Local Powers for Land Use Regulation

Local Land Use Powers

• Land use regulation is considered a residual power– In most circumstances, that is…

– Power enacted through state statute

– Statutes must be consistent with federal and state constitutions

– States delegate powers to localities (counties, cities, towns)

• Regulatory power may be mandatory

• Regulatory power may be voluntary

Local Land Use Powers

• Local gov’t receives power through state statutes– The power is to create and enforce local ordinances

– Ordinances must meet or exceed existing laws, providing measures are constitutional

– Localities only have the powers granted to them by statute

• Again, Home Rule vs. Dillon’s Rule

Local Land Use Powers

• In North Carolina– Comes primarily from

• Section 160A (cities and towns) of the state statutes

• Section 153A (counties) of the state statutes

– Other areas also addressed in statutes

• Transportation

• Community & economic development

• Natural resource protection

• State & regional planning agencies

Local Land Use Powers

• Spatial Extent of Planning Powers– Counties

• Within boundaries of counties

• Within town and city boundaries with permission

– Cities

• Within corporate limits

• Within extra-territorial jurisdiction (“ETJ”)

Extraterritorial Jurisdiction

Extraterritorial Jurisdiction

Local Land Use Powers

• Extra-Territorial Jurisdiction– The extension of land use regulation powers outside the

corporate limits of a city or town

– May extend only into county land

– No other powers (or responsibilities) are allowed

– Residents of ETJ

• Still county residents

• Still county voters & taxpayers (no city/town obligations)

• Maintain a voice on city/town planning & zoning boards

Local Land Use Powers

• Increased demand for roads, water, sewer, utilities, schools, and various other services necessary to support development

• Fiscal implications for cities, counties, and landowners

• Environmental impacts, ranging from the effects of stormwater runoff on water quality to changes in air quality due to increased automobile use

• Implications for farmland preservation

• Dramatic changes in the social and cultural character of affected areas

Local Land Use Powers

• ETJ– Size affected by size of city

• < 10,000 = 1 mile limit

• 10,000 – 25,000 = 2 mile limit

• > 25,000 = 3 mile limit

– Determined primarily by growth trajectory

• Precursor to annexation

• Laying the groundwork for land use activity in areas likely to be annexed

Local Land Use Powers

Local Land Use Powers

Local Land Use Powers

• ETJ requirements– Adopt an ordinance

• Boundary description

• Notification

• Get agreement from County (if ETJ > 1 mile)

– File boundary map

– Amend city/town zoning ordinance

– Appoint ETJ members

Land Use Decision Making

• Legislative• Administrative• Advisory• Quasi-Judicial

Land Use Decision Making

• Legislative Decisions– Affect entire community

– Decisions on ordinance

• Adoption, amendment, repeal

– Statutes mandate maximum public notice & opportunity for involvement

– Decisions are made by elected body

• Town/City council

• County commissioners

Land Use Decision Making

• Administrative Decisions– Made primarily by planning staff

• Planners, zoning officers

– Administers the ordinances enacted by legislative body

– Enforces ordinances enacted by legislative body

– Has very little discretion in carrying out duties

Land Use Decision Making

• Advisory Decisions– Planning Staff, Planning Commission

– Provides input to other decision making bodies

– Advice can be followed, amended or ignored

– Planning Staff

• Planning commission, Board of Adjustment

– Planning Commission

• Board of Adjustment, City Council

Land Use Decision Making

• Quasi-Judicial Decisions– Usually Board of Adjustment (BOA)

• Although, sometimes it may be planning commission or legislative body

– BOA interprets ordinance given issue in front of it

• Special & Conditional Use permits

• Variances

• Appeals of administrative decisions

– Rules of evidence & procedure apply

– Decisions must be public

– Decisions can be appealed only to Superior Court