2017 Bills Of Interest To Zoning, Planning & Land Use Section

By Al Benshoff

A handful of complicated bills of interest to this section were adopted during the 2017 “long session.”  Highlights include:

S.L. 2017-10 (SB 131, the “regulatory relief” act) Sec 2.4 amends rezoning “consistency statement” for municipalities and counties, effective 10/1/2017.  N.C. Gen. Stat. §§ 153A-341 and 160A-383 are amended to provide a menu of 3 “consistency” statements, one of which must be adopted “prior to” adopting or rejecting any zoning amendment.  The required statements are 1) A statement “describing its consistency with an adopted comprehensive plan and explaining why the action taken is reasonable and in the public interest” or 2) A statement “containing at least all of the following:

  1. “A declaration that the approval is also deemed an amendment to the comprehensive plan. The governing board shall not require any additional request or application for amendment to the comprehensive plan.”
  2. “An explanation of the change in conditions the governing board took into account in amending the zoning ordinance to meet the development needs of the community.”
  3. “Why the action was reasonable and in the public interest.”[1]

3) A rejection must “describe[e] its inconsistency with an adopted comprehensive plan and explaining why the action taken is reasonable and in the public interest.”

S.L. 2017-10 Section 2.5 revises definition of subdivision to create an exception for divisions by will or intestacy.  A second provides for “final plat review” only IF the

  • Property is greater than five acres.
  • It must have been at least ten years since the last subdivision.
  • The subdivision must not be exempt as a “Ten-Acre Exemption” under §§ 153A-335 (a) (2) / 160A-376 (a) (2).
  • The subdivision can be no more than three lots, including the original lot.
  • The lots must meet the “lot dimension size requirements” of the land-use regulations” [2]
  • The lots must have a permanent “means of ingress and egress” designated on the recorded plat.
  • The use of the resulting lots must comply with applicable zoning requirements.

This amendment is now in effect.

L. 2017-10 Sec. 2.15 creates two new statutes of limitation for code enforcement actions. Both limit the time to bring an action for the violation of a “land-use statute, ordinance or permit or any other official action affecting land use carrying the effect of law”[3]. The five-year statute of limitations begins to run when the “facts constitution the violation” are known to any elected board, government employee or agent or if the violation can be determined from “the public record of the unit of local government”.  The seven-year statute begins at the earlier of the date when the violation is “apparent from a public right-of-way” or “the violation is apparent from a public right-of-way”.  One exception applies to both – if there is a condition that is “actually injurious or dangerous to the public health or safety” a government may file a seek injunction.  The new time limits are not effective until October 1, 2018.

Session Law 2017-159 (HB 310) is effective immediately. Under this amendment to G.S. Chap. 160A, Art. 19, Part 3E “Wireless Telecommunications Facilities”, wireless service providers may install “small wireless facilities” in public rights-of-way, with only limited oversight by municipalities.

Municipalities (but not counties) must allow “wireless providers” to build and maintain new utility poles and locate “small wireless facilities” and “micro wireless facilities” in the public right-of-way.[4] Municipalities cannot impose an exclusive franchise requirement for use of the public rights-of-way.[5]  The amendment sets strict limits on the permitting criteria that may be used and on the fees, that may be charged.  Wireless providers are authorized to install small wireless facilities on existing municipal utility poles or to erect new utility poles specifically for small wireless facilities in the public rights-of-way. Moreover, any permitting process be administrative (i.e. approved at the staff level) and not quasi-judicial in nature.

A “Micro wireless facility”[6]  can be installed between utility poles without municipal oversight. N.C. DOT is subject to similar, but less detailed requirements for colocation in State rights-of-way.[7]

Mr. Benshoff is the ZPLU Section’s Legislative Committee Co-chair.

[1]  §§153A-341 (b) and 160A-383 (b)

[2] §§153A-335(c)(5) and 160A-376 (c)(5)

[3] N.C. Gen. Stat. § 1-51 (5) Five Years, eff. 10/1/2018.

[4] G.S. § 160A-400.55(b) and (h).

[5] G.S. § 160A-400.55(a). In contrast, G.S. § 160A-319 authorizes municipalities to grant exclusive franchises for most public enterprises.

[6] G.S. § 160A-400.51(6a)

[7] G.S. § 136-18.3A Wireless communication infrastructure