Post on 26-Dec-2015
Planning TrainingFebruary 26, 2010
Asheville, NC
Bill Duston, AICP
Centralina COG
Charlotte, NC
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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
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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
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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
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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
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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?
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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.
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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?
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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.
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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.
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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
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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?
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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
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Clarity
Land Use Ordinances: The Three C’s
Conformity
Consistency
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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
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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!
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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
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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?
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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”
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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
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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
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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
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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
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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?
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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
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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?
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“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
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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
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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
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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
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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
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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
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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
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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
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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!
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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?
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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.
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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”
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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
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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
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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
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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
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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
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