratorium.

Permit choice survives the moratorium. Pursuant to 160D-107(c), “if application for a development approval has been submitted prior to the effective date of a moratorium, G.S. 160D-108(b) [Permit Choice Rule] applies when permit processing resumes.” For more on permit choice, check out this blog.

Judicial Review

As outlined at G.S. 160D-107(f), a person aggrieved by a moratorium may seek a court order enjoining the enforcement of the moratorium. Such actions are to be scheduled for expedited hearing and proceedings get priority in trial and appellate courts. In such actions the local government bears the burden to show compliance with the statutory requirements for moratoria.

Conclusion

Local governments should regularly monitor development trends and update regulations accordingly. There are times, though, when the local development regulations simply aren’t up to date. When special circumstances require it, a North Carolina local government may hit the pause button on development permits so that plans and regulations may be updated. Any moratorium, though, must meet the procedural and substantive requirements of G.S. 160D-107. Those requirements include appropriate notice and hearing, a statement outlining the need for the moratorium, and adherence to the time limits and applicable permit protections.