GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2017
H 4
HOUSE BILL 507*
Committee Substitute Favorable 4/19/17
Third Edition Engrossed 4/20/17
Senate Commerce and Insurance Committee Substitute Adopted 6/13/18
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Short Title: Land-Use Regulatory Changes. |
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Sponsors: |
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Referred to: |
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March 29, 2017
A BILL TO BE ENTITLED
AN ACT to make changes to the land‑use regulatory laws of the state.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 143‑755 reads as rewritten:
"§ 143‑755. Permit choice.
(a) If a development permit
applicant submits a permit application for any type of development and a rule
or ordinance changesis amended, including an amendment to any
applicable land development regulation, between the time the development
permit application was submitted and a development permit decision is
made, the development permit applicant may choose which adopted version
of the rule or ordinance will apply to the permit. If the development permit
applicant chooses the version of the rule or ordinance applicable at the time
of the permit application, the development permit applicant shall not be
required to await the outcome of the amendment to the rule, map, or ordinance
prior to acting on the development permit.
(b) This section applies to all development permits issued by the State and by local governments.
(c) Repealed by Session Laws 2015 246, s. 5(a), effective September 23, 2015.
(d) Any person aggrieved by the failure of a State agency or local government to comply with this section or G.S. 160A‑360.1 or G.S. 153A‑320.1 may apply to the appropriate division of the General Court of Justice for an order compelling compliance by the offending agency or local government, and the court shall have jurisdiction to issue that order. Actions brought pursuant to any of these sections shall be set down for immediate hearing and subsequent proceedings in those actions shall be accorded priority by the trial and appellate courts.
(e) For purposes of this section, the following definitions shall apply:
(1) Development. Without altering the scope of any regulatory authority granted by statute or local act, any of the following:
a. The construction, erection, alteration, enlargement, renovation, substantial repair, movement to another site, or demolition of any structure.
b. Excavation, grading, filling, clearing, or alteration of land.
c. The subdivision of land as defined in G.S. 153A‑335 or G.S. 160A‑376.
d. The initiation of substantial change in the use of land or the intensity of the use of land.
(2) Development permit. An administrative or quasi‑judicial approval that is written and that is required prior to commencing development or undertaking a specific activity, project, or development proposal, including any of the following:
a. Zoning permits.
b. Site plan approvals.
c. Special use permits.
d. Variances.
e. Certificates of appropriateness.
f. Plat approvals.
g. Development agreements.
h. Building permits.
i. Subdivision of land.
j. State agency permits for development.
k. Driveway permits.
l. Erosion and sedimentation control permits.
m. Sign permit.
(3) Land development regulation. Any State statute, rule, or regulation, or local ordinance affecting the development or use of real property, including any of the following:
a. Unified development ordinance.
b. Zoning regulation, including zoning maps.
c. Subdivision regulation.
d. Erosion and sedimentation control regulation.
e. Floodplain or flood damage prevention regulation.
f. Mountain ridge protection regulation.
g. Stormwater control regulation.
h. Wireless telecommunication facility regulation.
i. Historic preservation or landmark regulation.
j. Housing code."
SECTION 2.(a) G.S. 160A‑360.1 reads as rewritten:
"§ 160A‑360.1. Permit choice.
(a) If a rule or ordinanceordinance, including
an amendment to any applicable land development regulation, changes between
the time a development permit application is submitted and a development
permit decision is made, then G.S. 143‑755 shall apply.
(b) For purposes of this section, the definitions in G.S. 143‑755 shall apply."
SECTION 2.(b) G.S. 153A‑320.1 reads as rewritten:
"§ 153A‑320.1. Permit choice.
(a) If a rule or ordinanceordinance,
including an amendment to any applicable land development regulation,
changes between the time a development permit application is submitted
and a development permit decision is made, then G.S. 143‑755
shall apply.
(b) For purposes of this section, the definitions in G.S. 143‑755 shall apply."
SECTION 3.(a) G.S. 160A‑385(c) is recodified as G.S. 160A‑385(b)(5).
SECTION 3.(b) G.S. 160A‑385, as amended by this section, reads as rewritten:
"§ 160A‑385. Changes.Changes to land
development regulations.
(a) Citizen Comments.
(1) Zoning Subject
to the limitations in this Chapter, zoning ordinances may from time to time
be amended, supplemented, changed, modified or repealed. If any resident or
property owner in the city submits a written statement regarding a proposed
amendment, modification, or repeal to a zoning ordinanceordinance,
including a zoning map or text, that has been properly initiated as provided in
G.S. 160A‑384, to the clerk to the board at least two business
days prior to the proposed vote on such change, the clerk to the board shall
deliver such written statement to the city council. If the proposed change is
the subject of a quasi‑judicial proceeding under G.S. 160A‑388,
or any other statute, the clerk shall provide only the names and
addresses of the individuals providing written comment, and the provision of
such names and addresses to all members of the board shall not disqualify any
member of the board from voting.
(2) (3) Repealed by Session Laws 2015‑160, s. 1, effective August 1, 2015, and applicable to zoning ordinance changes initiated on or after that date.
(b) Amendments in zoning
ordinances land development regulations, shall not be applicable or
enforceable without the written consent of the owner with regard to buildings
and uses for which either (i) building permits have been issued pursuant to G.S. 160A‑417
prior to the enactment of the ordinance making the change or changes so long as
the permits remain valid and unexpired pursuant to G.S. 160A‑418 and
unrevoked pursuant to G.S. 160A‑422 or (ii)any of the
following:
(1) Uses of buildings or land, or subdivisions of land, for which a development permit has been issued that authorizes the use or subdivision of land, in accordance with G.S. 143‑755.
(2) Buildings, or uses thereof, for which a building permit has been issued pursuant to this Chapter, in accordance with G.S. 143‑755.
(3) aA vested right has been established
pursuant to G.S. 160A‑385.1 and such vested right remains valid and
unexpired pursuant to G.S. 160A‑385.1.
(4) A vested right established by the terms of a development agreement authorized by Part 3D of this Article.
(5) Amendments in zoning ordinances, subdivision
ordinances, and unified development ordinances shall not be applicable or
enforceable without the written consent of the owner with regard to aA
multi‑phased development as defined in G.S. 160A‑385.1(b)(7).provided
for in this subdivision, in accordance with G.S. 143‑755. A
multi‑phased development shall be vested for the entire development with
the zoning ordinances, subdivision ordinances, and unified development
ordinancesland development regulations then in place at the time a
site plan approval is granted for the initial phase of the multi‑phased
development. A right which has been vested as provided for in this subsection
subdivision shall remain vested for a period of seven years from the
time a site plan approval is granted for the initial phase of the multi‑phased
development.
(c) Recodified.
(d) Upon issuance of a development permit, the statutory vesting granted by this section shall be effective so long as the permit remains valid and unexpired pursuant to law. Unless otherwise specified by statute, local development permits expire one year after issuance unless work authorized by such permit has substantially commenced.
(e) The establishment of a vested right under any subdivision of subsection (b) of this section does not preclude vesting under one or more other subdivisions of subsection (b) of this section or vesting by application of common law principles. A vested right, once established as provided for in this section, precludes any action by a city that would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property as set forth in the development approval, except where a change in State or federal law mandating local government enforcement occurs after the development approval that has a fundamental and retroactive effect on such development or use.
(f) As used in this section, the following terms mean:
(1) Development permit. Shall mean as defined in G.S. 143‑755(e)(2).
(2) Land development regulation. Shall mean as defined in G.S. 143‑755(e)(3).
(3) Multi‑phased development. A development containing 25 acres or more that is both of the following:
a. Submitted for development permit approval to occur in more than one phase.
b. Subject to a master development plan with committed elements showing the type and intensity of use of each phase."
SECTION 3.(c) G.S. 160A‑385.1 reads as rewritten:
"§ 160A‑385.1. Vested rights.
(b) Definitions.
(7) "Multi‑phased development" means
a development containing 100 acres or more that (i) is submitted for site plan
approval for construction to occur in more than one phase and (ii) is subject
to a master development plan with committed elements, including a requirement
to offer land for public use as a condition of its master development plan
approval.
. "
SECTION 3.(d) G.S. 153A‑344(b1) is recodified as G.S. 153A‑344(b)(5).
SECTION 3.(e) G.S. 153A‑344 reads as rewritten:
"§ 153A‑344. Planning board; zoning plan; certification to board of commissioners.
(b) Amendments in zoning
ordinances land development regulations, shall not be applicable or
enforceable without the written consent of the owner with regard to buildings
and uses for which either (i) building permits have been issued pursuant to
G.S. 153A‑357 prior to the enactment of the ordinance making the
change or changes so long as the permits remain valid and unexpired pursuant to
G.S. 153A‑358 and unrevoked pursuant to G.S. 153A‑362 or
(ii)any of the following:
(1) Uses of buildings or land, or subdivisions of land, for which a development permit has been issued that authorizes the use or subdivision of land, in accordance with G.S. 143‑755.
(2) Buildings, or uses thereof, for which a building permit has been issued pursuant to this Chapter, in accordance with G.S. 143‑755.
(3) aA vested right has been established
pursuant to G.S. 153A‑344.1 and such vested right remains valid and
unexpired pursuant to G.S. 153A‑385.1.
(4) A vested right established by the terms of a development agreement authorized by Part 3D of this Article.
(5) Amendments in zoning ordinances, subdivision
ordinances, and unified development ordinances shall not be applicable or
enforceable without the written consent of the owner with regard to aA
multi‑phased development as defined in G.S. 153AA‑344.1(b)(7).provided
for in this subdivision, in accordance with G.S. 143‑755. A
multi‑phased development shall be vested for the entire development with
the zoning ordinances, subdivision ordinances, and unified development
ordinancesland development regulations then in place at the time a
site plan approval is granted for the initial phase of the multi‑phased
development. A right which has been vested as provided for in this subsection
subdivision shall remain vested for a period of seven years from the
time a site plan approval is granted for the initial phase of the multi‑phased
development.
(b1) Recodified.
(c) Upon issuance of a development permit, the statutory vesting granted by this section shall be effective so long as the permit remains valid and unexpired pursuant to law. Unless otherwise specified by statute, local development permits expire one year after issuance unless work authorized by such permit has substantially commenced.
(d) The establishment of a vested right under any subdivision of subsection (b) of this section does not preclude vesting under one or more other subdivisions of subsection (b) of this section or vesting by application of common law principles. A vested right, once established as provided for in this section, precludes any action by a county that would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property as set forth in the development approval, except where a change in State or federal law mandating local government enforcement occurs after the development approval that has a fundamental and retroactive effect on such development or use.
(e) As used in this section, the following terms mean:
(1) Development permit. Shall mean as defined in G.S. 143‑755(e)(2).
(2) Land development regulation. Shall mean as defined in G.S. 143‑755(e)(3).
(3) Multi‑phased development. A development containing 25 acres or more that is both of the following:
a. Submitted for development permit approval to occur in more than one phase.
b. Subject to a master development plan with committed elements, showing the type and intensity of use of each phase."
SECTION 3.(f) G.S. 153A‑344.1 reads as rewritten:
"§ 153A‑344.1. Vesting rights.
(b) Definitions.
(7) "Multi‑phased development" means
a development containing 100 acres or more that (i) is submitted for site plan
approval for construction to occur in more than one phase and (ii) is subject
to a master development plan with committed elements, including a requirement
to offer land for public use as a condition of its master development plan approval.
. "
SECTION 4. Part 3 of Article 19 of Chapter 160A of the General Statutes is amended by adding a new section to read:
"§ 160A‑393.1 Civil action for declaratory relief, injunctive relief, other remedies; joinder of complaint and petition for writ of certiorari in certain cases.
(a) Review of vested rights claim. A person claiming a statutory or common law vested right may submit information to substantiate that claim to the zoning administrator or other officer designated by a land development regulation, who shall make an initial determination as to the existence of the vested right. The zoning administrator's or officer's determination may be appealed under G.S. 160A‑388(b1). On appeal the question of law regarding the existence of a vested right shall be reviewed de novo. In lieu of an appeal under G.S. 160A‑388(b1), a person claiming a vested right may bring an original civil action as provided by subsection (b) of this section.
(b) Civil Action. A person with standing may bring a separate and original civil action, seeking declaratory relief, injunctive relief, damages, or any other remedies provided by law or equity, in superior court or federal court to challenge the enforceability or validity of a land development regulation without filing an appeal under G.S. 160A‑388(b1) for any of the following claims:
(1) The ordinance, either on its face or as applied, is unconstitutional.
(2) The ordinance, either on its face or as applied, is ultra vires, preempted, or otherwise in excess of statutory authority.
(c) Joinder. An original civil action authorized by this section may, for convenience and economy, be joined with a petition for writ of certiorari and decided in the same proceedings. For the claims raised in the original civil action, the parties shall be governed by the Rules of Civil Procedure. The record of proceedings in the appeal pursuant to G.S. 160A‑393 may not be supplemented by discovery from the civil action unless supplementation is otherwise allowed under G.S. 160A‑393(j). The standard of review in the original civil action shall be as established for the cause or causes of action pled. The standard of review of the petition for writ of certiorari shall be as established in G.S. 160A‑393(k).
(d) For purposes of this section, the definitions in G.S. 143‑755 shall apply."
SECTION 5. G.S. 160A‑364.1 reads as rewritten:
"§ 160A‑364.1. Statute of limitations.
(c) Nothing in this section
or in G.S. 1‑54(10) or G.S. 1‑54.1 shall bar a party in
an action involving the enforcement of a zoning or unified development
ordinance or in an action authorized by G.S. 160A‑393.1 from
raising as a claim or defense to such enforcement actionin
such proceedings the enforceability or the invalidity of the ordinance.
Nothing in this section or in G.S. 1‑54(10) or G.S. 1‑54.1
shall bar a party who files a timely appeal from an order, requirement,
decision, or determination made by an administrative official contending that
such party is in violation of a zoning or unified development ordinance from
raising in the appeal the invalidity of such ordinance as a defense to such
order, requirement, decision, or determination. A party in an enforcement
action or appeal may not assert the invalidity of the ordinance on the basis of
an alleged defect in the adoption process unless the defense is formally raised
within three years of the adoption of the challenged ordinance.
. "
SECTION 6.(a) G.S. 160A‑372 reads as rewritten:
"§ 160A‑372. Contents and requirements of ordinance.
(c) The ordinance may
provide for the more orderly development of subdivisions by requiring the
construction of community service facilities in accordance with municipal
plans, policies, and standards. To assure compliance with these and other
ordinance requirements, the ordinance may provide for performance guarantees to
assure successful completion of required improvements either at the time
the plat is recorded as provided in subsection (b) of this section.section
or at a time subsequent to the recording of the plat. For any specific
development, the type and term of performance guarantee guarantee,
or any extension of the performance guarantee, shall be at the election of
the developer.developer, provided that any performance guarantee or
extension be available to assure the successful completion of improvements for
which the performance guarantee is required. The developer shall be allowed,
without limitation, to reduce the amount of the performance guarantee to
reflect only the remaining incomplete improvements for which the performance
guarantee is required.
(g) For purposes of this section, all of the following shall apply with respect to performance guarantees:
(1) The term "performance guarantee" shall mean any of the following forms of guarantee:
a. Surety bond issued by any company authorized to do business in this State.
b. Letter of credit issued by any financial institution licensed to do business in this State.
c. Other form of guarantee that provides equivalent security to a surety bond or letter of credit.
(2) The performance guarantee shall be returned or released, as appropriate, in a timely manner upon the acknowledgement by the city or county that the improvements for which the performance guarantee is being required are complete. If the improvements are not complete and the current performance guarantee is expiring, the performance guarantee shall be extended, or a new performance guarantee issued, for an additional period until such required improvements are complete. A developer shall demonstrate reasonable, good faith progress toward completion of the required improvements that are the subject of the performance guarantee or any extension. The form of any extension shall remain at the election of the developer.
(3) The amount of the performance guarantee shall not exceed one hundred twenty‑five percent (125%) of the reasonably estimated cost of completion at the time the performance guarantee is issued. Any extension of the performance guarantee necessary to complete required improvements shall not exceed one hundred twenty‑five percent (125%) of the reasonably estimated cost of completion of the remaining incomplete improvements still outstanding at the time the extension is obtained. At the election of the developer, one hundred twenty‑five percent (125%) of the reasonably estimated cost of completion may be conclusively determined by a report provided under seal by an architect licensed under Chapter 83A of the General Statutes or an engineer registered under Chapter 89C of the General Statutes. This report may contain unit pricing information provided by a general contractor, licensed under Chapter 87 of the General Statutes, or any other competent source that the architect or engineer certifies, under seal, as accurate. The reasonably estimated cost of completion shall include all costs of inflation and costs of administration and enforcement, no matter how such related fees or charges or denominated.
(4) The performance guarantee shall only be used for completion of the required improvements and not for repairs or maintenance after completion.
(5) No person shall have or may claim any rights under or to any performance guarantee provided pursuant to this subsection or in the proceeds of any such performance guarantee other than the following:
a. The local government to whom such performance guarantee is provided.
b. The developer at whose request or for whose benefit such performance guarantee is given.
c. The person or entity issuing or providing such performance guarantee at the request of or for the benefit of the developer.
(6) The developer shall have the option to post one form of a performance guarantee as provided for in subdivision (1) of this subsection, in lieu of multiple bonds, letters of credit, or other equivalent security, for all development matters related to the same project requiring performance guarantees, including, without limitation, subdivision, erosion control, and stormwater."
SECTION 6.(b) G.S. 153A‑331(e) reads as rewritten:
"(e) The ordinance may
provide for the more orderly development of subdivisions by requiring the
construction of community service facilities in accordance with county plans,
policies, and standards. To assure compliance with these and other ordinance
requirements, the ordinance may provide for performance guarantees to assure
successful completion of required improvements either at the time the
plat is recorded as provided in subsection (b) of this section.section,
or at a time subsequent to the recording of the plat to assure successful
completion of required improvements. For any specific development, the type
and term of performance guarantee guarantee, or any extension
of the performance guarantee, from the range specified by the county shall
be at the election of the developer.developer, provided that any
performance guarantee or extension be available to assure the successful
completion of improvements for which the performance guarantee is required. The
developer shall be allowed, without limitation, to reduce the amount of the
performance guarantee to reflect only the remaining incomplete improvements for
which the performance guarantee is required."
SECTION 7. G.S. 160A‑307 reads as rewritten:
"§ 160A‑307. Curb cut regulations.
(a) A city may by ordinance regulate the size,
location, direction of traffic flow, and manner of construction of driveway
connections into any street or alley. The ordinance may require the
construction or reimbursement of the cost of construction and public dedication
of medians, acceleration and deceleration lanes, and traffic storage lanes for
driveway connections into any street or alley if:if both of the
following apply:
(1) The need for such
improvements is reasonably attributable to the traffic using the driveway;
anddriveway.
(2) The improvements serve the traffic of the driveway.
(b) No street or alley under the control of the Department of Transportation may be improved without the consent of the Department of Transportation. However, if there is a conflict between the written driveway regulations of the Department of Transportation and the related driveway improvements required by the city, the more stringent requirement shall apply.
(c) A city shall not require an applicant to acquire right‑of‑way from property not in the ownership of the applicant. An applicant may voluntarily agree to acquire such right‑of‑way."
SECTION 8. G.S. 160A‑385(b)(5) and G.S. 153A‑344(b)(5), as enacted by Section 3 of this act, are effective with respect to multi‑phased development approvals that are valid and unexpired on the effective date of this act. The remainder of this act is effective when it becomes law and applies to permits previously issued that remain valid and unexpired on the date this act becomes law and to permit actions filed, actions filed in court, and claims and defenses asserted on or after that date.