Planning TrainingFebruary 26, 2010

Asheville, NC

Bill Duston, AICP

Centralina COG

Charlotte, NC

1

TOPICS TO BE DISCUSSED

Roles/relationships of Governing board/pb/staff

Extraterritorial Jurisdiction (ETJ)

Composition of Planning Board

Decisions: Administrative, Legislative and Quasi-judicial

Codes: Zoning, Subdivision, UDO

Land use/Comprehensive Plans

Permits: Zoning, Building, C/O

2

TOPICS TO BE DISCUSSED

Variances

Conditional Use Permits/Conditional Use Zoning/Conditional Zoning

Conflicts of Interest

Rules of Procedure

Use of Staff Attorney

NC Open Meetings Law

Vested Rights

Other issues On Your Mind

3

Issues to Consider

Discussion will be based on NC General Statutes and applicable Case Law

Your community may have special legislation which differs

If NC General Statutes do not work for your community, consider appropriate local legislation

4

THE ROLE OF THE GOVERNING BOARD

ALWAYS…Adopts and Amends Land Use (Zoning/Subdivision/UDO) Ordinance

ALWAYS…Appoints Members to the Planning Board and Board of Adjustment

ALWAYS…Adopts/ Amends Land Use Plan

SOMETIMES…Approves Special/Conditional Use Permits

SOMETIMES… Approve subdivision plats

NEVER…Issues Variances

NEVER…Decides Appeals to Administrator’s Decisions

5

THE ROLE OF THE PLANNING BOARD GS 160A-361 (cities) GS 153A-344 (counties)- must have “planning board” before a local government may exercise its zoning authority.

GS 160A-387 and 153A- 344 require all Zoning Ordinance amendments be submitted to PB for review and recommendation. PB has 30+ days to make recommendation. Case goes to governing board if no recommendation made.

How many days in your community? Is number specified?

6

THE ROLE OF THE PLANNING BOARDPlanning Board generally serves as advisor to the elected officials.

Rezonings (MANDATED)

Conditional use permits (Let’s discuss)

Ordinance text changes (MANDATED),

Subdivision plats Review/Approval

NOTE: Some ordinances allow the PB to APPROVE certain items other than zoning recommendations. Duties decided by governing board.

7

THE ROLE OF STAFF Administer Ordinances

Inform General Public/Answer Questions

Issue Permits

Give Staff Reports

Give Staff Recommendations… If Asked

WHAT ARE STAFF’S ROLE/EXPECTATIONS IN YOUR COMMUNITY?

8

EXTRATERRITORIAL JURISDICTION (ETJ)

Municipalities w/zoning MAY extend Their Land Use Regulations under certain circumstances (per G.S. 160A-360) to a limited area (1, 2, or 3 miles, depending on size) immediately outside their corporate limits

Cities May Have to get BOC Approval for Establishing or expanding ETJ

A City may relinquish some/all of its ETJ

If a city annexes, its ETJ does not automatically expand If city relinquishes ETJ, is it

automatically zoned by County? 9

EXTRATERRITORIAL JURISDICTION (ETJ)

Make sure you record your ETJ Ordinance with the Register of Deeds

ETJ Boundaries need to be readily identifiable on the ground. No circles, squares, etc.

10

WHO IS ON THE PLANNING BOARD? HOW DO YOU GET APPOINTED?

GS 160A-361 and 153A- 321 state that the PB must have at least 3 persons…5 or 7 are most common. Appointed by governing board.

PB can have alternate members to serve in absence of a regular member

There must be proportional membership from the ETJ on a City PB (and BOA)

City members appointed by city governing board; ETJ members appointed by County …but City can make recommendations to County on County appointments.

11

TYPES OF DECISIONS: ADMINISTRATIVE Made by the zoning administrator or planner based on clearly defined factual standards (usually found in the zoning, subdivision or land use ordinance), or as otherwise provided in code.

Example: Signing off on a zoning permit

12

TYPES OF DECISIONS: LEGISLATIVE

Made by the governing board

Can include rezonings of property and text changes

requires simple majority vote

PB must be given an opportunity to advise governing board on zoning changes

With exception of Conditional Zoning, no strings attached.

Has your Board ever attached conditions to legislative decisions?

13

TYPES OF DECISIONS: QUASI-JUDICIAL Decision based on sworn testimony presented at public hearing…NOT ON HEARSAY

Contact made outside the hearing (ex-parte) must be avoided. If contact made, should be disclosed at PH

BOA (but not governing board) decisions require more than a simple majority (4/5 majority).

Examples: Variances (BOA); special or conditional use permits (governing board, BOA or PB)

THINK AND ACT LIKE JUDGE AND JURY

14

Clarity

Land Use Ordinances: The Three C’s

Conformity

Consistency

15

Allowed Uses

Density/Intensity of Development Signage

Landscaping

Off-street parking

Adult Entertainment

THE ZONING ORDINANCE (Code)

NOTE: No two ZO’s are alike. State does not mandate conformity nor dictate content

EMERGING TREND: MULTI-JURISDICTIONAL OVERLAY DISTRICTS

16

Zoning ordinances consist of text and maps

THE ZONING ORDINANCE

All parcels in cities with zoning must be zoned; not all of County must be zoned (but If You Zone, an area must be 640+ acres/10+ tracts)

Newly annexed parcels must be zoned by annexing city within 60 days of effective date of annexation…or else no zoning on parcels!

17

THE SUBDIVISION ORDINANCE

SUBDIVISION: “Division of tract…into two or more lots, building sites or other divisions when any one or more of those divisions is created for the purpose of sale or building development…and shall include all divisions of land involving the dedication of a new street…”

Exceptions: 1. Combination of previously recorded lots…# of lots not

increased; all lots conforming

2. All parcels 10+ acres and no street ROW

3. Public acquisition of land strips for road/transit corridors

4. Tract 0-2 acres; up to 3 lots; no street ROW

18

CONTENT OF SUBDIVISION ORDINANCE

Plat prepared, approved and recorded whenever any subdivision of land takes place

The dedication or reservation of rights-of-way or easements

Coordination of streets and other public facilities

Guarantees to ensure improvements are made

Either a dedication of land for recreation purposes or a fee in lieu of the land

What standards are addressed in your code? When was it updated?

19

THE SUBDIVISION ORDINANCE

Sketch Plan… Initial Layout of Subdivision…Is All OK w/local Code?

Preliminary Plat… Layout and Design of Subdivision. If approved, can start “digging dirt”

Final Plat …Improvements Put in or Bonded and Lots can be recorded and sold

Who approves which plats? PB? Governing Board? TRC?

EMERGING TREND: PLATS APPROVED BY TRC OR STAFF…NOT GOVERNING BOARD

NCGS ALLOWS FOR EXPEDITED REVIEW OF “SPECIFIC CLASSES OF SUBDIVISIONS”

20

THE SUBDIVISION ORDINANCENCGS 160A-371 and 153A-330 amended in 2005

Objective Identified Standards… If all are met, plat must be approved

Discretionary standards… Guiding standards must be included in Code; Quasi-judicial process must be followed

How are Plats approved in your Community

21

THE LAND USE PLAN

The Land Use Plan Should Address:

What the community is now.

Where it wants to go,

How it can get there,

What are the next steps…

The LUP offers guidance for community leaders when making land use decisions.

all zoning decisions must reference conformity with the LUP and other Officially adopted plans that are applicable

22

THE ZONING PERMIT

• In most communities, Zoning Permit required before applicant receives building permit and begins construction.

• Zoning Permit ensures compliance with all LOCAL regulations

• In most communities: Zoning Permit first, then Building permit

Issued by the Administrator, not the governing board

23

THE BUILDING PERMIT

• Ensures conformity with all applicable Building codes (not usually found in Zoning Codes)

• In Most communities, building inspection conducted by County

• Trend: Cities taking over building code inspections

More Later…

Valid Building Permit= Vested Right

24

CERTIFICATE OF OCCUPANCY

Issued after construction, but before occupancy

Verifies that building meets all State building codes and all local land use regulations

Prior to C/O being issued, local gov’t should make sure building built to LOCAL zoning standards

How are C/O’s Handled in Your Community?

25

CONDITIONAL (SPECIAL) USE PERMIT

A land use that is allowed only after specific findings are made, following a quasi-judicial hearing

Usually approved by governing board… can be approved by the PB or BOA if your code calls for it!

Decision made based on evidence gathered at the hearing…NOT HEARSAY!

Common examples… Auto Salvage Yard or large shopping center

26

CONDITIONAL (SPECIAL) USE PERMIT

Where in your Code are your conditional uses listed… or hidden?

1. Within each district?

2. In use table?

3. Throughout the Code?

27

“For any development approval that is current and valid at any point during the period beginning January 1, 2008, and ending December 31, 2010, the running of the period of the development approval and any associated vested right under G.S. 153A-344.1or G.S. 160A-385.1 is suspended during the period beginning January 1, 2008, and ending December 31, 2010.”

Permit Extension Act of 2009 S.L. 2009-406, Effective 8/5/09

28

Affects (perhaps retroactively):

Building Permits

Plat approvals

Site Specific/Phased Development Plans

Special/Conditional Use Permits

Development agreements…and other approvals

Permit Extension Act of 2009

Source: Kim Hubbard, NC League of Municipalities, September 15, 2009

29

CONDITIONAL USE (CD) ZONING

Two-step process: (1) Rezoning to a CD district (2) issuance of a conditional use permit

Can be one public hearing for both steps.

PB required to make a recommendation on rezoning

Conditions can be attached to the CUP so long as they are mutually agreeable by community, applicant; fair and reasonable; related to impact of development… more on this on next slide

Hearing for CUP Must be Q-J

Only what is approved in the CUP can be built on the property

30

Imposing Conditions on Approval

Ordinance must provide authority and set process to impose conditions

Ordinance must include standards the conditions must address

Substantial evidence in the record must support conditions imposed

Conditions that impose an exaction must be reasonably related and proportionate to impact of development

SOURCE: David Owens, UNC-CH School of Government, January 13, 2010 SOG Blog

31

CONDITIONAL ZONING

A new zoning district is created for each approved application.

Legislative process rather than quasi-judicial (with no findings of fact).

One-step process…No CU Permit Issued

Fair, reasonable and mutually agreed upon conditions allowed.

Ex-parte communication is allowed.

CD zoning can be used only if contained in your code

32

CONDITIONAL ZONING

Relatively New in North Carolina (2005)

Most communities solicit public comment into process through mandated public forums…How Many? Who Organizes? Does Staff Attend? What is their Role?

How much (if any) should conditions deviate from the general code standards?

SOME COMMUNITIES SPECIFICALLY ALLOW DEVIATIONS FROM GENERAL STANDARDS

33

Third Party Zoning Changes

Changes to NCGS 160A-284 and 153A-343 made in 2009 Legislative Session (S.L. 2009-178)

If third party zoning request made (other than by city or county) third party must certify that property owner actually received public hearing notice and application

Burden of providing actual notice is on third party

Local govt’s must establish process that verifies that notice was properly delivered

SOURCE: 2009 NC Planning and Development-Related Legislation, Richard Ducker and David Owens

34

VARIANCESAllows Relief, on a case-by-case basis, from terms of

the Zoning Ordinance

Approved by the Board of Adjustment…not the Governing Board

Decision based on evidence provided at a public hearing

Should be very difficult to obtain.

Use variances in NC are illegal

Common example is a setback reduction.

Variances run with the land, not property owner

35

CONFLICTS OF INTEREST- ELECTED OFFICIALS/ PLANNING BOARDS

NCGS 160A-381(d) and 153A-381(d)

“An {elected official/planning board member} shall not vote/make a recommendation on any zoning map or text amendments where the outcome of the matter … is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member.”

When in doubt…best to be safe rather than sorry!

36

RULES OF PROCEDURE Role of Chair, Vice-Chair; Terms of Office

Meeting time, date and location; Agendas

How votes are taken; Voting Abstentions

How you handle a conflict of interest

Absenteeism

Special Meetings

BUT…MAKE SURE THERE ARE NO CONFLICTS WITH CODE

Do you have a set of rules? Do you Use them?

37

STAFF ATTORNEY

Attendance depends on the wishes of the governing board

Always good to have one if a q/j decision being made

When present, the attorney will advise on the legality of matters and on procedural issues.

Don’t ask…because he/she WON’T TELL YOU HOW TO VOTE.

38

OPEN MEETINGS- GS 143-318.9-18

• Follow that law! Always!!!

• Public decisions should be made in a formal environment, with adequate public notification and with all discussion out in the open.

Closed meetings regarding land use issues are the EXCEPTION, not the rule. Virtually All Meetings Should Be “Open”

39

VESTED RIGHTS

Common Law Vested Rights

Substantial expenditures

Expenditures made in good faith

Expenditures made on valid governmental approval, if it were required (e.g., building permit, CUP permit, preliminary plat, c/o)

Owner would be harmed without vested rights

SOURCE: Land Use Law in North Carolina, David Owens, 2006

40

VESTED RIGHTS

Statutory Vested Rights

NCGS 153A-344(b) and 160A-385(b)

Valid Building Permit

NCGS 153A-344.1 and 160A-385.1

Site Specific/Phased Development Plan

Valid for 2-5 years

SOURCE: Land Use Law in North Carolina, David Owens, 2006

41

VESTED RIGHTS

DEVELOPMENT AGREEMENT

Use is optional by community; any agreement adopted as ordinance w/ph

Tract 25+ acres

Maximum Length of vesting= 20 years

Excludes land that can’t be developed under local, state or federal law

SOURCE:, David Owens, Planning Law Session, Mooresville, NC, 12/4/2009

42

VESTED RIGHTS

DEVELOPMENT AGREEMENT

Agreement must include detailed development plan; development schedule; public facility plan; and land dedicated for public uses and protected environmental areas

SOG 2008-09 Survey:

1. 62% of DA’s are for areas of 100+acres

2. 40% are for 5 years of less

SOURCE: David Owens, Planning Law Session, Mooresville, NC, 12/4/2009

43

Questions? Comments? Bill Duston, AICP

Centralina Council of Governments

P.O. Box 35008

Charlotte, NC 28235

704 348-2709

bduston@centralina.org DON’T

FORGET TO REGISTER FOR AICP CM CREDITS

44