Legislative Update – Comprehensive Zoning Reform is Coming . . . I think!

Tonight the State Senate voted 45-0 to approve Senate Bill 419, and I’m doing a rather undignified happy dance.  Approval does not mean passage.  The bill still must pass the House, but approval by the Senate means it is alive for the short session in 2018.

SB 419 is North Carolina’s first comprehensive zoning and land use reform since the early 1920s.  It began in the Zoning and Land Use Section of the NC Bar Association and has been a multi-year, collaborative project.  Unlike most legislation, it was drafted, vetted, and reviewed through an open process involving members of industry and government.

SB 419 was not a vehicle for making substantive policy changes to land use and zoning law or for increasing or diminishing powers of government. Changes represent clearer language, consensus updates, or codification of settled law.  Changes without clear consensus were deleted and were reserved for other, separate bills.

Various drafts were posted on websites and sent to several constituencies for input, comment, and suggestions.

Summary of key points:

  • Consolidates city and county zoning and development regulation statutes into a clearer framework that makes regulations easier to follow, simpler to find, and consistent with modern business and government needs. Intentional differences (e.g. bona fide farms) are kept.
  • Replaces separate city and county statutes with a single, simpler, consistent statute applicable to all local governments.
  • Definitions listed in one place; board powers now found in one place; simplifies confusing and outdated terms.
  • Establishes uniform, consistent procedures for adopting ordinances, processing applications, and administration of building permits.
  • Makes no substantial changes in the scope or nature of local government authority to regulate development or to exact land, construction, or money as a condition of development approval.
  • Reduces confusion for local elected officials, staff, land owners, developers, neighbors, and the public based on widespread input.

Why was Modernizing These Statutes Important?

Over the century since the initial adoption of zoning statutes, the statutory framework has become unwieldy, confusing, and hard to use for lawyers, zoning officials, developers, and the public. They’ve been anything but user friendly.

How We Got To Where we Are

The Zoning and Land Use Law Section has, over the past decade, developed several proposals to clarify and simplify North Carolina zoning laws. These initiatives have been non-partisan and had the support of the public and private sectors affected by these statutes. The first such effort was G.S. 160A-393, the codification of appeals from quasi-judicial boards (2009), and the second initiative was the modernization and update in 2013 of the statute on boards of adjustment, G.S. 160A-388.

With the board of adjustment update, we did two things right. We footnoted every change to explain the thinking of the drafting committee, and we sent drafts to every possible stakeholder asking for input. The democratized process created both trust and better legislation.

The present effort began in 2013 in side discussions during the rewrite of the board of adjustment statute. Drafting began in earnest in 2014, and the first legislative effort passed the House in 2015 but didn’t reach the Senate.  After the 2016 session, the Zoning and Land Use Law Section took the final version of the 2015 bill and continued to work with affected parties to identify and resolve remaining technical and policy areas of concern.  After an additional six months of consultation, discussion, and revisions, an updated consensus version of the Chapter 160D proposal was completed in early 2017.

A Tremendous Group Effort

If there is a star in the cast of characters it is David Owens at the UNC School of Government.  This task was nothing short of gargantuan, and there is only one person in this state capable of doing the primary drafting, and that is David Owens.  David is also trusted by every planner, city and county attorney, and private attorney in the state, and he was the only person who had memorized every sentence in the 117 page bill.  He also authored the over 600 footnotes.

LeAnn Nease Brown offered great insight and diplomacy, and Robin Currin, one of the best land use attorneys in the state (now attorney for the City of Asheville) worked both sides of the spectrum, communicating with developers and city attorneys who were either distrusting or wanting to convert the bill to a reform vehicle for their interests.  Michelle Frazier, lobbyist for the NC Bar Association, demonstrated why she is recognized as one of the best in the business, helping us to stay on top of the labyrinthine legislative process.

But the true heroes are the senate sponsors, Floyd McKissick of Durham and Michael Lee of Wilmington.  Senator McKissick knows zoning laws inside and out from service on the Durham City Council, and his support was key.  Among the Democrats, he is highly trusted and respected.

Michael Lee, however, is the one person whose support made this bill viable and who enabled its approval by the senate.  Michael is a former law partner, and I know him well.  Smart as the dickens, competent at everything he does, and one of the most efficient time managers I’ve ever met.  Michael read and reread this bill, asking many questions.  He met with us, helped with different stakeholder groups, and made sure senate leadership was aware that this was a nonpartisan effort to improve the laws for all people of this state. The respect he has earned in the Senate was clear.

And I’m Back

When I began work on this bill over three years ago, something in my schedule had to give way, and it was this blog. Now I’m back, and I hope to continue providing you with keen insights into the ever changing legal landscapes of zoning, land use, and environmental laws.

Read future posts for legal updates, practical insights, and opinions without apologies.

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