AGENDA #3
MEMORANDUM
TO: Mayor and Town Council
FROM: W. Calvin Horton, Town Manager
Ralph D. Karpinos, Town Attorney
SUBJECT: Public Hearing: Land Use Management Ordinance Text Amendments–Modifications to Ordinance Associated With Legislative Changes
DATE: January 18, 2006
PURPOSE
This Public Hearing has been called to consider text amendments to the Land Use Management in response to legislative changes to the North Carolina General Statutes relating to city and county planning. The intent of the proposed text amendments to the Land Use Management Ordinance is to bring Town regulations into accord with the new Statutes. The proposed amendments would allow the Council to 1) reduce the amount of time that the Planning Board has to provide recommendations to the Town Council, in regard to Zoning Atlas Amendments; and 2) modify the requirements associated with preparing a protest petition for Zoning Atlas Amendments.
Additional detail regarding these two recommendations for Land Use Management Ordinance text amendments, as well as other recent amendments to North Carolina statutes pertaining to local government, are in the Discussion Section below.
The attached Ordinance would amend the regulations to make these changes. We recommend that the Town Council enact the Ordinance.
BACKGROUND
In 2005, the following were bills enacted by the North Carolina General Assembly:
· Senate Bill 518, “An Act to Clarify and Make Technical Changes to City and County Planning Statutes;” and
· Senate Bill 814, “An Act to Modernize and Simplify City and County Planning and Land-Use Management Statutes.”
Both bills clarify some legal questions and codify into statute principles of law based on decisions of the Courts. Senate Bill 518 enacted five modifications to the statutes that effect municipalities and Senate Bill 814 enacted six modifications that effect municipalities. A copy of each bill is attached.
DISCUSSION
Based on these 11 modifications to statutes, we believe two changes concerning Zoning Atlas Amendments to the Land Use Management Ordinance are necessary, as indicated in the introduction. In addition, we also recommend procedural changes in regard to Zoning Atlas Amendment protest petitions. These three recommendations are discussed below. Recommended amendments to the Land Use Management Ordinance are indicated by strikeouts for deletions and underscores for additions.
We recommend amending the Land Use Management Ordinance, regarding Zoning Atlas Amendments, as indicated in the discussion of items one and two below:
1. Changes to Statute(s) Pertaining to Planning Board Recommendations for Zoning Atlas Amendments: Section 7(a) of Senate Bill 518 clarifies that Planning Board recommendations to the Town Council are required for Zoning Atlas Amendments. As amended, General Statutes 160A-387 and 153A-344 require 1) that pending Zoning Atlas Amendments must be referred to the Planning Board, 2) that the Board must make comments on the consistency of the proposed rezoning with the Comprehensive Plan, and 3) that the Board must provide recommendations to the Council within 30 days unless given an extension by the Council.
Current Town Requirements: Article 4.4 of the Land Use Management Ordinance requires 1) that pending Zoning Atlas Amendments are referred to the Planning Board, 2) that the Planning Board must comment on the consistency of such amendments with the Comprehensive Plan, and 3) that the Planning Board provide a written recommendation to the Council within 35 days unless given an extension by the Council. Town regulations and practice do not conform to this last part (3) of the amended statute, which requires the Planning Board to report to Council within 30 days.
Recommendation: To conform to amended General Statutes 160A-387, we recommend amending Subsection 4.4.2(d)(2) of the Land Use Management Ordinance as follows:
The Planning
Board shall prepare its recommendations within thirty‑five (305)
days of the meeting at which the Town Manager's report is submitted to the
Planning Board and shall forward its recommendations to the Town Council at the
Town Council's next available public hearing scheduled for amendment
applications or within such further time consented to in writing by the
applicant or by Town Council resolution. If the Planning Board fails to
complete its recommendation to the Town Council within this time limit, or
extensions thereof, the Town Council may proceed in its consideration
without the Planning Board’s recommendations. Planning Board's
recommendation shall be for approval.
2. Changes to Statute(s) Pertaining to Protest Petitions for Zoning Atlas Amendments: Section 5 and 6 of Senate Bill 518 clarify rules pertaining to Protest Petitions for Zoning Atlas Amendments. As amended, General Statutes 160A-385 and 160A-386 clarify 1) the area qualifying for a Zoning Atlas Amendment and 2) that a person filing a protest petition may withdraw his/her name from the petition.
Current Town Requirements: Article 4.4 The Land Use Management Ordinance conforms to General Statutes 160A-385 and 160A-386, as amended.
Recommendation: We recommend amending the Land Use Management Ordinance to more closely match General Statutes 160A-385 and 160A-386. We recommend making the following minor amendment to Subsection 4.4.2(i) of the Land Use Management Ordinance for purposes of clarification and conformance to statutes, as follows:
“A petition
protesting a proposed amendment shall be subject to the provisions of North
Carolina General Statutes Sections 160A-385 and 386, as may be amended from
time to time. To qualify as a protest petition, Aany
petition shall…”
In addition to this amendment to the Land Use Management Ordinance, we will be changing the Town’s Protest Petition handout and informational documents for Zoning Atlas Amendments (Attachment) to reflect the changes in the law.
We recommend changing Town administrative procedures, regarding Zoning Atlas Amendments, as indicated in the discussion of item three below:
3. Changes to Statute(s) Pertaining to Public Notice for Zoning Atlas Amendments: Section 4(a) of Senate Bill 518 changes the requirements for public notice for Zoning Atlas Amendments. As amended, General Statute 160A-384(b) simplifies the alternate (newspaper rather than mail) notice provision for large-scale rezonings (those affecting more than 50 properties) by requiring a half-page newspaper ad to be published twice rather than four times prior to the public hearing. An additional amendment requires that on-site posting of signs be done to notify effected property owners of the rezonings and associated hearing.
Current Town Requirements: Exceeding North Carolina Statutes, current Town procedures include mailing to property owners within 1,000 feet of the perimeter of the site proposed for rezoning prior to Zoning Atlas Amendments, have published notice in a local newspaper publication two times prior to a public hearing, as well as posting notice signs on the site of the rezoning.
Recommendation: We recommend no changes to the Land Use Management Ordinance because the Town currently exceeds statute requirements. We recommend clarification of Town procedures for newspaper notifications prior to rezoning Public Hearings to conform to North Carolina General Statute 160A-384(b). The new procedures for notice of Zoning Atlas Amendment applications are provided as Attachment 2.
We recommend neither amending the Ordinance nor changing Town procedures, as indicated in the following discussion of items four through 11 below:
4. Changes to Statute(s) Pertaining to Subdivision Plats: Section 2(a) of Senate Bill 518 does not make substantive changes to existing law. As amended, General Statute 160A-371 adds new language that provides that plat decisions “may be made only on the basis of standards explicitly set forth . . .” and that when an ordinance includes criteria for a decision that “require application of judgment, those criteria must provide adequate guiding standards for the entity charged with plat approval.”
Current Town Requirements: We believe that the Land Use Management Ordinance conforms to amended General Statute 160A-371, as specified by current language in Article 4.6. The Article requires that subdivision plat approvals be based on specific standards and provide adequate guiding standards for those bodies charged with plat approvals.
Recommendation: No changes are needed to the Land Use Management Ordinance.
5. Changes to Statute(s) Pertaining to Board of Adjustment Procedures: As amended, Section 8(a) of Senate Bill 518 clarifies Board of Adjustment Procedures in General Statutes 160A-388 and 153A-345.
Current Town Requirements: Existing Town ethical standards for advisory boards as well as case law conform to amended General Statutes 160A-388 and 153A-345.
Recommendation: No changes are needed to Town ethical standards.
6. Changes to Statute(s) Pertaining to Illegally Subdivided Lots: As amended, Section 3(a) of Senate Bill 814 provides express authority to deny Building Permits for lots that have been illegally subdivided in General Statutes 160A-375 and 153A-334.
Current Town Requirements: We believe that the Land Use Management Ordinance conforms to amended General Statute 160A-375 and 153A-334, as specified by current language in Article 4.9. The Article requires that final subdivision plats be approved by the Town Manager and recorded with the County register of deeds. Furthermore, the Article requires a Zoning Compliance Permit with a deed or recorded plat, prior to issuance of a Building Permit.
Recommendation: No changes are needed to the Land Use Management Ordinance to conform to General Statute 160A-375.
7. Changes to Statute(s) Authorizing the Planning Board to Approve Special Use Permits: As amended, Section 5(a) of Senate Bill 814 authorizes Planning Boards to approve Special Use Permits in General Statutes 160A-381 and 340.
Current Town Requirements: Article 4.5 of the Land Use Management Ordinance authorizes the Town Council to approve Special Use Permits. A change to the Land Use Management Ordinance to authorize Planning Board approval of Special Use Permits could be initiated by the Town Council if desired.
Recommendation: We do not recommend amending the Land Use Management Ordinance. The Town Council has chosen not to delegate this authority to the Board of Adjustment (as previously authorized by statute) or the Planning Board as authorized by General Statute 160A-375.
8. Changes to Statute(s) Authorizing Enactment of Temporary Moratoria: As amended, Section 5(a) of Senate Bill 814 provides express authority to enact temporary moratoria and establishes procedures for their enactment in General Statutes 160A-381 and 340.
Current Town Requirements: There are no references to temporary moratoria in the Land Use Management Ordinance. Town practice regarding moratoria has been guided by the Constitution and existing case law.
Recommendation: No changes to the Town’s Land Use Management Ordinance are required to conform to General Statute 160A-388 and 153A-345. The amended General Statutes 160A-375 and 153A-334 essentially codify case law, thereby making legal precedent explicit, and providing better guidance to the Town regarding temporary moratoria.
9. Changes to Statute(s) Pertaining to Special Use Permits in Conditional Use Districts: Section 6(a) of Senate Bill 814 amends provisions pertaining to Special Use Permits in Conditional Use Districts in General Statute 160A-382. The amendment provides that standards which may be imposed are limited to those mutually approved by the Town and the applicant. This, in effect, authorizes a form of contract zoning and makes it important when such procedures are being used to obtain the consent of the applicant at the time of approval.
Current Town Requirements: Subsection 4.4.1(c) the Land Use Management Ordinance contains language that regulates the relationship of Special Use Permits and Conditional Use Districts according to amended General Statute 160A-382.
Recommendation: No changes to the Town’s Land Use Management Ordinance are required to conform to General Statute 160A-382.
10. Changes to Statute(s) Pertaining to Zoning Atlas Amendments: Section 7(a) of Senate Bill 814 amends provisions pertaining to Planning Board recommendations and Council enactments of Zoning Atlas Amendments. The amended statutes provide that Planning Board recommendations and Council enactments for Zoning Atlas Amendments must contain a statement of the suitability of the rezoning in relation to the Comprehensive Plan in General Statute 160A-383.
Current Town Requirements: The introductory paragraph to Article 4.4 of the Land Use Management Ordinance contains language that reflects the requirements of General Statute 160A-382, as amended. The language requires that zoning amendments be done “…to achieve the purposes of the Comprehensive Plan…and…in conformance with the Comprehensive Plan.” Furthermore, the introductory paragraph for Zoning Atlas Amendments Resolutions ends with the following language: “…and finds that the amendment is warranted in order to achieve the purposes of the Comprehensive Plan.” We believe that Planning Board recommendations and Council enactments of Zoning Atlas Amendments contain an express statement of conformance with the Comprehensive Plan.
Recommendation: No changes to the Town’s Land Use Management Ordinance are required to conform to General Statute 160A-382.
11. Changes to Statute(s) Pertaining to Development Agreements: Section 9(a) of Senate Bill 814 authorizes municipalities and property owners to enter into long-term (up to 20 years) binding development agreements regarding large-scale projects (minimum 25 acres) in General Statutes 160A-400.20 through 160A-400.32. The language of General Statute 160A-400.20(b) specifies that, “In entering into such agreements, a local government may not exercise any authority or make any commitment not authorized by general or local act and may not impose any tax or fee not authorized by otherwise applicable law.” The use of development agreements for municipalities is optional.
Current Town Requirements: The Town currently has no such provisions in the Land Use Management Ordinance.
Recommendation: We do not recommend any changes to the Land Use Management Ordinance at this time. The provisions are optional and we do not foresee an immediate need.
RECOMMENDATIONS
Planning Board Recommendation: The Planning Board reviewed the proposal on January 3, 2006 and voted 6-0 to recommend approval of the text amendment proposal. Please refer to the attached Summary of Planning Board Action (Attachment 2).
Manager’s and Attorney’s Preliminary Recommendation: We recommend that the Council enact the attached ordinance to amend the Land Use Management Ordinance to 1) reduce of the amount of time that the Planning Board has to provide recommendations to the Town Council, in regard to Zoning Atlas Amendments; and 2) modify of the requirements associated with preparing a protest petition for Zoning Atlas Amendments.
ATTACHMENTS