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What is Chapter 160D?

A new state law passed in 2019 will change local government planning processes statewide.

In May 2019, the N.C. General Assembly passed Senate Bill 355 to combine city and county development statutes and “modernize” local ordinances. It was signed into law by Gov. Roy Cooper in July 2019.

Local governments have to change ordinances to comply with the law by July 1 this year. By July 2022, cities and counties statewide also are required to have comprehensive plans or else zoning ordinances cannot be enforced, as required in 160D.

The state legislature proposed similar legislation in April 2015 and March 2017. But it was in 2019 that it finally passed. The UNC School of Government states the bill was proposed by the N.C. Bar Association, and that the final version passed was a combination of that bill and another proposed by the N.C. Home Builders Association.

Chapter 160D replaces the former 160A that applied to cities and towns and 153A for counties. They were much more detailed, the original writing for which date to 1905 and were largely unchanged over the years, with additions made instead of revisions.

160D in full can be read here: https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/ByChapter/Chapter_160d.html

The UNC School of Government microsite is here: https://www.sog.unc.edu/resources/microsites/planning-and-development-regulation/ch-160d-2019#!#resourcesTraining

An article in The National Law Review is here: https://www.natlawreview.com/article/ncgs-chapter-160d-new-law-land-planning-and-development-regulations-highlights


Highlights:

-Development approvals run with the land.

-Third-party down zonings are prohibited and must have the approval of the owner of the property.  

-Vested rights: Amendments in land development regulations are not applicable or enforceable without the written consent of the owner if a development permit application has been submitted and issued.

The National Law Review article notes the change in conditional use zoning: “Conditional Use Zoning” is replaced with “Conditional Zoning” – a minor grammatical but major procedural change.” That is, it’s now a legislative decision, taking it out of quasi-judicial hearings.

“Conditional Use Zoning” is when a rezoning (legislative decision) and conditional use permit (quasi-judicial decision) were required in conjunction with one another to allow for zoning amendments with site-specific conditions.

A rezoning with conditions is now “Conditional Zoning”, a solely legislative decision. Any property with a prior “Conditional Use Zoning” approval is now converted to a “Conditional Zoning”.

-The National Law Review article also states 160D authorizes minor modifications to development approvals to be administratively approved, with local guidelines on what such modifications are.

-Makes it easier for governments to demolish old buildings that have been abandoned – two years for nonresidential buildings. Amazingly, the law orders demolition both whether it costs less to repair the building or costs more.

1. If the cost to repair the nonresidential building or structure to bring it into compliance with the minimum standards is less than or equal to fifty percent (50%) of its then current value, the ordinance shall require that the owner either repair or demolish and remove the building or structure within 90 days.

2. If the cost to repair the nonresidential building or structure to bring it into compliance with the minimum standards exceeds fifty percent (50%) of its then current value, the ordinance shall require the owner to demolish and remove the building or structure within 90 days.

– 160D overall is much less detailed than the old laws, 160A and 153A. Compare the language of 160D with the old law on vested rights:

The General Assembly recognizes that local government approval of development typically follows significant investment in site evaluation, planning, development costs, consultant fees, and related expenses. The General Assembly finds that it is necessary and desirable to provide for the establishment of certain vested rights in order to ensure reasonable certainty, stability, and fairness in the development regulation process, to secure the reasonable expectations of landowners, and to foster cooperation between the public and private sectors in land-use planning and development regulation. The provisions of this section and G.S. 160D-108.1 strike an appropriate balance between private expectations and the public interest.

-160D

The General Assembly finds and declares that it is necessary and desirable, as a matter of public policy, to provide for the establishment of certain vested rights in order to ensure reasonable certainty, stability, and fairness in the land-use planning process, secure the reasonable expectations of landowners, and foster cooperation between the public and private sectors in the area of land-use planning. Furthermore, the General Assembly recognizes that city approval of land-use development typically follows significant landowner investment in site evaluation, planning, development costs, consultant fees, and related expenses.

The ability of a landowner to obtain a vested right after city approval of a site specific development plan or a phased development plan will preserve the prerogatives and authority of local elected officials with respect to land-use matters. There will be ample opportunities for public participation and the public interest will be served. These provisions will strike an appropriate balance between private expectations and the public interest, while scrupulously protecting the public health, safety, and welfare.

-160A

Reporting on this massive overhaul is just starting to percolate in local newspapers, and so far, the articles show the changes being made differ widely from place to place.

In Dare County, The Coastland Times has a thorough report with the county planning director noting changes like minimum square footage for structures cannot be set under the new law, bona fide farms must be included in the new regulations whereas they are exempt under local law, and changes to the Board of Adjustment in that the hearings must be evidentiary.

In Franklin County, The Franklin Times reports that county planning is set to “update” zoning, that is, rezone 16,000 county properties in part to comply with 160D.

The Charlotte Business Journal reports confusion from the city council on the deadlines in 160D and calls for delaying adoption on a new comprehensive plan.

Overall, 160D is a gutting of previous planning processes that were working, and has the makings of a statewide disaster.  

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