Still Standing: COA Declines To Change Standing Requirements

By Nick Tosco

In reading the most recent Court of Appeals decision on standing in North Carolina, Hoag v. Pitt County (19-826 – Unpublished), I’m reminded of Elton John’s hit “I’m Still Standing.” It seems like there is a new challenge to the standing requirements in North Carolina on a regular basis, and yet the appellate courts consistently hold the line on the requirement to allege special damages that are distinct from the rest of the community in a particularized and supportable way. In Hoag, the Court declined the opportunity to knock down the standing barrier. This requirement is very much “still standing … yeah, yeah, yeah.”

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Legislature Delays Enactment of 160D and Enacts Rules for Remote Meetings During State of Emergency

By Lisa Glover

S.L. 2020-3, SB704 was passed by the House and Senate on May 2 and signed into law by the governor on May 4. It contains the following of interest to ZPLU members:

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Volunteers Needed to Help Write Articles on NCGS 160D

Toby Coleman

Ashley Anderson

By Toby Coleman and Ashley Anderson

To celebrate and prepare for Chapter 160D taking effect next year, the ZPLU section plans to publish a series of articles on 160D written by ZPLU members—and we need your help!

ZPLU members were instrumental in the drafting and passage of 160D, which will consolidate the enabling statutes for development regulations currently scattered between Chapters 153 and 160A into a single, unified chapter.

Now we need your help in outlining how 160D will operate when it takes effect in January. The plan is to have each article focus on a piece of the law. We are looking for volunteer authors to write articles on portions of 160D.

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Good Resource on 160D

By Toby Coleman 

If you’re looking to learn more about new Chapter 160D of the North Carolina General Statutes (effective 2021), David Owens and Adam Lovelady with the UNC School of Government have created a good website that links to a number of resources on new Chapter 160D, including cross-over charts and an annotated version of 160D. Even if you attended presentations on 160D through the ZPLU section or the School of Government’s 160D Regional Workshops, this website provides useful information and resources that will be valuable as we head into the transition to 160D.

(For the uninitiated, new Chapter 160D will be the state’s new chapter on local zoning and development regulation starting in 2021. It consolidates and relocates the current statutes for local zoning and development regulations that are now located in Chapters 153A and 160A.)

 

Case Summary: Dellinger v. Lincoln County, N.C. App. No. COA18-1080 (2019)

 

Kevin Hornik

Garrett Davis

By Kevin Hornik and Garrett Davis

N.C. Court of Appeals (i) further clarifies conditions which demonstrate bias by a quasi-judicial decision maker, and (ii) clarifies the burden of expert testimony required to overcome a prima facie showing of entitlement in quasi-judicial proceedings.

This case involves an application by several property owners (the “Petitioners”) for a conditional use permit (the “CUP”), permitting Strata Solar (“Strata”) to build a solar farm on a portion of the Petitioners’ properties. Several neighbors (the “Intervenors”) sought to intervene, arguing that the Lincoln County Board of Commissioners should deny the Petitioners’ CUP application on the grounds that the solar farm would substantially injure the value of adjoining or abutting properties. Petitioners argued that the Lincoln County Board of Commissioners and the superior court erred in denying the Petitioners’ motion to recuse a Commissioner from participating in the review of and decision on Petitioners’ CUP application where that Commissioner had advocated against the CUP prior to taking office and had presented his own evidence against the CUP after taking office.

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Part I of S.L. 2019-111–Provisions to Clarify and Change the Land Use Regulatory Laws of the State

Kevin Hornik

Garrett Davis

By Kevin Hornik and Garrett Davis

On June 28, 2019, the General Assembly ratified Senate Bill 355, (S.L. 2019-111), titled “An Act to Clarify, Consolidate, and Reorganize the Land-Use Regulatory Laws of the State.” The Act, comprised of two parts, does a number of noteworthy things. First and foremost, Part II is the much-anticipated addition to the General Statutes, Chapter 160D, which consolidates and reorganizes the municipal and county land-use planning and development statutes into one chapter. Fortunately, the broad changes found in Chapter 160D do not become effective until January 1, 2021, giving land-use attorneys plenty of time to become familiar with the new statutes. Read more

Land Use Law Changes, Including New 160D, Signed Into Law

By Lisa Glover

S355, Land-Use Regulatory Changes, was signed by the governor July 12.  The law (S.L. 2019-111) contains provisions affecting litigation practices in land use disputes, further refinements to the “Permit Choice Act” and the law regarding vested rights, and various provisions affecting day to day operations for local governments processing development permit applications (Part 1), as well as the enactment of Chapter 160D prepared by David Owens, Tom Terrell, LeAnn Nease Brown, and Robin Currin, which is a complete rewrite of the state’s planning and land use statutes (Part 2).   Part 1 was immediately effective July 12, while Part 2 will become effective Jan. 1, 2021.

Congratulations to the 160D team on seeing their goal accomplished! David Owens has indicated that the School of Government “will be putting out detailed information on the content and implications of 160D over the next few months, including an updated annotated version of the bill, tables that cross-reference the new statute to the existing statutes, checklists of items that need to be updated in local ordinances, and more,” including webinars and workshops.  The ZPLU Section Council is also currently in the process of planning a fall event to learn more about the new legislation, to celebrate the passage of 160D and to recognize those who were integral in making it happen.

From the Chair: ZPLU At the Forefront Of Change

By T.C. Morphis

Growing up in Hickory, N.C., I once thought that the entire world ran on furniture and textile mills. How much has changed in 30 years: North Carolina’s population has exploded, with people flocking to places to like Charlotte and the Research Triangle, while other parts of the state struggle. Amid this growth, our state continues to wrestle with the difficult questions: Who are we? Who do we want to become? As members of the Zoning, Planning & Land Use Law Section, we have the privilege and the challenge of being at the forefront of much of this change. Our Section members practice throughout North Carolina, representing developers, units of local government, and private citizens and neighborhood groups. We strive to reflect all of these roles on our Section Council, along with the geography and diversity of our state.

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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:
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Coming Soon To a Street Near You: 50-Foot Wireless Cell Phone Towers

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By Al Benshoff

With the adoption of H.B. 310 (S.L. 2017-159), all municipalities and the N.C. Department of Transportation must allow the location of “small wireless facilities” in the public rights-of-way.  Here are a few FAQs about the application of the law.

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