/>iTraditionally, “down-zoning” referred to changes in zoning that reduced the intensity of land use – such as a switch from commercial to residential zoning. As with any general district zoning effort, historically in North Carolina, a down-zoning of property can be initiated by any person, including a neighbor, the owner of the property, or by the local government with zoning jurisdiction over the property. If a property owner took issue with an involuntary down-zoning in a court proceeding – such as one pursued by a neighbor or a local government, which is a rare occurrence – the down zoning was generally upheld as a legislative decision, but legal claims of regulatory taking or substantive due process could be sought to provide relief.
Notably and historically, “down-zoning” was not given specific reference in North Carolina statutory law. This changed in 2019, when State law was amended to specifically reference and define “down-zoning” to be any zoning that either (i) “decreas[es] the development density of the land” allowed under existing zoning or (ii) “reduc[es] the permitted uses of the land” allowed under existing zoning. S.L. 2019-111. This definition of “down-zoning” means that, technically, any change to zoning laws to reduce density or reduce uses – including changes to the text of zoning laws, not just changes to zoning maps – is a “down-zoning.” And that is very, very broad. With that change, State law forbids so called “neighbor” down-zoning proceedings where amendments to zoning maps or regulations decrease density or reduce permitted uses on the property owned by another without the property owner’s written permission. Under the 2019 law, all existing zoning regulations remained “subject to amendment or repeal at the will of the governing agency which created it.” McKinney v. City of High Point (emphasis added).
This changes with the New Law, known colloquially as the Hurricane Helene Relief Bill. Buried (some might say, “strategically buried”) at the tail end of this 132-page Relief Bill are revisions to the “down zoning” law in Section 160D-601(d), which revisions accomplish two incredibly significant things: (i) the New Law adds to the already broad definition of “down zoning” and, more notably, (ii) the New Law now requires that even local government must obtain written consent of any and all owners of “down zoned” property. Simply, down-zoning as defined by the New Law cannot be initiated at the will of governing agency that created the law. Instead, turning precedent on its head, all property owners have “acquire[d] a vested right therein” which cannot be modified at the will of local governments.
What might this new law mean?
Let us put all of this together. The New Law requires that any zoning change that (i) decreases the development density of the land, (ii) reduces the permitted uses of the land allowed under existing zoning, or (iii) creates any kind of non-residential nonconformity would require the written consent of each and every affected property owner.
We believe it is difficult, if not impossible, to understate the impact of the New Law on day-to-day zoning practices and land development. Prior to the New Law, “[t]he police power, upon which zoning ordinances must rest, permits such restriction upon the right of the owner of a specific tract, when the legislative body has reasonable basis to believe that it will promote the general welfare by conserving the values of other properties and encouraging the most appropriate use thereof.” Blades v. City of Raleigh, 280 N.C. 531, 546, 187 S.E.2d 35, 43 (1972) (emphasis added). Contrary to this precedent, the New Law effectively creates a contractual relationship between local governments and property owners, requiring mutual consent for changes.
The clear intention of this change is that local governments should not be allowed to so plan and so manage without the written consent of all impacted property owners, because protection of the private property right to develop and use one’s own property is tantamount. But curiously, the General Assembly continues to mandate that “as a condition of adopting and applying zoning regulations,” each local government, at considerable expense and effort, “shall adopt and reasonably maintain a comprehensive plan or land-use plan.” N.C.G.S. § 160D-501(a).
We believe the New Law will be challenging for all. Local governments and property owners (perhaps ironically) will live with regulatory rigidity with limited authority to change zoning regulations. Local governments may face difficulties in adapting zoning regulations, and property owners might experience delays or obstacles in common-sense or other desirable changes to zoning laws.
Also, creativity and uncertainty will flourish. Elected representatives will grapple with complying with the New Law while being responsive to their constituents. Courts will revisit and change decades of precedents and be tasked with interpreting and applying the New Law to specific disagreements.
Land use and development in North Carolina will not be dull.
Jordan Love also contributed to this client alert.
