rule or ordinance will apply to permit if the rule or ordinance changes between ... Conditions on Conditional Zoning and in Special or Conditional Use...
Sponsored by Reps. Jordan, J. Bell, Conrad, W. Richardson
Sections 1-10: Permit Choice/Vesting/Rezoning GS 143-755, enacted in the Regulatory Reform Act of 2015, provides that a permit applicant may choose which version of rule or ordinance will apply to permit if the rule or ordinance changes between the submission of permit application and the permit decision. Sections 1-4 clarify the scope of permit choice by specifically including zoning map amendments and development regulations within its purview. It also provides expedited review procedures to challenge government action when permit choice is denied including a claim for damages. Sections 5-8 harmonize the permit choice law with existing statutory vesting protection statutes as well as clarifying those statutes. Also, the seven year vesting protection for multi-phase development obtained via HB 483 last session is expanded to more projects (i.e., the 100 acre project minimum is reduced to 25 acres. Section 9-10 eliminates the present ability of third parties to initiate rezoning requests. Under this change, only the property owner(s) or the city or county may seek a zoning map amendment. Sections 11-13: Allowing certain claims to be filed directly in Superior without going to Board of Adjustment Provide a more equal playing field for property owners for claims of unconstitutionality, lack of authority or pre-emption, vesting or takings to be filed directly in Superior Court. o Members of zoning board which decide fate of affected landowner are exclusively selected by the local government and compensated by local government. o Zoning Board has the power to decide the facts, which is often decisive of outcome. Courts will defer to their facts if any evidence in record to support. Property owners have no discovery rules to find facts that government possesses that might be in their favor. No right to depose witnesses. The zoning board hearing is susceptible to ambush and surprise. No new material evidence can be offered later. Correct the confusion in the law created by two lines of conflicting Court of Appeal’s decisions. Permits all defenses to be asserted in one forum selected by property owner. Promotes judicial economy; streamlines the process by avoiding bifurcated claims. Section 14: No estoppel effect when challenging unlawful conditions • Eliminates current Hobson’s choice when faced with an illegal condition attached to development approval. This change permits development to proceed, mitigate damages, saves financial commitments, while contesting improper condition. Sections 15: Attorneys’ Fees for Defending Against Illegal Local Government Actions • Attorney’s fees shall be awarded when a local government violates statute or case law setting forth unambiguous limits on its authority. Current law requires abuse of discretion to be shown. Provides that reasonable attorneys’ fees and costs shall be awarded when violation of permit choice statute is proved. Sections 16-17: Refine Performance Guarantee Reforms of 2015 • Prohibits local governments from requiring completion of all improvements before plat approval if local government fails to adopt ordinance in compliance with law; allows appropriate reduction of term of and amount of performance guarantee; allows alternative cost of completion of improvements under seal; option to post one form of performance guarantee; limits third party claims to performance guarantees. Sections 18-19: Limit Illegal Conditions on Conditional Zoning and in Special or Conditional Use Permits • Adds specificity to existing prohibition on imposing unlawful requirements (e.g. impact fees, aesthetic controls, etc.) for which the city or county does not have authority under statute to regulate or for which the courts have held unenforceable. Codifies Woodhouse decision by providing that a development permit shall not be denied on the basis that existing public facilities are inadequate to serve the property described in the permit application. Sections 20-21: No grandfathering of Inspections prohibited by S.L. 2013-118 • Adds language to prohibition enacted in 2013 on local government adoption of local ordinances requiring regular inspections beyond those allowed by NC Building Code. New language prevents enforcement of any existing ordinance, resolution or policy prior to effective date of 2013 law. Section 22: DOT Driveway Regulations Apply to City Maintained Public Roads • Assures uniform application of DOT Driveway regulations across state; further provides that city may not require applicant to acquire ROW from property not owned by applicant.
