Note: Post updated 11/19/21 to incorporate statutory updates and make modest clarifications.
Local governments make hundreds of decisions every day under local development regulations. Permits are issued or denied. Enforcement actions are initiated. Ordinance provisions are interpreted. Property is rezoned. Ordinances are amended.
Do local governments have to provide notice that one of these decisions is pending and solicit comments? Once the decision is made, who has to be told about it?
Because many of these decisions have a significant impact on landowners, neighbors, and the community, state law requires the local government to provide notice and an opportunity to comment on some pending land use regulatory decisions. Since there is a limited time for appeals for some types of decisions, state law also requires that written notice of those decisions be provided.
This post summarizes when state law requires that notices be provided, the time for doing so, and the type of notice required. A summary table of the requirements is included. Individual local ordinances can expand upon these minimum requirements, but every city and county is required to at least meet these state requirements.
Notice of Pending Administative Decisions
For the most part there is no state mandate for prior notice of pending administrative decisions made by a local government staff. These decisions involve application of existing, objective standards. G.S. 160D-102(1). There is no public hearing required prior to an administrative staff member making a decision on a building permit, a certificate of zoning compliance, a notice of violation, or most preliminary or final plats. A few local ordinances may require notice to neighbors for these, but that is rare. For the most part these routine decisions are handled through direct communication between the applicant and the staff.
Notice of Administative Decisions
When a staff member makes a final, binding determination under a zoning ordinance, the right of the person receiving the decision to make an appeal to the board of adjustment is triggered. State law requires the local government to provide written notice of the determination to the party who sought the determination and to the owner of the property involved. G.S. 160D-403(b). The notice may be delivered by personal delivery, email, or first-class mail. Those persons then have 30 days from receipt of the written notice to file an appeal to the board of adjustment. If the notice is sent by first class mail, that notice is deemed to be recieved on hte third business day following depost of the notice in the mail.
Similar notice is to be provided when staff issues a notice of violation under G.S. 160D-404(a) or a stop work order under G.S. 160D-404(b). G.S. 160D-405(d). A notice of violation may also be posted on the property, but that is not required. As with determinations, there is then a 30-day period after notice is given for appeals to be filed.
Other persons who are directly affected by that determination have 30 days from the time they receive actual or constructive notice of the decision to file an appeal. There is no state requirement to send the notice to neighbors. State law also gives the property owner the option of posting the site with a sign notifying neighbors that a determination has been made, which is considered constructive notice to anyone else with standing to appeal. This voluntary posting by the owner triggers the start of the neighbors’ time to make an appeal. G.S. 160D-403(b).
Notice is also required for enforcement orders that require repairing, vacating, or demolishing residences that are unsafe for habitation under housing codes. G.S. 160D-1203. Notices to the owner by personal service or registered/certified mail and posting the property are required. There are similar statutory notice and hearing requirements for determinations regarding unsafe buildings. (G.S. 160D-1119.
Notice of Pending Quasi-Judicial Zoning Decisions
When a local government board makes a quasi-judicial decision – deciding a special use permit application, a variance request, or an appeal of a staff determination – it must hold an evidentiary hearing. Prior to 2013, state law left it to local ordinances to determine what “reasonable notice” of the hearing was to be provided. State law now sets a uniform standard for mandated notice of these hearings.
The local government holding the evidentiary hearing must provide both mailed and posted notice of the hearing. G.S. 160D-406(b). A notice of the hearing must be mailed to the person who initiated the hearing, the owner of the affected property, the owners of abutting properties, and anyone else specified by the local ordinance. Some local ordinances expand the mailing requirement to the owners of all properties within a set distance of the affected property (such as those within 100 feet of the affected property). The notice must be deposited in the mail at least 10 but not more than 25 days prior to the hearing. The local government must also post a notice of the hearing on the site involved. That sign has to be put up at least 10 but not more than 25 days prior to the hearing. There is no state mandate for publishing the notice of an evidentiary hearing in the newspaper. This broader published notice is not required because the purpose of these hearings is to gather facts about a particular case, not to solicit public opinion about a pending policy choice. The notion here is that the interests of those most directly affected and who are most likely to have relevant evidence to offer are best served by mailed and posted notice, while newspaper publication is oriented more to the general public. Some local ordinances, however, do require published notice of these hearings. If that is done in the ordinance, it must be followed and is just as legally binding as if it were requried by the state statute.
The Open Meetings Law also applies to these hearings, so in addition to the specific requirements noted above, the notices required by that law must also be provided. G.S. 143-318.10. A copy of the regular meeting schedule must be filed in a central location and posted on the local government’s web site (if it has one). A special meeting held outside the regular meeting schedule requires posting written notice of the meeting on the local government’s principal bulletin board, posting notice on the local government’s web site, and mailing a copy of the notice 48 hours in advance of the meeting to each person who has made a request for notification. Notice of an emergency meeting must be provided to the local news media.
Notice Quasi-Judicial Zoning Decisions
Once a local government board makes a decision on a quasi-judicial matter, that decision must be reduced to writing. The written decision has to include the resolution of any contested facts and must apply the applicable standards to the facts of the case. Once approved by the board and signed by the board chair, the written decision must be filed with the clerk to the board. The decision must then be delivered to the applicant, the owner of the affected property, and to any person who has made a written request for a copy of the decision prior to the time the decision is filed with the clerk. The decision shall be delivered within a reasonable time by personal delivery, email, or by first-class mail. The person who delivers the decision is to certify that proper notice of the decision has been made. G.S. 160D-406(j). Persons affected by a quasi-judicial decision only have 30 days from the time this notice is provided to initiate judicial review (three days is added to the time notice is sent if that is done by first-class mail).
Notice of Pending Legislative Decisions
Whenever a local government adopts, amends, or repeals a development regulation, it must first hold a public hearing to solicit public comments. This applies to zoning, subdivision ordinances, housing codes, and any other development regulation. The requirement for a hearing on pending legislative decisions has been a feature of North Carolina statutes since the initial authorization to adopt zoning was granted to the state’s cities in 1923.
G.S. 160D-601(a) requires that notice of the hearing be published in a newspaper. This requirement applies to all development regulations. The notice must be published twice, with the first notice appearing at least 10 but not more than 25 days prior to the hearing (the date of publication is not included in this calculation, but the day of the hearing is). A few local governments have been given legislative authorization to substitute electronic notice for these published notices.
Notice of the hearing must also be sent by certified mail to the base commander if the proposed amendment affects permitted uses, major subdivisions, or tall structures within five miles of a military base. G.S. 160D-601(b). This mailing must also be done in the 10 to 25 day window prior to the date of the hearing.
If the ordinance amendment is a rezoning – an amendment of the zoning map – there are additional notice requirements mandated. G.S. 160D-602.
First, notice of the hearing must be mailed to the owner of each affected property and the owners of all abutting properties. First-class mail is required for this notice. For purposes of this mailed notice, “abutting properties” include those separated from the property subject to the proposed rezoning by a street, railroad, or other transportation corridor. It is fairly common for local ordinances to extend mailed notice to all those owning property within a set distance, such as within 100 feet, not just abutting owners. The mailed notice must be deposited in the mail at least 10 but not more than 25 days prior to the hearing.
Second, a sign notifying the public of the hearing must be posted on the site affected or the adjacent street right of way. The sign must be posed in the same 10 to 25 day window required for the mailed notice.
Also, notice of the hearing must be sent by certified mail to the base commander for any rezoning of land located within five miles of a military base.
These statutory notice requirements are summarized by the table below:
|Type of Action||Type of Notice||Recipient||Timing|
|Staff Determination||Personal service, email, or mail;
Posting by owner (optional)
|Hearing on Quasi-judicial Decision||Mail;
Abutting property owners
|10 to 25 days prior to hearing|
|Quasi-judicial Decision||File with clerk;
Personal service, email, or mail
Others making written request prior to effective date
|Within a reasonable time of decision|
|Hearing on Ordinance Text Amendment||Newspaper;
Certified mail if near military base
|10 to 25 days prior to hearing|
|Hearing on Rezoning||Newspaper;
Certified mail if near military base
Abutting property owners;
|10 to 25 days prior to hearing|
Consequences of Failure to Provide Notice
All of the state statutory requirements noted above must be strictly followed. Any additional requirements included in local ordinances must also be strictly followed. The courts have held that these notice requirements are a vital part of land development regulations, providing essential notice to property owners, neighbors, and citizens as to proposed decisions. An ordinance amendment made without observing the notice requirements will be invalidated if challenged in court.
The notices required for final decisions that have been made are critical for initiating appeal times, as well as for providing essential information to those affected by the actions taken. Failure to provide notice could be a basis for allowing a challenge beyond the time provided in the statutes.