Local governments have until July 1 to adopt development regulations that conform to new state law. North Carolina General Statutes do not include major policy changes but there are some reforms that clarify how towns and counties handle proposed land uses such as new subdivisions.
Consultant Chad Meadows, with the CodeWright company, met with county leaders last week to review a list of required changes to the Moore County Unified Development Ordinance. He also provided his recommendations to further improve existing county regulations.
Meadows said revisions to the statutes’ Chapter 160D represent the first total overhaul of North Carolina’s planning-enabling legislation in over 100 years.
“The intended purpose is to standardize regulations and provide more clarity,” Meadows said, noting that previous updates to other portions of state law contained subtle distinctions between city and county regulations, which led to confusion.
“The goal with 160D was to create a good governance bill that will make regulations more clear and predictable for applicants, staff members, elected officials, attorneys and, most importantly, judges.”
The county and all municipalities are expected to adopt the changes by July 1; however, even if they miss that deadline, the new state law will supersede any existing outdated regulations.
Moore County’s current UDO was adopted in February 2014. It has been amended 17 times since then, a number Meadows said was fairly predictable.
“All ordinances are living documents. They change due to conditions or outside factors,” he said. “Your ordinances live and breathe, and sometimes they’ll need to change.”
The required UDO changes will help ensure the local ordinances speak the “same language” as the state requirements, Meadows added, particularly with consistency in terminology and definitions in land use. There are also new standards for how a conflict of interest is determined for anybody in a position to make a decision (including advisory boards).
The new state law also provides a layer of protection for county and staff to make sure an application is complete prior to accepting it.
The so-called “completeness determination” helps to prevent a flood of incomplete applications being submitted in advance of a proposed land use change. In North Carolina, applicants will continue to have the option to use the current ordinances or a previous ordinance, basically what was in use, when their application was accepted.
One potential quibble: how the county operates under quasi-judicial proceedings for some land use decisions. Meadows cautioned county leaders that quasi-judicial procedures, which prohibit one-party communication with an applicant, are “antithetical to your role as an elected official.”
“Here’s the thing. In quasi-judicial you can’t talk to your constituents outside of the hearing. That puts elected officials in a strange place,” Meadows said. “Another reason is there is a very detailed and legally dangerous process that you must follow as part of a quasi-judicial hearing. If you fail to follow it to the letter, someone can bring you into litigation and you will lose. Even if you made the right (land use) decision.”
He described this as a “heartbreaking” situation for local governments when a development project that is not desired by the general community “wins” on a technicality.
Meadows said there is a “time and a place” for quasi-judicial processes, but said that he does not recommend that elected officials oversee those proceedings.
The new state law does not roll back any previous changes that limit local governments’ ability to control design guidelines for single-family or duplex homes.
County Manager Wayne Vest asked Meadows about the cost impact for the new UDO changes, “We hear from builders that every regulation costs them money and creates a higher house price.”
Meadows recommended that county and town leaders consider providing “allowable deviations” or incentives for applicants — such as permitting extra/higher density or waiving open space-requirements — that would give flexibility to builders in exchange for an overall higher quality product.
“The best way to address that concern, in my experience, is to create an opportunity for the applicant to get more yield. Coming down harder with more sticks doesn’t work, so the way to appeal is to the bottom line and that means more units,” Meadows said.
He also encouraged the county to add more illustrations to its UDO, “You need to telegraph your intent to applicants that this is the kind of development you’d like to see.”