January 30, 2023

Volume XIII, Number 30


January 27, 2023

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NCGS Chapter 160D is the New Law of the Land (Planning and Development Regulations) – Highlights for Development Professionals

Land use regulation in North Carolina will be modernized for the first time in decades when the new Chapter 160D of the North Carolina General Statutes effectuates on July 1st. The new Chapter 160D consolidates the current statutes for development regulations (now 153A and 160A for counties and cities, respectively), and local governments across the state are underway updating its ordinances to conform with the new chapter. 

Those in the development community should be aware of a few important changes that could affect existing approvals or proposed zoning entitlements. 160D includes the notable following changes:

  • “Conditional Use Zoning” is replaced with “Conditional Zoning” – a minor grammatical but major procedural change.

    • “Conditional Use Zoning” is when a rezoning (legislative decision) and conditional use permit (quasi-judicial decision) were required in conjunction with one another to allow for zoning amendments with site-specific conditions.

    • A rezoning with conditions is now "Conditional Zoning", a solely legislative decision. Any property with a prior “Conditional Use Zoning” approval is now converted to a “Conditional Zoning”.

  • Zoning Amendment petitioner need to consent in writing to any conditions of approval in a Conditional Zoning decision.

    • This encourages crafting conditions of approval prior to review by decision-makers, and can help avoid crafting conditions of approval verbally 'on the fly' at a hearing.

  • Third party down-zoning petitions are prohibited.

    • The property owner’s written consent is required.

  • Distinguishes between Legislative Hearing and an Evidentiary Hearing types.

    • This distinction is important to crystallize procedural differences for application types that require different hearings e.g. Special Use Permit requires an Evidentiary Hearing; Rezoning requires a Legislative Hearing.

  • Specifically authorizes Minor Modifications to development approvals – these are modifications to development approvals that can be exempted or administratively approved.

    • What constitutes a Minor Modifications to a development approval must be defined and authorized by local regulation.

    • A change in permitted uses or the density of overall development may not be a minor modification to a Conditional Zoning or Special Use Permit. 

  • Clarifies that development approvals "run with the land", eliminating complications or confusions of change of property ownership, tenancy, or permittee.

The provisions of 160D will apply beginning on July 1st independent of whether a locality has updated its development ordinance. This is important for development applicants to have a deep understanding of their rights and the applicable processes in accordance with 160D in the case that the locality has not updated its ordinance. Many local governments are also using the 160D update process as an opportunity to substantially re-write its development ordinances beyond just conformance with 160D. Current development applicants should also be on the lookout for ordinance re-write efforts or text amendment applications that may be processed concurrently with their applications.

Copyright © 2023 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume XI, Number 27

About this Author

John Cooke, Real Estate Attorney, Womble Carlyle, land owners lawyer, public-private agreements legal counsel, entitlements law

John has more than 30 years of experience in land use law and real estate litigation. Based in the Raleigh-Durham region, John practices throughout North Carolina. He represents all types of business clients - developers, end users and land owners - when they attempt to use their land or maximize its value through securing entitlements, forming public-private agreements or handling litigation.

Because John represents private clients as well as local governments, he has an understanding of the economic and policy issues which influence...

Michael C Thelen, Womble Carlyle, Real Estate Litigation Attorney, Entitlement Negotiations Lawyer

Mike represents myriad clients – from Fortune 500® companies to smaller, privately-owned organizations – in cross sections of business throughout the many stages of federal and state litigation.  From his years of practice in New York and North Carolina, Mike primarily has experience in the areas of land use, local/municipal government law and real estate litigation, having handled zoning, development agreement, land use planning, eminent domain and condemnation, construction, retail and commercial landlord-tenant, partnership dissolution, state law torts, and civil fraud matters, to list...