AGENDA #9c(1)
MEMORANDUM
TO: Mayor and Town Council
FROM: Ralph D. Karpinos, Town Attorney
SUBJECT: Moratorium: Additional Information
DATE: January 28, 2002
The purpose of this memorandum is to provide additional information regarding the possibility of enactment of a moratorium.
BACKGROUND
On January 14, during the Council’s discussion of the new Development Ordinance, the possibility of enacting a moratorium was mentioned as a way to delay consideration of development until the new Ordinance is enacted. Background materials on the subject of a moratorium were collected and were distributed to the Council on January 24, 2002, with the Agenda materials for the January 28 meeting.
On January 23, 2002, during the Council’s Work Session on the U.S. 15-501/Erwin Road/Sage Road area, additional discussion took place regarding the possibility of a moratorium in this area and Town-wide. This report addresses certain issues raised during that discussion. An accompanying memorandum from the Town Manager addresses these as well as other moratorium-related matters raised that evening.
(The information in this memorandum is supplemental to the information contained in the previously distributed materials.)
DISCUSSION
This memorandum addresses the following issues:
1. What process is required for the enactment of a moratorium.
2. What are the possible justifications for a moratorium and specifically, what are the probable justifications for consideration of a moratorium under these particular circumstances.
3. To what should a moratorium be applied.
i. Rezoning, subdivision, special use permit, etc.
ii. Possible exceptions for affordable housing or other special factors
1. What process is required to enact a moratorium.
a. General Process. Although there is no direct clear statutory authority to enact a moratorium, the North Carolina Court of Appeals has concluded that a moratorium is within the purview of statutes authorizing zoning and subdivision regulation. At the same time, the Court has made it clear that enactment of a moratorium is subject to the procedural requirements for enactment of an amendment to the Development Ordinance. A moratorium is, in effect, a temporary development regulation.
Enactment of a moratorium, therefore, requires that the Council conduct a public hearing and receive a recommendation from the Planning Board and the Town Manager, in a manner similar to the way any other text or map amendment is considered.
b. Notice Required. Because of the potential broad scope of the moratorium based on what is being tentatively considered, the law allows for a special procedure insofar as notice to property owners is concerned. Under this procedure, individual mailed notice would not be required, but it is necessary to publish notice of the public hearing once a week for four successive calendar weeks in a newspaper having general circulation in the area. The notice must include a map and an explanation of the proposal. Assuming the Council decided this evening to proceed with consideration of a Town-wide moratorium, a public hearing on the interim ordinance should not be scheduled until early March in order to allow sufficient time for this notice to be provided.
c. Time Limit. The moratorium, if it is enacted at the end of this process, should have a time limit and clearly state what the Town intends to do in the interim so that at the end of the time period the reasons for the moratorium will be resolved.
d. Scope of Notice. The discussion below deals with the issue of what should be included in the moratorium, based on the type of permits, status of permits and other factors, including location. Any moratorium that is ultimately enacted cannot be any broader than what the Council identifies when it calls the hearing and directs that the matter be advertised. The Council should thus consider the discussion below and include in the resolution whatever it thinks it might wish to consider covering by a proposed moratorium. The scope of the ordinance can be narrowed after advertisement and the hearing, but it cannot be broadened without going through the notice and hearing process again.
2. What are the possible justifications for a moratorium and specifically, what are the probable justifications for consideration of a moratorium under these particular circumstances.
The previously distributed materials discuss some of the potential reasons for enacting a moratorium. Some of those potential reasons (for example, a limit on sewer capacity in a particular area) are clearly inapplicable to present discussion.
Based on the Council’s discussion on January 23, the issues related to the potential for a temporary Town-wide moratorium appear to be related primarily to the continued consideration of a new Development Ordinance. Comments by Council members on January 23 indicated:
1. A comprehensive plan was recently adopted after considerable public input and had considerable public support. The Council is now seeking the same input and striving to reach a community consensus on a new Development Ordinance.
2. The Council, community and staff are making progress on finalizing that new ordinance and believe it will be a better tool. It is likely to be enacted in the next few months.
3. The Council, community and staff have all spent a considerable amount of time and energy on the new Development Ordinance. In its draft form it proposes a number of significant new standards for levels of service for roads and intersections; for stormwater; and for environmental protection. It is important for the community that these standards be implemented and that new development be designed so as to be consistent with the revised ordinance.
Other justifications may be developed and considered during the hearing process and should be included as legislative findings if, at the conclusion of the hearing process, the Council chooses to enact a moratorium.
4. To what should a moratorium be applied.
a. Type of application
i. Rezoning, subdivision, special use permit, etc.
ii. Possible exceptions for affordable housing or other special factors
b. Where a proposed development is “in the pipeline.”
c. Who is the applicant.
Much of the Council’s discussion on January 23 dealt with issues pertaining to the scope of the moratorium and its effect on certain applications or types of applications. Given the apparent reasons why the Council is now considering a moratorium, it is important that its scope be carefully considered and that any exceptions be reasonable.
a. Type of Applications. At this time, it appears that the Council is considering a Town-wide moratorium based on the need to complete work on the new Development Ordinance. Because of the broad reaching scope of the new standards being discussed in the new ordinance and their potential applicability to any type of development, the Council may wish, at least for purposes of calling the hearing, to state that the moratorium would apply to all development: rezonings, subdivisions, special use permits, site plan approval, zoning compliance permits, and building permits (with the possible exception of minor applications, for example, permits for houses or additions to houses on existing lots).
b. Exceptions. Carving out exceptions at this time for projects of special interest to the Council, such as affordable housing, could complicate the process and raise a greater potential for legal challenge. Just as the local government attorneys recently advised not excluding affordable housing from the requirements of the proposed Schools Adequate Public Facilities Ordinance, I would not recommend considering such exceptions in a moratorium, especially in light of the likely reasons that will be stated as the justifications for a moratorium.
(There is a possibility of a safety valve if a moratorium were to be enacted. Assuming a six or eight month moratorium were to be enacted in late March, someone could apply for a zoning amendment to seek relief from that moratorium for a particular project. Assuming the Council could find that such a request was justifiable and not a spot zoning, such an amendment might be possible and might be enacted, thus allowing that application to be considered. For this additional reason, I would not recommend a special exception for affordable housing or some other narrow exception be built in to any initial moratorium that is adopted.)
c. Where in Pipeline. Where a particular project is “in the pipeline” should be considered in determining the scope of any possible moratorium. Some projects underway have established recognizable vested rights under the law and thus, would be entitled to proceed under existing regulation. These include projects for which building permits have been issued (N.C.G.S. Sec. 160A-385 ); projects for which “site specific development plans” have been approved (N.C.G.S. Sec. 160A-385.1); and, under common law, projects in which an applicant has made substantial expenditure in good faith reliance on a governmental approval.
Under the Town’s Development Ordinance, a special use permit is identified as a “site specific development plan,” thus establishing vested rights. In addition, given the nature of the approval issued for the University’s Development Plan, I believe that any project covered by that Plan should also be expressly excluded from coverage of a moratorium.
d. Who is the Applicant. The Council may wish, based on where and how it establishes a cut-off, to exclude other applicants from any proposed moratorium. However, I do not believe it would be reasonable to base any exclusion solely on who the applicant is. Projects that are considered a “public necessity” or are determined to have some other special status could receive expedited treatment and individually could be removed from the moratorium, if necessary, under the “safety valve” process described above.
CONCLUSION
These materials and those provided by the Town Manager for this evening’s meeting are for the purposes of facilitating the Council’s consideration of the new Development Ordinance and the possibility of enacting a temporary moratorium while the Council concludes its work on that document. Consideration of the merits of any specific moratorium and the reasonableness of it are part of what would be considered by the Council and the community during the notice and hearing process which would need to precede enactment of such a measure.