Chapter 160D Now Effective

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The General Assembly enacted legislation — S.L. 2020-25 (S. 720) — making Chapter 160D effective on June 19, 2020. This law also allows cities and counties greater flexibility in the timing for adoption of amendments to conform local development regulations to the new statute. Local governments can enact their amendments now, but they are not required to do so until July 1, 2021. This law also makes technical and clarifying amendments to Chapter 160D.

 

Original Chapter 160D Effective Date

Chapter 160D consolidates, reorganizes, and modernizes the state’s planning and development regulation statutes and repeals the existing statutes that are collected and merged into this new chapter of the General Statutes. For details on the Chapter 160D and a collection of resources about the law and its implementation, see the SOG’s 160D website here.

When Chapter 160D was being considered in 2019, the Senate Judiciary Committee had several bills affecting local development regulations under consideration. The Committee merged the Chapter 160D bill (S. 422) with a set of statutory amendments proposed by the N.C. Home Builders Association (S. 355). This merger was based on the rationale that neither bill should be enacted without the other. The General Assembly adopted the combined bill. The governor signed the legislation, S.L. 2019-111, on July 11, 2019.

It was understood in 2019 that the provisions of Part I of S. 355 would need to be merged into Part II’s Chapter 160D prior to the repeal of the city and county zoning statutes amended by Part I. The same was true for other legislation being enacted in 2019 that amended provisions of statutes being consolidated into the new Chapter 160D. To address this need, the effective date of Chapter 160D was made January 1, 2021. A second reason for a delayed effective date of the new Chapter 160D was to give cities and counties time to amend their development regulations to conform to the new law. So, Sec. 2.10 of S.L. 2019-111 directed the General Statutes Commission (GSC) to study and recommend legislation to the 2020 session of the General Assembly to accomplish the integration of 2019 legislation into Chapter 160D. That would allow the GSC bill to be adopted in 2020 prior to the January 1, 2021 repeal of the statutes being integrated into Chapter 160D.

COVID-19 Stop-Gap Bill

In early 2020 the COVID-19 global pandemic reached the United States. While there was awareness of the potential for a major disruptive pandemic in January and February, it was not until March that the epidemic reached a stage requiring major shutdown of significant parts of U.S. social and economic life. Schools, businesses, sporting, and cultural events all came to an abrupt pause. The 2020 session of the General Assembly convened as scheduled on April 29, 2020 amid considerable initial uncertainty about how long the session could continue and the scope of work that could be completed given these pandemic uncertainties.

The General Assembly as one of its first 2020 actions adopted S.L. 2020-3 (S. 704), a bill dealing with a variety of COVID-19 exigencies. In the event the General Assembly did not have time to get to the GSC bill to integrate Part I of S. 355 and other 2019 legislation into Chapter 160D in the 2020 session, it delayed the effective date of Chapter 160D (and the repeal of the legislation enacted as Part I) until August 1, 2021. That date was chosen to allow time for the GSC bill to be considered by the 2021 session of the General Assembly if it could not be done in 2020. The bill also made the provision in Chapter 160D allowing adoption of state and federal maps by incorporation, including subsequent map updates, effective immediately. This was intended to assist local governments with adoption of updated flood insurance rate maps without the necessity of making zoning map amendments (and avoiding the requisite public hearings and meetings during the pandemic). This law also extended some development approvals for an additional five months. The impact of S.L. 2020-3 on planning and development regulation statutes is described in more detail in this post by Adam Lovelady

GSC Report

The General Statutes Commission staff had begun work on its required report and legislative recommendation in early 2020. The Commission met monthly through the spring to discuss draft legislation to integrate Part I of S.L. 2019-111 and other relevant 2019 legislation into Chapter 160D. Key parties who were engaged in the 2019 legislative debate, including the N.C. Homebuilders Association and the N. C. Bar Association’s Zoning, Planning, and Land Use Section, actively worked with the Commission and its staff throughout the spring. At its May 1, 2020 meeting the GSC approved its report and draft legislation on this issue. The full GSC report is posted here.

A bill to implement the GSC recommendations was introduced into the 2020 legislative session as S. 720. The bill was unanimously approved by the Senate and the House. It was signed by Governor Cooper on June 19, 2020, which is the effective date of this bill and therefore the new effective date for Chapter 160D. This law is S.L. 2020-25.

Provisions of the New Legislation

New Effective Date

When Chapter 160D was adopted in 2019, it delayed the new law’s effective date until January 1. 2021 to provide time for the General Assembly to enact legislation in 2020 integrating other 2019 legislation into the new Chapter and to allow local governments time to adopt conforming amendments to local development regulations.

The first of these reasons is addressed by adoption of S. 720 as recommended by the General Statutes Commission. As described below, this bill integrates Part I of S.L. 2019-111 and three other 2019 bills that amended affected legislation into Chapter 160D. As Chapter 160D has a number of improvements to the existing statutes that clarify and simplify the law, the General Assembly concluded that since the needed integration of other legislation has been accomplished, it was appropriate to make Chapter 160D and its improvements be made effective immediately rather than waiting until January 1, 2021. So the new effective date for Chapter 160D is June 19, 2020.

The General Assembly also recognized that the second reason for a delayed effective date still exists. Some local governments have largely completed the work needed to update their development regulations to conform to Chapter 160D. Others will be ready to do so later in the summer or fall as they were working towards the original January 1, 2021 deadline. However, still others have been delayed by measures taken in response to the COVID-19 pandemic. Staff has been working from home, planning board meetings to review proposed changes have been delayed or cancelled, and securing public engagement and needed public hearings has been difficult to schedule. Therefore, the General Assembly concluded local governments should be given an extra six months, should it be needed, to bring their regulations into conformity with Chapter 160D. Cities and counties that are ready to act can do so immediately, but they can take until July 1, 2021 if need be.

Since local ordinances will be amended at various times over the next year to conform with Chapter 160D, that raises a question about the validity of local ordinances that are not in compliance with the now effective Chapter 160D. Sec. 51(b) of S.L. 2020-25 resolves this by providing that valid local government development regulations that are now in effect remain in effect, but local governments are directed to amend them to conform on or before July 1. 2021. It further provides that Chapter 160D applies to local government development regulation decisions made on or after the earlier of: (i) the effective date of the amendments to local development regulations made to conform to the provisions of Chapter 160D or (ii) July 1, 2021. Until a local government makes its conforming ordinance amendments, the prior statutory provisions of Chapter 160A and 153A (as amended by Part I of the 2019 legislation) still apply. As a result, the provisions of Chapter 160D will be phased in around the state over the next year as each local government adopts its ordinance updates, with a deadline of July 1, 2021 for that to happen. Chapter 160D will fully apply to all local governments on July 1, 2021 even if no conforming amendments have been adopted.

Integration of 2019 Legislation into Chapter 160D

Part I of S.L. 2019-111. The most substantial amendments to Chapter 160D center on integrating amendments needed to incorporate Part I of S.L. 2019-111. The substantive provisions of Part I are reviewed in the School of Government’s bulletin on 2019 planning and development regulation that is posted online here.

Some of these amendments simply insert the language added by Part I into the appropriate location in Chapter 160D. For example, the provision limiting down-zonings initiated by someone other than the landowner or the local government is added as G.S. 160D-601(d). The requirement for actual notice to the landowner for third-party rezoning proposals in G.S. 160d-602(d) is deleted. The limits on conditions in conditional zoning is added to G.S. 160D-703(b) and similar limits of on special use permit conditions is added to G.S. 160D-705(c).

The 2019 amendments to the statutes regarding judicial review of development regulation decisions were incorporated into Article 14 of Chapter 160D. The provision on supplementing the record on appeal were added in G.S. 160D-1402(i), the provision on loss of a property interest not rendering certain claims moot was added as G.S. 160D-1402(j1), and the provision on stays added as G.S. 160D-1402(n). A new section G.S. 160D-1403.1 was added to incorporate the 2019 provisions on civil actions and joinder and a new section G.S. 160D-1403.2 was added to incorporate the provision on estoppel not applying if the owner is challenging conditions that that were not consented to in writing by the landowner or permit applicant.

The more challenging task was reconciling the provisions of Part I regarding vested rights with G.S. 160D-108. This section of Chapter 160D collected the various statutory provisions regarding vested rights. It placed them in a clear organizational structure without changing the underlying policies of the existing law. The vested rights amendments made by Part I of S.L. 2019-111, however, were based on the structure of the then-existing law. It proved impossible to incorporate those 2019 amendments into the new structure of Chapter 160D-108 without making some modest policy adjustments. There was not consensus among the affected parties as to how to accomplish that. Nor was there consensus on whether the existing provisions relative to site specific development plans (such as the list of exceptions) should be applied to all statutory vested rights. Given the legislative directive to add the 2019 legislation to Chapter 160D substantially intact, the General Statutes Commission elected to propose amending G.S. 160D-108 to return to the prior statutory structure of G.S. 160A-385 and 153A-344. However, since the 2019 amendments did not alter the structural framework for site specific development plans, the provisions of G.S. 160D-108 relative to those vested rights was left intact and renumbered to G.S. 160D-108.1. The 2019 amendments to the permit choice statute were then left in G.S. 143-755, with a simple cross-reference in G.S. 160D-108(b) rather than reiterating those in Chapter 160D.

Other 2019 Legislation. The prohibitions created by S.L. 2019-174 regarding setting minimum house sizes in zoning regulations was added as G.S. 160D-702(c) and the same provision relative to subdivision regulations was added as G.S. 160D-804(i). The revised provisions made by S.L. 2019-79 regarding performance guarantees to assure completion of improvements required by subdivision regulations were incorporated into a new G.S. 160D-804.1. The provision limiting requirements for burial of existing power lines was incorporated as G.S. 160D-804(h). The reference to the official map act in G.S. 160D-916(b) was repealed as that law was repealed by S.L. 2019-35. The revised provisions on certification of building components made by S.L. 2019-174 were incorporated into G.S. 160D-1106 and the provision regarding making initial reviews of building permit applications within 15 days was added to G.S. 160D-1110. The provision on temporary occupancy permits made by S.L. 2019-174 was added to G.S. 160D-1116(b) and the provision of requiring a security bond for these was deleted.

2020 Farm Bill. The 2019 Farm Bill (S. 315) proposed several changes related to zoning of bona fide farm activities by county zoning regulations. That bill was not enacted in 2019 but it has now been enacted, effective June 12, 2020, as S.L. 2020-18. The provision exempting sport shooting ranges from county zoning was deleted from the bill before passage. However, it does add hunting, fishing, and equestrian activities to the list of re bona fide farm exemptions in G.S. 153A-340(b). As this law was enacted after the GSC bill had been approved, it will be incorporated into G.S. 160D-903(a) by other 2020 legislation. The adjustment to Chapter 160D is currently included in S. 374.

Clarifying Amendments

In addition to integrating previously adopted legislation into Chapter 160D, S.L. 2020-25 makes additional technical, stylistic, and clarifying amendments. None of these are substantial policy changes in the law.

Plan Required to Retain Zoning Authority. One early issue that had arisen was exactly what type of plan must be adopted and maintained by a local government to retain authority to apply zoning regulations after July 1, 2022. As originally adopted, G.S. 160D-501(a) required adoption of a “comprehensive plan.” Some smaller-population jurisdictions asked whether a land use plan would be sufficient. Sec. 11 of S.L. 2020-25 clarifies that either a traditional comprehensive plan or a simpler land use plan will suffice.

Sec. 3 of S.L. 2020-25 also amends G.S. 160D-102 to simplify the definition of a “comprehensive plan.” The original definition included other types of plans (such as small area plans, neighborhood plans, and transportation plans). These other plans are now deleted from the definition of a “comprehensive plan.” These other plans are still allowed, but the confusing inclusion of them within the definition of a comprehensive plan is removed. The permissible contents of a comprehensive plan set out in G.S. 160D-501(b) are not changed.

Reinserting Omitted Provisions. Four provisions in the existing statutes were inadvertently repealed in 2019. This law reinserts them into the statutes.

G.S. 160A-439.1, which allows appointment of a receiver to rehabilitate, demolish, or sell a dilapidated house, was added to the statutes in 2018 after Chapter 160D had been drafted. The bill enacting Chapter 160D inadvertently failed to incorporate that statute. Sec. 38(a) of S.L. 2020-25 adds this provision as G.S. 160D-1130. The 2018 statute applied only to cities. The General Statutes Commission recommended extending this authority to counties as well in the interest of uniformity, reasoning that its use is optional rather than mandatory and those counties that wanted to avail themselves of the tool could do so while those that do not would not be required to do so. However, the North Carolina Association of County Commissioners advised the sponsors of S. 720 that they preferred the statute not be extended to counties, so the bill was amended prior to enactment to return to giving this power to cities only.

G.S. 153A-331(d) gives counties the authority to collect funds for development of roads in subdivisions located in municipal extraterritorial areas and then pass those funds to the city. That provision was inadvertently left out of Chapter 160D. Sec. 20(a) of S.L. 2020-25 adds it as G.S. 160D-804(c)(3).

G.S. 160D-1405(c1) was added to reinsert the provision of G.S. 160A-364.1(d) and 153A-348(d) regarding a ten-year statute of limitation for enforcement of requirements to terminate a nonconforming use.

Chapter 160D relocated the provisions regarding treatment of family care homes from Chapter 168 of the General Statutes to G.S. 160D-907. The existing statutory provisions in Chapter 168 were then to be repealed upon the effective date of Chapter 160D. The repeal provision, however, inadvertently also repealed G.S. 168-23, which limits the application of private restrictive covenants to family care homes. Sec. 49 of S.L. 2020-25 eliminates the repeal of G.S. 168-23, leaving that statute in place.

Specification of Types of Hearings. One goal of Chapter 160D was to provide greater clarity as to the type of public hearing that is required prior to making development regulation decisions. Rather than simply require a “hearing” or a “public hearing,” Chapter 160D specifies whether the hearing is a legislative, evidentiary, or administrative hearing and defines those terms. While this was done for most references to hearings, not all references to hearings were corrected in this manner. S.L. 2020-25 corrects this by specifying the type of hearing required in those few instances where that was not accomplished in 2019. Most of these instances are administrative hearings related to building and housing code implementation (examples are in G.S. 160D-947, 160D-1005, 160D-1129, and 160D-1312).

Geographic Jurisdiction for Cities and Counties. G.S. 160D-201 was updated to clarify partial geographic jurisdiction in cities and counties. Sec. 7 of S.L. 2020-25 adds G.S. 160D-201(c) to codify current case law that a city zoning and subdivision regulation must be applied to the city’s entire planning and development regulation jurisdiction (all of its corporate limits and any extraterritorial jurisdiction). It confirms that a county may apply its zoning and subdivision regulations to all or a part of the unincorporated area of the county (but it does not carry-forward the provision from G.S. 153A-342(d) that each zoned area be at least 640 acres with ten separate property owners).

Duration of Local Approvals. G.S. 160D-108 was clarified to provide that while a local development approval expires in one year if no other time is set by statue, a local government has the option of providing for a longer life for some or all of its local approvals (such as providing that a special use permit expires if work is not commenced within two years).

Others. Other modest clarifications were made. G.S. 160D-108(g) was clarified to note the authority for continuing review to ensure compliance with the terms of project approval applies to all vested rights, not just site-specific development plans. G.S. 160D-1110 was clarified to clearly limit the provision requiring that initial permit application reviews be done in 15 days applies only to building permit reviews, not all development approvals. G.S. 160D-1129 was amended to allow the area within which orders to repair, close, or demolish nonresidential buildings can be issued to include areas defined in a duly adopted comprehensive plan. The title to G.S. 160D-1201(a) regarding unfit dwellings was amended to make clear that it applies to occupied and unoccupied residential buildings.

Technical and Stylistic Amendments

S.L. 2020-25 makes technical and stylistic amendments to Chapter 160D. None of these changed the meaning of the amended provisions.

Greater uniformity of terminology was secured by using the term “city” throughout the Chapter rather than the term “municipality.” Statutory cross-references were corrected, mostly where the cross-reference was based on an earlier edition of Chapter 160D and had not been updated as the bill evolved over three legislative sessions. The new effective date was updated wherever it appears in Chapter 160D. Unduly legalistic language was removed, passive voice and awkward provisions were edited, and additional gender-neutral language was employed.

Conclusion

After six years of discussion, deliberation, and amendments, as of June 19, 2020 Chapter 160D now sets the legislative framework for local planning and development regulations. It provides a clear organization for these statutes, greater clarity, and greater predictability. It unifies the authority, definitions, and procedures to be followed for all cities and counties. Local governments do, however, have greater flexibility on the time for adoption of local conforming ordinances. They can do so immediately, but that have until July 1, 2021 to act if additional time is needed for the staff work, planning board consideration, hearings, and governing board action.

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