In the immediate aftermath of a storm and the long weeks and months of recovery, development regulations are a double-edged sword. Carefully tailored regulations can ensure public safety, avoid future loss, and facilitate recovery and redevelopment. Other development regulations can get in the way of recovery and run counter to necessary public safety. This blog explores the ways that development regulations might be altered and amended to facilitate recovery.
In general, emergency declarations do not waive development regulations. While the governor could override local zoning if necessary, that would be rare. So, when changes to development regulations are necessary the local government must follow the standard process for that amendment.
Emergency Declaration and Ordinances
One question that commonly comes up: Can we just override development regulations with a emergency declaration? The authority for emergency declarations does not directly include authority for amending development regulations. There is limited authority for the Governor to override local regulations in extreme situations. General amendments to development standards and processes, however, must go through the standard amendment process.
Under the North Carolina Emergency Management Act (Chapter 166A of the General Statutes), state and local government officials are empowered to take certain actions to prepare for, respond to, and recover from emergencies and disasters. There is no direct mention of waiving zoning or development permitting. The only direct mention of zoning is at G.S. 166A-19.12(11): The NC Division of Emergency Management is empowered to recommend zoning and development regulations for mobile homes and other nonpermanent structures to mitigate effects of an emergency.
The Governor has some power to override local development regulations in particular situations. As authorized at G.S. 166A-19.30(b), during a declared state of emergency the Governor, with the concurrence of the Council of State, may “waive a provision of any regulation or ordinance of a State agency or a political subdivision which restricts the immediate relief of human suffering,” and obtain and maintain “facilities for emergency management without regard to the limitation of any existing law.” So, if necessary for the immediate needs of public health and safety in early recovery efforts, the Governor with concurrence from the Council of State, could override local development regulations. If an emergency necessitated a field hospital, mobile morgue, refugee camp, or other major temporary land use, the Governor could trump local zoning. Few recovery land use matters will rise to the level of Governor’s override, however. Most land use amendments will be handled by standard process.
(As an aside re: temporary emergency management operations: It is possible that a local zoning ordinance may allow such activities as a “government” land use. Government land uses are commonly allowed in many zoning districts.)
Under G.S. 166A-19.31 local governments are authorized to adopt ordinances to deal with states of emergency, but that authority is focused on restrictions and prohibitions (such as curfews, evacuations, and control of transportation, gas, alcohol, and dangerous weapons and substances). There is no clear authority for an emergency ordinance to waive or alter zoning or other development regulations.
Thus, if local officials need to alter development regulations in the wake of a disaster, they will need to follow the proper amendment process for that development regulation.
Source of Rules and Process for Amendment
As local officials think about adjusting development regulations, they must think about the source of the particular rules and the process for amending such rules. Is the rule a local rule or state or federal rule? Is the rule adopted as legislation or ordinance? Or is the rule an internal process policy?
Building code standards are set by the State of North Carolina. There is very little authority for local modifications to building code standards. The state can step in with legislation to adjust building code standards, either through legislation by the General Assembly or through code amendments through the Building Code Council or Residential Code Council.
What about local land use regulations like zoning and historic preservation? In general, zoning standards are adopted at the local level. If a community desires to adjust those rules they must go through the regular process. An amendment to a local development regulation must follow the prescribed Procedures for Legislative Development Decisions. Note that process can be shortened by aligning the planning board review with the governing board hearing, as discussed in the section on “’Quickly’ Amending the Zoning Ordinance” here. If a policy needs to be changed (something not memorialized in an ordinance), then the local government should follow the same process for how the policy was initially adopted.
Tensions Between Policy Goals
In the push to build back from disaster, some communities look to reduce regulations and streamline processes. Eliminating unnecessary rules, speeding up review processes, and reducing fees can be helpful steps for recovery. But communities must also maintain basic public health and safety standards. There is a natural tension between the desire to reduce regulations and the need to protect the community and individuals.
The local flood damage prevention ordinance is a primary example of this tension: After a devastating flood a community may desire to reduce requirements for development in the floodplain so folks can build back to the prior condition. Such action could have significant negative impacts for individuals and the broader community. Reducing floodplain regulations could set the stage for repeated devastation (as residences and businesses are put back in harm’s way). Additionally, if a community does not have a compliant flood damage prevention ordinance, residents and businesses are not eligible for flood insurance through the National Flood Insurance Program (NFIP) and federal disaster assistance is limited.
Potential Topics for Adjustment
There are many topics that a community may consider adjusting for disaster recovery. A few are outlined below.
Moratorium. In some cases a community may need to pause development in order to get infrastructure repaired, new regulations in place, or plans adopted. The community may adopt a development moratorium for a stated purpose and for a limited amount of time. This blog on Temporary Development Moratoria outlines the basic authority and procedures.
Permit Extension. Following some disasters it may take time for the development industry to get back up to normal routine. A permit extension provides a broad-based extension for the many development permits that would otherwise expire and require additional application and review. In some cases the General Assembly adopts permit extension, but a local government could adopt a local permit extension on its own.
Streamline Review and Permitting. Review processes and approval requirements may need streamlining for recovery. If a review process is prescribed by ordinance, then that ordinance will need to be amended. If a review process is simply set by internal office policy, then that policy could be adjusted in the same manner it was set.
Note that the substantial damage assessment process will necessarily slow down some repairs and recovery.
Fees. A local government or the State may desire to support recovery efforts with fee waivers. In the wake of Hurricane Helene the General Assembly adopted a moratorium on certain permit fees. Under Part 16 of the Disaster Recovery Act of 2024, Session Law 2024-51, local governments “shall not impose any fee associated with a permit, inspection, or certificate of occupancy required by law for construction, reconstruction, alteration, repair, movement to another site, removal, or demolition of a manufactured home, building, dwelling, or structure damaged as a direct result of Hurricane Helene.” The moratorium applies in the counties designated under the presidential disaster declaration and runs from September 26, 2024, to December 31, 2024. Any fees that were collected prior to the law must be refunded, and local governments must post the availability of the refund on the local government website. This section also applies to the Department of Insurance.
The language of the Disaster Recovery Act indicates that the permit fee waiver is targeted at building permit fees. The language is broad, however; it refers to “any fee associated with a permit, inspection, or certificate of occupancy.” As such, this language arguably waives fees for zoning permits and similar development approvals.
A local government could choose to waive other fees. Such waiver would need to be adopted by governing board action into the local fee schedule. If the fee schedule was adopted by ordinance, it should be amended by ordinance. Some fees (such as utility fees) have a prescribed process, including public hearing. Any required procedure must be followed to amend the fee schedule.
A word of warning: The inclination to waive some fees is understandable, but communities should be careful about cashflow, especially for utilities.
Temporary Housing. After many natural disasters housing is a major concern. Temporary housing solutions are necessary, but may not fit within the standard development regulations. This blog on Temporary Housing and Zoning Amendments outlines key considerations.
Floodplain Regulations. Floodplain regulations are one notable area where local modification of the state building code is permissible. Local governments have authority to adopt more stringent code standards in order to meet federal floodplain requirements. For floodplain management, “[l]ocal floodplain regulations may regulate all types and uses of buildings or structures located in flood hazard areas identified by local, State, and federal agencies.” Such regulations may address improvements, floor elevation, mechanical and electrical systems, foundation construction, flood resistance, and other measures deemed necessary. Floodplain modifications do not require approval by the Building Code Council or Residential Code Council. G.S. 143-138(e).
While there is authority for increasing floodplain regulations, there is risk with relaxing floodplain regulations. As discussed above under Tensions Between Policy Goals, any effort by a local government to relax floodplain restrictions will risk losing access to flood insurance and disaster recovery funds.
Other Development Regulations. There are many other topics that may need adjustment. Local ordinance provisions on nonconforming situations commonly address whether and when a structure can be rebuilt. In a recovery phase, that may be problematic. Local demolition standards and processes may work during normal times, but may need adjustment during disaster recovery. Historic preservation ordinances and design standards may need updates to allow for recovery and resilience, as highlighted in the Historic Resilience Project. The American Planning Association has a helpful resource outlining additional issues and topics for consideration: Donovan Finn, “Zoning and Disaster Recovery,” Zoning Practice, Vol. 38 No. 7 (July 2021).
Conclusion
Following a disaster, development regulations can be a help and a hindrance. There are limited options for the Governor to override local development regulations for dire emergency management needs, but those scenarios are rare. Local government emergency declarations do not address development regulations. If a local government desires to change certain development standards or procedures for recovery, they will need to follow the applicable process for making such change.
