by Michael B. Kent, Jr.
More than 500 counties and municipalities in North Carolina have adopted some sort of zoning and land use ordinance. In general terms, these ordinances have two broad functions. First, they govern the uses to which land may be put by classifying individual parcels as residential, commercial, industrial, and so forth. Second, they govern the way land is developed by regulating the size and location of buildings, the amount of land that can be occupied, and other building and design issues.
These regulations can significantly affect real estate projects or transactions, and they frequently necessitate some type of government approval before a deal or project can be consummated. Failure to obtain the correct approvals or otherwise to comply with the local regulations could threaten the planned use of the property or expose the parties to fines, enforcement proceedings, and other legal problems.
To facilitate a better understanding of the regulatory system, some basic characteristics of land use approvals are highlighted below.
Types of Approvals
Land use approvals tend to fall into one of three basic categories—legislative, quasi-judicial, and administrative. These categories are named for the types of governmental decisions from which they result, and each type has its own distinctive characteristics, decisionmakers, and procedures.
Legislative Decisions
Legislative decisions adopt the ordinances, policies, and standards that make-up the regulatory system. These decisions are made by the locality’s governing board, such as the county commission or city council. In much the same way as Congress or the General Assembly enacts statutes, the governing board adopts ordinances and other legislative pronouncements that establish the rules governing land use and development.
The most typical approval resulting from a legislative decision is a rezoning. A rezoning occurs when the governing board adopts an ordinance that changes the zoning classification for a particular parcel (or parcels) of land. For example, a developer wanting to build a retail center on land zoned for residential use would need to have the governing board reclassify the land for commercial purposes. Because rezonings change the locality’s zoning map (an official map depicting the zoning classification for each parcel in the jurisdiction), they are also known as “map amendments.”
A rezoning usually requires at least two public hearings, one before the local planning commission (which recommends approval or disapproval) and the other before the governing board (which makes the final decision). Both hearings are open to the public, and citizen comments are allowed.
Quasi-Judicial Decisions
Quasi-judicial decisions apply the locality’s ordinances and policies to individual cases and situations. These decisions are often made by the locality’s board of adjustment, but other bodies (such as the governing board or planning commission) may also have the authority to make them in certain places or circumstances. These decisions derive their name from the fact that the party seeking the decision bears the burden of proving the existence of certain facts or the satisfaction of delineated legal criteria. In this way, quasi-judicial hearings can be thought of as “mini trials.” While such hearings are open to the public, only witnesses who can provide relevant evidence are allowed to speak.
The most frequently sought quasi-judicial approvals are special use permits and variances. Special use permits authorize a specific type of development or use within a designated zoning classification, but only if compliance with certain standards or conditions can first be shown. Local governments require these permits to mitigate potential harm from atypical (but perhaps not incompatible) uses. Places of worship or home occupations in a residential zone are common examples. Variances relax certain development standards that are proven to result in “unnecessary hardship” to the landowner. Essentially, this requires the landowner to demonstrate that something peculiar to the property makes strict application of the regulations inequitable or uniquely burdensome.
Administrative Decisions
Administrative decisions are those made by the locality’s planning and development staff. Legally, these decisions must be based on objective criteria prescribed in the regulations. The planning and development officials are not allowed to exercise subjective discretion but are charged simply with certifying whether a particular proposal meets the criteria or not. Common examples of administrative land use approvals include zoning compliance certificates, site plan approval, and subdivision approval. These approvals usually do not require a hearing, although one can be obtained by appealing an adverse decision to the local board of adjustment.
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Navigating the rules governing land use can be crucial to a successful real estate project or transaction. Envisage attorneys assist property owners, developers, purchasers, tenants, and other interested parties with investigating land use issues, developing strategies, and obtaining approvals. If you have questions about this alert or think we might be of assistance to you, you may contact us at (919) 755-1317.