New State Law Means Raleigh City Council's Zoning Decisions Could Come Back to Haunt Them | News
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Wednesday, January 3, 2018

New State Law Means Raleigh City Council's Zoning Decisions Could Come Back to Haunt Them

Posted by on Wed, Jan 3, 2018 at 8:07 PM

Members of the state General Assembly decided in their last session that if Raleigh City Council, or any other local North Carolina governing body, decides to color outside the lines when making a zoning decision, the change will become part of city code.

In planning jargon, that means if the council approves a land use that doesn't jibe with the city's comprehensive plan, the change becomes an amendment to the plan. In plainer language, the council can be stuck with a single decision they've made when deciding future cases.

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One of many examples of the General Assembly's reaching down to instruct local governments, the law was sponsored by three Republicans: Senator Andy Wells, from Hickory; Senator Bill Cook, representing eight eastern counties; and Senator Norman W. Sanderson, representing Carteret, Craven, and Pamlico counties.

Raleigh City Council members heard about the zoning section of the new law Tuesday night from Ken Bowers, the city planning director. A forty-four-page document billed as easing all sorts of regulatory restraints, the law was passed in May and went into effect in October.

Its passage means that when a zoning case comes before the panel, members have three choices. First, they can approve the zoning and say it's consistent with the comprehensive plan. Second, they can reject a proposal as inconsistent and make a finding that says so.

The third choice is the tricky one, the kind of vote that could arise to greet members again in the long term.

"If you decide you wish for whatever reason to approve a case that's demonstrably different from the comprehensive plan … you are in effect, under the new law, amending the comprehensive plan at the same time," Bowers said.

Council member Kay Crowder joked that she'd read the law eight times but still had questions: "If the council should approve something that's inconsistent with the future land use map … does that mean that if we say yes to that, that then changes the policy in the comprehensive plan for everything moving forward?" she asked.

"Yes," Bowers said. "Staff's opinion … is that this is going to raise the bar for approving inconsistent uses, because they are no longer one-offs; you are essentially enshrining the deviation."

The law means that council members lose flexibility and will have to examine the fallout from votes that can result in changes in written policy.

For example: "There is a policy that says you can't do large-format retail unless you're at the intersection of two big streets," Bowers said.

Allowing a large-format store somewhere other than at such an intersection would mean getting rid of that policy, unless the council declared that it met the dictates of the overall plan as a special exception. Council members wanted to know whether the planning commission or the council would have the ultimate say in whether a change was deemed in line with their own plan.

"I'm confused on who's doing the deeming," council member Corey Branch said. "The council will do the deeming?"

Bowers agreed: "In all cases, the council ultimately does the deeming."

And David Cox wanted to know what the chances were that decisions made under the new law would face legal challenges.

"All I can say is that a zoning is a policy decision and the governing body has broad discretion," Bowers said.

Branch suggested that the council and planning commission have a joint work session to address the changes wrought by the law. That idea joined a list of other topics that members would like to deal with in such informal meetings.

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