Procedures for Legislative Development Decisions

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Adam Lovelady

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A property owner requested a rezoning. The town needs to adopt an update to the subdivision ordinance. The planning board has recommended an amendment to the comprehensive plan. What are the requirements for notice, hearing, and adoption of these amendments? Read on to find out.

This blog walks through the procedures applicable to legislative decisions for development regulations.

Note that this discussion is focused on legislative development decisions. For an explanation of the types of development decisions, check out this blog.

Overview

When local governing boards adopt or change a development regulation, they should expect scrutiny—even controversy. Packed public hearings, numerous phone calls, letters, visits, and high emotions will be standard fare. Such public response is understandable—a rezoning can, for example, affect many properties and lives. State law requires special procedures to be followed whenever these ordinances are adopted, amended, or repealed. These procedures help ensure that the local government follows a careful, deliberate decision-making process with broad notice and opportunity for public participation.

The procedures for taking legislative action for a development regulation are outlined in Article 6 of Chapter 160D. These procedures apply to adoption, amendment, and repeal of zoning ordinances, subdivision ordinances, comprehensive and land-use plans, minimum housing codes, and “any other ordinance that substantially affects land use and development” (G.S. 160D-101). Additionally, for amendments to the zoning map—rezonings—there are extra procedural requirements. The state law sets the minimal levels of notice, hearing, and process, but special legislation or local rules may add more procedures to these actions.

While this blog is focused on procedural aspects, local government officials are wise to carefully consider the substantive policy implications of the proposed ordinance changes. Is the change consistent with the adopted plan for the area? What impact will it have on public services such as roads, schools, police, fire, water, and sewer? What impact will it have on the property owners and the neighbors? What policy precedent does it set for future requests for amendments?

Initiation of Legislative Change

The local government has broad authority for adopting and amending its own ordinances, as long as proper procedures are followed. The governing board may direct staff to draft an ordinance amendment for a particular policy based on board priorities, recommendation from the planning board, in response to popular request, or otherwise. Ordinance amendments may range from major policy shifts to clean-up of basic clerical errors in the ordinance text.

As emphasized in the recent North Carolina Supreme Court case, Cheryl Lloyd Humphrey Land Investment Company, LLC v. Resco Products, Inc., 377 N.C. 384 (2021), a citizen has the right to petition elected officials for a change to the laws and regulations. When it comes to local development regulations, property owners commonly seek legislative change for the rules applicable to their property. Many local ordinances and/or procedures outline when and how an individual may request a rezoning or text amendment. Indeed, G.S. 160D-602 specifically authorizes that the “ordinance shall provide for the manner in which zoning regulations and the boundaries of zoning districts are to be determined, established, and enforced, and from time to time amended, supplemented, or changed . . . .” A local government must have a process to allow request for rezoning and other legislative change, but there is no obligation on the governing board to adopt the proposed change. They have discretion to approve the proposal or not. Some local governments impose some screening of petitions to determine which ones to send through the full review process and which ones are rejected at an earlier phase. Without a local policy or ordinance to screen petitions for legislative action, petitions likely need to follow the statutory process.

State law sets limits on a third-party request for a down-zoning. A down-zoning is defined as an ordinance that decreases the development density or reduces the permitted uses on a piece of property. Pursuant to G.S. 160D-601, a third-party may not request a down-zoning without consent from all owners of affected property. In other words, Neighbor A cannot ask the city to down-zone Neighbor B’s property without Neighbor B’s consent. Note, though, that this limitation does not apply to a down-zoning initiated by the local government. Down-zoning is defined to include a decrease in the density or a decrease in the permitted uses allowed on the property.

As authorized under G.S. 160D-402, a local government may charge a fee to any person proposing an ordinance amendment. The amount of the fee must be reasonable and must not exceed the administrative costs to the government, such as advertising the hearing, staff review, printing, and other costs of considering the request.

Because a rezoning involves so much time, effort, and money, most local zoning ordinances require a waiting period before a second rezoning proposal for that land can be considered. For example, a local zoning ordinance may provide that if a rezoning proposal is denied, no other rezonings will be considered for that property for a period of six months, a year, or even two years. This helps prevent the waste of public and private resources spent on repetitious reviews of the same project. While state law does not impose a mandatory waiting period, if the zoning ordinance includes a mandatory waiting period, it is binding and must be observed. These waiting periods for legislative zoning decisions do not apply to quasi-judicial decisions. In the absence of changed circumstances, a special use permit that has been denied may not be resubmitted no matter how much time has passed

Staff Review

Generally, there will be a level of staff review of a proposed legislative change. Depending on the size and complexity of an amendment and a jurisdiction, that review may range from general comment and recommendation to detailed technical analysis of the implications. Rezonings in particular warrant careful analysis by the planning and other technical staff. Local government procedures and policies may specify the types and level of staff analysis expected for proposed legislative changes.

Planning Board Review and Comment

Proposed adoption of and amendments to the zoning ordinance (including map amendments) must be submitted to the planning board for review and comment (G.S. 160D-604). The proposed amendment must be referred to the planning board for at least 30 days, but after 30 days, the governing board may act on the proposed amendment even without a recommendation from the planning board. Amendments to other development regulations may be submitted to the planning board as well. If the local ordinance calls for planning board review of other development regulations, that will become a required procedure step for amendment of those other regulations.

“[T]he planning board shall advise and comment [in writing] on whether the proposed action is consistent with any comprehensive plan or land use plan that has been adopted and any other officially adopted plan that is applicable” (G.S. 160D-604). The planning board recommendation is not binding upon the governing board, and a planning board determination that an amendment is inconsistent with the comprehensive or land use plan does not prevent the governing board from considering and approving the amendment. In many cases, the planning board statement may be aligned with and parallel to the governing board statements of plan consistency and reasonableness discussed below.

State law does not specify requirements for notice and hearing for the planning board review. The planning board certainly must hold a public meeting with standard notice. And, for many communities, the planning board follows the same notice and legislative hearing procedures that are required for the governing board.

Beyond the standard review and comment, special legislation allows planning boards in a few North Carolina communities to make final decisions on rezonings. Additionally, some zoning ordinances provide for a joint hearing by the planning board and the governing board.

Notice

Published Notice for All Legislative Actions. For any legislative action relating to development regulations, there must be two published notices of the hearing. The notice must be published in a newspaper of general circulation for the area. The first notice must be published between 10 and 25 days prior to the hearing. The second notice must be published in a separate calendar week. According to the statute, G.S. 160D-601, when calculating the time of publication, “the day of publication is not to be included but the day of the hearing shall be included.”

The content of the published notice should include a brief description of the subject of the hearing; the date, time, and location of the hearing; and a contact source for more detailed information. The full text of an amendment need not be included, but the explanation of the action being considered should have enough detail to allow an interested person to understand the nature of the proposal.

Posted Notice for Rezonings. In addition to the published notice required for all legislative actions generally, for zoning map amendments (rezonings) there must be posted notice and mailed notice. G.S. 160D-602 requires that for rezoning hearings “the local government shall prominently post a notice of the hearing on the site proposed for the amendment or on an adjacent public street or highway right-of-way.” The sign must be posted at least 10 but not more than 25 days prior to the hearing. When a rezoning includes many parcels, the local government is not required to post a sign on every parcel, but must post sufficient signs to provide reasonable notice to interested individuals.

Each local government has discretion as to the number, size, and content of the signs as long as the posting provides reasonable notice to interested persons. Wording such as “Zoning Hearing Notice” is sufficient, along with contact information to obtain details about the hearing or proposed action (such as a phone number, email, and/or website for the local planning office).

Mailed Notice for Rezonings. Notice of the hearing for a rezoning must be mailed by first-class mail to the owners of the land affected by the rezoning and the owners of property abutting the property subject to the rezoning. This notice must be mailed to the last address listed for the owner on the county tax records and must be deposited in the mail at least 10 but not more than 25 days prior to the hearing. For purposes of mailed notice, a property is considered abutting even if it is separated by a street, railroad, or other transportation corridor.

The mailing should notify the recipients of the proposed rezoning and the time and place of the hearing. A common practice is to mail the same notice used for the published notice. The city or county staff should maintain a copy of the mailing, a list of whom it went to, and a certification by the person making the mailing as to when it was done. The mailing is conclusively presumed to be valid if that certification is made unless there is a showing of fraud.

For large-scale rezonings, an expanded published notice may suffice for mailed notice. If a rezoning includes fifty or more properties owned by at least fifty different owners, then the local government may choose to publish notice through a half-page newspaper advertisement. This half-page ad is sufficient for notice to owners of property within the circulation area of the newspaper. Owners outside of the circulation area must still receive mailed notice.

Notice for Military Bases. Legislative changes to land uses near military bases require additional notice. G.S. 160D-601 requires that of an action will change the zoning map or permitted uses within five miles of a military base, then the local government must provide notice to the base commander. The notice must be sent by certified mail, return receipt requested, not less than 10 days nor more than 25 days before the date fixed for the hearing. “[T]he governing board of the local government shall take the comments and analysis [from the base commander] into consideration before making a final determination on the ordinance.”

Optional Additional Notice. As outlined at G.S. 160D-602, a local ordinance may require the person seeking a rezoning to communicate with neighboring property owners and residents and to document such communications. Moreover, the local ordinance and rules may set additional notice requirements such as mailed notice for owners of property within 500 feet of the subject property (not just abutting parcels) or mailed notice to residents (not just owners). The state laws set the minimum notice, but if local rules add more requirements, the local government must adhere to those requirements.

Citizen Comments and Petitions

G.S. 160D-603 states that residents and property owners may submit statements to be provided to the governing board. If the individual submits to the clerk to the board a written statement about a zoning action at least two days prior to the proposed vote, then the clerk shall deliver the statement to the governing board.

The protest petition is no longer valid in North Carolina. Prior law authorized neighbors to organize in opposition to a proposal and force a supermajority vote for a rezoning. That authority was repealed in 2015 by Session Law 2015-160.

Conduct of Legislative Hearing

Local governments can use a variety of forums to gather public comment on proposed ordinance amendments. Informal neighborhood meetings, meetings with interested groups, planning board hearings, and formal public hearings by the governing board are all frequently used to solicit comments. Most such meetings are optional, and it is up to each local government to decide which kind is appropriate.

State law does set a minimum threshold—the governing board must hold at least one formal legislative (or public) hearing before taking a legislative action. “Before adopting, amending, or repealing any ordinance or development regulation authorized by this Chapter, the governing board shall hold a legislative hearing.” G.S. 160D-601. A legislative hearing is a hearing to solicit public comment on a proposed legislative decision—these hearings have commonly been referred to as public hearings and, notably, are distinguished from evidentiary hearings.

A formal legislative hearing on proposed amendments is a chance for citizens to make their views known directly to the governing board. Because a legislative hearing is not an evidentiary hearing, there is no need to have sworn testimony. (Evidentiary hearings are required for appeals, variances, and special use permits). In a legislative hearing, citizens are free to offer their personal opinions and views in the hearing and to lobby board members before and after the hearing. The board need not make any formal findings of fact at the conclusion of the hearing, though a written statement briefly setting out the board’s rationale for its decision on any zoning amendment is required as discussed below.

Even with this latitude, it is important that these legislative hearings be conducted fairly. Reasonable rules may be established to limit the number of speakers, the amount of time each speaker is given, and the overall length of the hearing. The governing board is not obligated to allow everyone present to speak. Speakers can also be required to limit their remarks to the subject of the hearing. Local governments should have clear, fair policies on these points and make the policies available to all concerned persons.

Policies beyond time limits for individual speakers should probably include procedures for the selection of speakers. For example, many cities and counties have a sign-up sheet available prior to the start of the hearing and take speakers in the order of sign-up. Some provision also needs to be made to assure that proponents of one side of a controversial issue are not allowed to monopolize the hearing to the exclusion of opposing points of view. Ideally these policies should be adopted and distributed well before a controversial hearing occurs, but at a minimum they should be announced and explained at the outset of the hearing.

A copy of the proposed amendment must be available for public review at the time the notice of hearing is provided. Typically, the proposed amendment is posted on the local government’s website and a paper copy is made available at the government’s office for public review.

Governing Board Statement

For an amendment to the zoning ordinance (a text amendment or rezoning), the governing board must approve a statement describing whether that action is consistent of inconsistent with an adopted plan (G.S. 160D-605). While the statement need not be long, it does need to briefly describe how the action is or is not consistent.

The governing board is not bound by the comprehensive or land use plan—it may adopt an amendment that is inconsistent with the applicable plan. But, if the governing board adopts an amendment that is inconsistent with the plan, the amendment has the effect of amending the future land-use map (in such cases no additional action or application may be required for land-use map amendment).

For zoning map amendments, the governing board must also adopt a statement of reasonableness. This statement is a procedural step to guard against spot zoning challenges. As described in G.S. 160D-605, the board may consider, among other factors,

(i) the size, physical conditions, and other attributes of the area proposed to be rezoned,

(ii) the benefits and detriments to the landowners, the neighbors, and the surrounding community,

(iii) the relationship between the current actual and permissible development on the tract and adjoining areas and the development that would be permissible under the proposed amendment;

(iv) why the action taken is in the public interest; and

(v) any changed conditions warranting the amendment.

The statement of reasonableness and the statement of plan consistency may be combined and approved as a single statement. Additionally, the statement may be adopted in the same motion as the zoning amendment or separately.

For more on planning requirements and consistency statements, check out this blog on Comprehensive Plan Requirements and this 160D Guidance Document on Plan Consistency Statements.

Vote and Adoption

Adoption, amendment, and repeal of a development regulation under Chapter 160D must be by ordinance. 160D-601. Adoption of a development ordinance requires the simple majority of the board members not excused from voting. G.S. 153A-45; G.S. 160A-75.

The old requirement for municipal boards to have a super-majority to pass a zoning amendment on the date of introduction was repealed with the adoption of Chapter 160D. Additionally, as noted above, authority for the protest petition was repealed in 2015. That option for formal objection and requirement of a three-fourths majority is no more. So, unless altered be local legislation, a legislative action merely needs a simple majority vote.

Continuation and Re-notice

For some matters, one meeting is not enough. Public comments may run long, board deliberation may be contentious, or details may need additional research and input. The local government has options for such scenarios. If the public has provided sufficient input, the governing board may close the legislative hearing, and hold deliberation and vote at a subsequent hearing. There is no need for additional notice.

If there is need to allow for additional public comment then the legislative hearing may be continued to another meeting. If there is no substantial change to the proposed amendment, then a hearing may be continued without advertising again. In these instances, the date, time, and place of the continuation of the hearing must be announced prior to closing the initial hearing.

If there are substantial changes in the zoning amendment to be considered, a new hearing is required. The additional hearing is subject to the same notice requirements as the initial hearing. But, if there is a modest change to a proposal, no additional notice or hearing is needed. A change to a proposal is not considered “substantially different” if the change is favorable to those who requested that change, if the action taken is of the same fundamental character as that proposed in the original public notice, and if the notice indicated that changes might be made after public comments are heard. As a general rule, amending the proposal to rezone less land or to allow a similar but less significant change in its uses will not require a new hearing. If a large area is proposed for rezoning and individual properties are shifted from one zoning district to another between the notice of the hearing and the hearing, a new notice and hearing is required even if the changes were made in response to landowner requests.

Conclusion

This blog offers a summary of the notice and procedural requirements for a legislative development decision. For details on what the governing board may and may not consider for these legislative decisions, take a look at future blogs on the Good Considerations and the Impermissible Considerations for legislative development decisions.

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