planning law session david owens mooresville, n.c. december 4, 2009

Planning Law Session

David Owens

Mooresville, N.C.

December 4, 2009

Topics for Discussion

• Implications of Key 2009 NC Legislation• S 831 – Permit Extensions• S 44 – Judicial Review of Quasi-judicial

Decisions

• Development Agreements

• Board Voting Issues

• Conditions on Land Use Approvals

2009 Legislation

Link to bulletin onlineat:

http://www.sog.unc.edu/organizations/planning/iogresources/bandb.html

2009 Legislation: S. 831

S. 831 (S.L. 2009-406)

• Effective August 4, 2009

• Suspends “running of the period of development approval”

• Applies to period 1/1/2008 to 12/31/2010

S. 831 (S.L. 2009-406)

• “Development” broadly defined:– Land subdivision– Site preparation– Construction, reconstruction, alteration,

enlargement, relocation of structures– Use, change of use, extension of use of land

or structure

• “Development approvals” broadly defined:– “regardless of form of approval”

S. 831 (S.L. 2009-406)

• “Development approvals” include:– Sketch plans, preliminary and final plats– Site specific and phased development plans– Development agreements– Building permits– Development permits– Various state permits (erosion/sedimentation,

CAMA, water and wastewater, nondischarge, water and air quality)

S. 831 (S.L. 2009-406)

• Applies if approval was valid at any time during the period

• Maximum time remaining on approval at any time during the period starts to run again on 1/1/2011

S. 831 (S.L. 2009-406)

• Likely applies to time-specific deadlines within an approval

• Conditions/obligations also extended

• Does not affect prior ability to revoke or modify

• Does not affect time-based definitions within ordinance (e.g., “temporary use”)

S. 831 (S.L. 2009-406)

• Utility allocations (H 1490 modification)– Expired utility allocation not reactivated if

• Prior allocation was reallocated• Insufficient capacity to accommodate both

– Gets first priority when capacity available

2009 Legislation: S. 44

Types of Decisions

Type Example

Legislative Rezoning

Quasi-judicial Variance/SUP/COA

Administrative Notice of Violation

Advisory Recommendation

Types of Decisions

• Categorization is a question of law

• Characterization in ordinance is guide, but not determinative

• Identity of board is not determinative

Quasi-Judicial Decisions

• Definition by courts in N.C. – Includes land use decisions that involve– Fact-finding AND– Application of standards that involve judgment

and discretion

• Typical decisions covered -- Special and conditional use permits, variances, appeals, and interpretations

• Does not apply to rezoning, even if single lot

S. 44 (S.L. 2009-421)

• Codifies standards and process for judicial review of quasi-judicial land use decisions

• Effective for decisions made on or after January 1, 2010

S. 44 (S.L. 2009-421)

• Primarily deals with judicial review – – Form of action for court review– Standing and intervention in appeals– Content of record, transcripts submitted to

court– Scope of court’s review– Options for court decision (affirm, reverse,

remand with instructions)

S. 44 (S.L. 2009-421)

• Clarifies definition – Applicable to site plans if in addition to

specific, objective standards there are “generally stated standards requiring a discretionary decision”

– Applicable to subdivision plats if approval is made by board (other than staff-only committee) and discretionary standards are used

Quasi-judicial Decisions

• Adequate record must be before the board at the time of decision

• Record includes application, supporting documents and exhibits, testimony at hearing (minutes or transcript)

• Substantial, competent, and material evidence in the record is required for each key factual determination

S. 44 (S.L. 2009-421)

• Includes limits on “competent” evidence for making determinations on:– Impact of proposal on property values– Impact of traffic on public safety– Other matters that only expert testimony

would be admissible under rules of evidence

Evidence: Opinion Testimony

– Opinions only from experts, especially on property value and traffic impacts/public safety

– Distinguish factual and opinion testimony– Expert testimony – establish expertise and

foundation for opinion

2009 Legislation: Others

Other 2009 Legislation

• S 1027 – Petitioner certify actual notice to owners for third party rezoning petitions

• S 810 – Unlawful to base land use decision on fact project includes affordable housing

• S 52 – May provide bonuses for energy efficiency

• H 1387 – Solar collectors on all residential

Development Agreements

Development Agreements

Link to report onlineat:

http://www.sog.unc.edu/organizations/planning/iogresources/bandb.html

Prior Vested Rights Law

1. Common law vesting– Substantial expenditures in good faith

reliance on a valid specific approval and detriment without vesting

– Vests phase by phase, not entire project

2. Building permit (1985)—six months

3. Site specific and phased development plans (1990) – two to five years

Impetus for 2005 Legislative Authorization

• Concern with late common law vesting rule

• Particular concern with large-scale projects having lengthy buildout and substantial infrastructure commitments

• Perceived successful use in neighboring states, especially SC

Application of New Laws

• Changes in local ordinances not applicable to project unless: 1. Land owner consent or compensation2. Inaccurate application or threat to public

health, safety, welfare – hearing required3. General ordinance applicable to all property

• If new state or federal laws preclude anticipated development, government may unilaterally modify agreement

Adoption

• Use is optional, not mandatory

• May adopt process and requirements for all agreements or may handle on ad hoc basis

• Each agreement must be adopted as ordinance, with same notice and hearing as zoning amendments

• Adoption is legislative decision

Relation to Existing Regulations

• Must be consistent with ordinances in effect at time of agreement

• Cannot trade agreement for future zoning change

• But, can rezone first and sequentially enter agreement, even at same hearing/meeting as with conditional use district zoning

Land Area

• Limited to large projects – must have no less than 25 developable acres in each agreement

• Exclude land that cannot be developed under local, state, or federal law

Duration

• Maximum length is 20 years, may be less

• Extension allowed, but must be approved as separate agreement

• If jurisdiction of land subject to agreement changes, agreement terminates in eight years from jurisdiction shift or life of agreement, whichever is earlier

Mandatory Contents

• Legal description of land area

• Duration

• Detailed development plan – uses, population density, site plan, building types and design

• Development schedule – no less than 5 year increments

Mandatory Contents

• Public facility plan – transportation, water, sewer, solid waste, schools, parks, drainage, health systems

• Dedication and reservation of land for public uses and protected environmental areas

Mandatory Contents

• List of all other permits required

• All conditions, development standards, mitigation measures

• Lead governmental entity if multiple jurisdictions

Limit on Contents

• New tax or fee not authorized by law

• No expansion of local regulatory authority

• No local commitments not authorized by law

• BUT: Agreement may cover “any other matter not inconsistent with this part” --Opens door to broad negotiation

Post Adoption

• Must be recorded within 14 days – benefits and burdens apply to successors

• Must include annual compliance review by government

• May be amended or cancelled by mutual consent

• Major modifications must go through same process as initial approval

Post Adoption -- Enforcement

• Must provide notice and reasonable time to cure for material breach

• If not cured, government may unilaterally terminate or modify agreement

• Appeals of determination of breach go to the board of adjustment

• Statute otherwise silent on remedies, so needs to be addressed in agreement

Early Experience in NC

• Survey in late 2008-early 2009

• Full report online at SOG site

• About 10% have adopted DA– Same rate for cities/counties– More populous cities more likely to use

(25% of cities over 25,000 population have used)

Early Experience in NC

• Most are for large areas – 62% over 100 acres

• 3/4 are for less than 20 year maximum –40% for 5 years or less

• Most include developer provision of utilities and transportation infrastructure

• Some include government provision of infrastructure

Some Lessons/Conclusions

• Most useful if substantial infrastructure investment and lengthy buildout

• Substantial investment needed by developer and government to produce

• Allows open negotiation, resolution of complex policy/impact issues, provides predictability and certainty over time

Case Studies

• Report includes three brief case studies and copies of the adopted agreements –– Catawba County-Crescent Resources (Key

Harbor)– Chapel Hill-UNC (Carolina North)– Wilmington-Newland (RiverLights)

Voting Issues

Voting Issues -- General

Quorum: Generally a majority of the actual membership of the board (excluding vacancies)

Usual rule: Simple majority of those present and voting

Supermajority sometimes required:– 4/5 for BOA– 3/4 if zoning map amendment protest petition

Voting Issues -- General

Elected boards – For ordinances• Need majority of entire board, not just those present and

voting• Member generally must vote unless excused by majority

of remainder of board • Present and unexcused member who does not vote is

counted as “yes” vote • Excused member’s seat not counted to calculate

majority{Note: Modest differences in city and county statutes on this}

Voting Issues -- General

Appointed boards –

• Above rules not required by statute

• Rules of procedure useful to define quorum, deal with vacancies, address abstentions, process for addressing conflicts of interest, voting by alternate members, etc.

Voting Issues -- General

1. What if quorum is lost mid-way through a meeting?

2. Can absent member send in written vote to be announced at meeting? Give proxy to another member?

3. Can absent member participate electronically (telephone, web cam, etc.)?

Voting Issues – Conflicts of Interest

1. Rezoning petitioner contends county commissioner is biased. Commissioner agrees, but intends to vote anyway. Can he?

2. SUP applicant contends city council member has conflict of interest. Council member disagrees and intends to vote.Can she?

Voting Issues – Valid Protest Petition Filed

1. Five member board, one member absent, vote is 3-1 in favor. Adopted?

2. Five member board, one member has conflict of interest, vote is 3-1 in favor. Adopted?

Voting Issues – Quasi-judicial

1. Motion to approve a special use permit. Vote is 3-3. Is the permit approved, denied, or no action taken?

2. Motion to deny a special use permit. Vote is 3-3. Is the permit approved, denied, or no action taken?

Voting Issues – Quasi-judicial

1. Motion for BOA to approve a variance. Vote is 3-2 in favor, so variance denied. Same majority then defeats motion that specifies grounds for denial.

How are the findings produced?

Voting Issues – Quasi-judicial

The ordinance requires an affirmative finding on five standards in order to issue a CUP. The board votes to find the first standard is not met. The chair announces the permit is denied.

Does the board need to vote on whether the remaining four standards are met?

Voting Issues – Quasi-judicial

1. After vote is taken, later in the meeting a member asks the board to reopen or continue the hearing on an SUP application. Can the board do so?

2. A board member asks the board to reconsider the decision made at the last meeting on a SUP. Can the board do so?

3. What if this is a rezoning instead of a SUP?

Conditions on Approvals

Conditions -- Legislative

• Council member moves to approve rezoning to Highway Business, provided owner agree limit access to site to side road only, no connection to thoroughfare that fronts site.

Legal? Enforceable?

Conditions – Quasi-judicial

Council member moves to approve SUP with the following conditions. Which are legal?

1.Increase rear vegetated buffer to 20’ instead of ordinance requirement of 10’

2.Require age-restricted multifamily project to have management staff on-site at least 20 hours per week

Conditions – Administrative

Staff review of site plan results in recommendation for the following conditions. Which are legal?

1.Increase rear vegetated buffer to 20’ instead of ordinance requirement of 10’

2.Redesign parking lot to improve traffic flow even though all technical standards for parking are met by submitted plan