Large Tracts of Land Not Immune from Zoning Regulation

Regulating large tracts of land through the use of zoning ordinances just got a little easier for local governments. On September 1, 2009 the North Carolina Court of Appeals issued a decision in Tonter Investments, Inc. v. Pasquotank County, __ N.C. App. __, 681 S.E.2d 536 (2009) and the North Carolina Supreme Court denied Plaintiff’s Petition for Discretionary Review on November 5, 2009. The primary issue in the case was whether parcels that exceed ten (10) acres in size, which are exempt from subdivision regulations under G.S. § 153A-335(a), are subject to zoning ordinances that seek to, among other things, regulate road frontage and public water proximity for newly created lots.

The case stems from zoning ordinances adopted by Pasquotank County (“County”) that (1) prohibited residential uses in the County’s Agricultural-2 zoning district; and (2) required newly created lots to have a minimum of twenty-five (25) feet of road frontage and be located within 1,000 feet of a public water supply before construction could be commenced on any lot. As applied to three large tracts of land owned by the Plaintiff, the ordinances prohibited the Plaintiff from developing any residential structures on any of the three tracts. The Plaintiff argued that the zoning ordinances were outside the authority granted to counties pursuant to their zoning power and were an attempt to circumvent G.S. § 153A-335(a) that allows tracts larger than 10 acres to be exempt from subdivision regulation. The County argued that subdivision requirements must be met prior to the recordation of a subdivision plat dividing tracts into smaller parcels. The ordinances at issue, however, were adopted pursuant to the County’s zoning authority which requires compliance with zoning regulations prior to the issuance of a building permit. The thrust of the County’s argument was that the new zoning ordinance did not prevent the Plaintiff from subdividing its property rather only prevented the Plaintiff from building anything on it until it could meet the road frontage and public water proximity requirements. Therefore, the County argued that the zoning ordinances are squarely within the county’s zoning authority under G.S. § 153A-340.

In affirming the Superior Court, the Court of Appeals agreed with the County’s arguments holding that the road frontage requirement and water proximity requirement “deals precisely with the zoning authority granted to counties by section 153A-340(a)” and the ordinance “does not contradict the General Assembly’s intent to prevent lots larger than ten acres from facing subdivision regulation.” Tonter Investments, Inc., 681 S.E.2d at 539. Furthermore, the Court noted that the removal of residential uses from the Agricultural-2 zoning district was not inconsistent with the General Assembly’s exemption of ten-acre lots from subdivision regulation and that counties clearly have the authority under G.S. § 153A-342 to create zoning districts and determine which uses are most appropriate in each district.

The Tonter case provides local governments with the necessary legal authority to adopt zoning ordinances to help regulate the development of large tracts of land. Without these types of zoning ordinances, parcels could be divided into lots greater than ten acres and buildings or residences constructed on them, without the developer providing any roads or other infrastructure necessary for the public’s health, safety and welfare. The Tonter decision is primarily a tool for rural counties that have significant amounts of farmland or other large tracts of land.