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Land Use
University of North Carolina School of Law
Owens, David W.

Land Use Law

David Owens

(3) Authority for Zoning and Land Use Regulations

(a) Basic Constitutionality

. Eucilid, Nectow, Aydlett

Allowed to regulate land use for the health, safety, and welfare. Not static. Not takings.

. Facial and As-Applied Challenges:

. Nectow

“Split Lot” Problem: Subcategory of as-applied challenges. Each zone use may be rationale in itself, but arbitrary as applied to a site not large enough or otherwise configured so as to be unusable when divided.

(b) Presumption of Validity

. Krause

(c) Statutory Authority

. Generally: Local governments have no inherent power, can only exercise those state (police) powers that have been delegated to them by the General Assembly.

. Zoning Enabling Legislation: Grant of authority to local governments.

(d) Scope of Implied Authority

. Dillon’s Rule: It is a general and undisputed proposition of law that a municipal corporation possesses, and can exercise, the following powers, and no other: First, those granted in express words; second, those necessarily or fairly implied in, or incident to, the powers expressly granted; third, those essential to the declared objects and purposes of the corporation—not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the court against the corporation, and the power is denied.

. “Home Rule”—Allows individual municipalities to handle local maters (their internal affairs) without a specific delegation of authority from the state legislature. About half the states have constitutional provisions for home rule.

. Modifications:

(4) Legislative Decisions – Adoption, Amendment, and Repeal of Ordinances

(a) Process

. Why have? Want deliberate and thoughtful consideration. Also want to give those most affected the opportunity to voice their opinion.

. Notice:

Municipality must follow any statutory requirements imposed by the General Assembly. Any statutory requirements must be strictly adhered to. Failure to follow process in statue will render action void ab initio. (No due process requirement, only applies to adjudications)

– Actual notice for owner if initiated by third party.

– Signs

. Conduct of Hearings: (legislative hearings)

Public hearings on legislative land use regulatory decisions must be conducted in a fair and impartial manner designed to receive citizens’ comments on the substance of the proposed action.

Time limits? Legitimate when soliciting opinions.

Remember: no due process (e.g. witnesses do not need to be sworn in).

. Re-Hearing:

Additional hearing is only legally mandated if there are substantial changes in the proposal after the initial notice. Heaton v. City of Charlotte. Substantial changes factors: (1) Are the changes favorable to the complaining party? (2) Did the initial notice include the possibility of substantial change? (3) Did the changes result from objections and debate at the hearing? Id.

. Protest Petitions:

If a sufficient number of those most immediately affected by a zoning change—the owners of 20% of the land included within the rezoning or 5% of the 100-foot-wide buffer around the property to be rezoned—object to a proposed zoning amendment, the amendment may be adopted only if approved by three-fourths of all t

lause requires an evidentiary hearings in quasi-judicial decisions.

. Evidence: Decision-maker’s findings (and conclusions) must be supported by competent, material, and substantial evidence.

. Findings: Decision-maker must . . .

. Conflicts of Interest: Due process requires an impartial decision maker in Q/J determinations (not legislative hearings). No close personal relationship with applicant, no ex parte communications, no financial interest. No fixed opinion.

. Bias: (legislative and Q/J)

Brown, 113 N.C. App. 553

(b) SUP and CUP

. Generally: A conditional use district is a district where certain uses are allowed as of right but only after showing that criteria in the ordinance are met. Because these decisions involve applying legislative standards to individual applicants and findings of facts, these determinations are quasi-judicial.

. Authority:

. Adequate Guiding Standard: The criteria in the ordinance must provide the decision-maker with an adequate guiding standard. Relatively general standards have been upheld. See Kenan.

. Burden of Proof: Typically the burden of proof is on the applicant to establish that the development meets the criteria in the ordinance. Once such evidence has been presented, the burden shifts to those in opposition. With respect to general standards there may be a rebuttable presumption of compliance.