GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2015
H 2
HOUSE BILL 483
Committee Substitute Favorable 4/28/15
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Short Title: Land‑Use Regulatory Changes. |
(Public) |
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Sponsors: |
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Referred to: |
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April 2, 2015
A BILL TO BE ENTITLED
AN ACT to make changes to the land‑use regulatory laws of the State.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 143‑755 reads as rewritten:
"§ 143‑755. Permit choice.
(a) If a permit applicant submits a permit for any type of development and a rule or ordinance changes between the time the permit application was submitted and a permit decision is made, the permit applicant may choose which version of the rule or ordinance will apply to the permit.
(b) This section applies to all development permits
issued by the State and by local governments.government, including
any zoning permit.
(c) This section shall not apply to any
zoning permit."
SECTION 2. G.S. 160A‑385(b) reads as rewritten:
"(b) Amendments in land development regulations,
as defined in G.S. 160A‑400.21(6), including zoning ordinances or
unified development ordinances, shall not be applicable or enforceable
without the written consent of the owner with regard to buildings and
usesbuildings, uses, or developments for which either (i) a
zoning permit, which includes, but is not limited to, a site plan approval, a
special exception permit, or any other permit or approval given under the
authority of Article 19 of Chapter 160A of the General Statutes that authorizes
the use of land, or (ii) a building permits havepermit has
been issued pursuant to G.S. 160A‑417this Chapter
prior to the enactment of the ordinance making the change or changes so long as
the permits remaineither permit remains valid and unexpired pursuant
to G.S. 160A‑418 and unrevoked pursuant to G.S. 160A‑422
or (ii)law. Amendments shall also not be applicable or enforceable
without the written consent of the owner if a vested right has been
established pursuant to G.S. 160A‑385.1 and such vested right
remains valid and unexpired pursuant to G.S. 160A‑385.1.or
if a vested right is established by the terms of a development agreement
authorized by Part 3D of this Article."
SECTION 3. G.S. 153A‑344(b) reads as rewritten:
"(b) Amendments in land development regulations,
as defined in G.S. 153A‑349.2(6), including zoning ordinances or
unified development ordinances, shall not be applicable or enforceable
without the written consent of the owner with regard to buildings and
usesbuildings, uses, or developments for which either (i) a
zoning permit, which includes, but is not limited to, a site plan approval, a
special exception permit, or any other permit or approval given under the
authority of Article 18 of Chapter 153A of the General Statutes that authorizes
the use of land, or (ii) a building permits havepermit has
been issued pursuant to G.S. 153A‑357this Chapter
prior to the enactment of the ordinance making the change or changes so long as
the permits remaineither permit remains valid and unexpired pursuant
to G.S. 153A‑358 and unrevoked pursuant to G.S. 153A‑362
or (ii)law. Amendments shall also not be applicable or enforceable
without the written consent of the owner if a vested right has been
established pursuant to G.S. 153A‑344.1 and such vested right
remains valid and unexpired pursuant to G.S. 153A‑344.1.or
if a vested right is established by the terms of a development agreement
authorized by Part 3A of this Article."
SECTION 4. Part 3 of Article 19 of Chapter 160A of the General Statutes is amended by adding a new section to read:
"§ 160A‑393.1. Civil action for declaratory relief, injunctive relief, or other remedies.
(a) Action for Relief Authorized. – Any landowner, permit applicant, or tenant aggrieved by a final and binding decision of an administrative official involving the application or enforcement of a city or county zoning or unified development ordinance or any other ordinance that regulates land use or development may, in lieu of an appeal to a board of adjustment prescribed by Chapter 153A or Chapter 160A of the General Statutes, maintain an original action in superior court or business court for declaratory relief, injunctive relief, damages, or any other remedies provided by law or equity, where any of the following claims or defenses are asserted by the aggrieved party:
(1) Constitutional matters.
(2) Ultra vires regulations.
(3) Preemption.
(4) 42 U.S.C. § 1983.
(5) Common law vested rights.
In such original action, the aggrieved party may, in addition to the above, raise any other available claims or defenses, including asserting error in the interpretation of an ordinance.
(b) Time for Filing of Action. – Such action shall be filed within one year after the later of the following occurrence: (i) notice of the decision as provided in G.S. 160A‑388(b1)(2) or (ii) where a taking of property is alleged by the aggrieved party, the final decision of a board of adjustment denying a variance has been delivered as provided in G.S. 160A‑388(e2)(1), whenever the context makes the granting of such variance discretionary and not prohibited.
(c) Means for Obtaining Relief. – Except for exhausting the administrative remedy of a variance, if applicable, as provided in this section, once the aggrieved party selects an appeal to a board of adjustment as provided in G.S. 160A‑388(b1) and the prescribed hearing proceeding is concluded, such procedures, including an appeal thereafter in G.S. 160A‑393, shall be the exclusive means for obtaining relief as to the merits of the city or county enforcement action or administrative decision being challenged. Nothing herein shall preclude any other procedure authorized by law for claims arising under 42 U.S.C. § 1983."
SECTION 5. G.S. 160A‑364.1(c) reads as rewritten:
"(c) Nothing in this section or in G.S. 1‑54(10) or G.S. 1‑54.1 shall bar a party in an action involving the enforcement of a zoning or unified development ordinance or in an action authorized by G.S. 160A‑393.1 from raising as a defense to such enforcement action the invalidity of the ordinance. Nothing in this section or in G.S. 1‑54(10) or G.S. 1‑54.1 shall bar a party who files a timely appeal from an order, requirement, decision, or determination made by an administrative official contending that such party is in violation of a zoning or unified development ordinance from raising in the appeal the invalidity of such ordinance as a defense to such order, requirement, decision, or determination. A party in an enforcement action or appeal may not assert the invalidity of the ordinance on the basis of an alleged defect in the adoption process unless the defense is formally raised within three years of the adoption of the challenged ordinance."
SECTION 6. G.S. 160A‑393 reads as rewritten:
"§ 160A-393. Appeals in the nature of certiorari.
…
(j) Hearing on the Record. – The court shall hear and decide all issues raised by the petition by reviewing the record submitted in accordance with subsection (h) of this section. Except that the court may, in its discretion, allow the record to be supplemented with affidavits, testimony of witnesses, or documentary or other evidence if, and to the extent that, the record is not adequate to allow an appropriate determination of the following issues:
(1) Whether a petitioner or intervenor has standing.
(2) Whether, as a result of impermissible conflict as described in G.S. 160A‑388(e)(2), or locally adopted conflict rules, the decision‑making body was not sufficiently impartial to comply with due process principles.
(3) Whether the decision‑making body erred for the
reasons set forth in sub‑subdivisions a. and b. of subdivision (1) of
subsection (k) of this section.section, including an error related to
the claims or defenses in subdivision (k)(4) of this section.
(k) Scope of Review. –
(1) When reviewing the decision of a decision‑making board under the provisions of this section, the court shall ensure that the rights of petitioners have not been prejudiced because the decision‑making body's findings, inferences, conclusions, or decisions were:
a. In violation of constitutional provisions, including those protecting procedural due process rights.
b. In excess of the statutory authority conferred upon the city or the authority conferred upon the decision‑making board by ordinance.
c. Inconsistent with applicable procedures specified by statute or ordinance.
d. Affected by other error of law.
e. Unsupported by substantial competent evidence in view of the entire record.
f. Arbitrary or capricious.
(2) When the issue before the court is whether the decision‑making board erred in interpreting an ordinance, the court shall review that issue de novo. The court shall consider the interpretation of the decision‑making board, but is not bound by that interpretation, and may freely substitute its judgment as appropriate.
(3) The term "competent evidence," as used in this subsection, shall not preclude reliance by the decision‑making board on evidence that would not be admissible under the rules of evidence as applied in the trial division of the General Court of Justice if (i) the evidence was admitted without objection or (ii) the evidence appears to be sufficiently trustworthy and was admitted under such circumstances that it was reasonable for the decision‑making board to rely upon it. The term "competent evidence," as used in this subsection, shall not be deemed to include the opinion testimony of lay witnesses as to any of the following:
a. The use of property in a particular way would affect the value of other property.
b. The increase in vehicular traffic resulting from a proposed development would pose a danger to the public safety.
c. Matters about which only expert testimony would generally be admissible under the rules of evidence.
(4) The petitioner may assert and the court shall determine de novo, based on the record in subsection (j) of this section, any of the following claims or defenses:
a. That the applicable ordinance is invalid or otherwise unenforceable.
b. Constitutional matters.
c. Preemption.
d. 42 U.S.C. § 1983.
e. Common law vested rights.
(5) In order to raise any of the claims or defenses listed in subdivision (4) of this subsection, to the extent that they do not involve some act of the decision‑making board itself or any of its members, the claim or defense shall be made known to the decision‑making board at the hearing.
…."
SECTION 7. Part 3 of Article 19 of Chapter 160A of the General Statutes is amended by adding a new section to read:
"§ 160A‑393.2. No estoppel effect when challenging unlawful conditions.
No landowner or permit applicant shall be precluded from timely challenging any unlawful condition imposed on a development as part of the application of land development regulations as defined in G.S. 160A‑400.21(6) as a result of actions by the landowner or permit applicant to proceed with the development or use."
SECTION 8. G.S. 6‑21.7 reads as rewritten:
"§ 6‑21.7. Attorneys' fees; cities or counties acting outside the scope of their authority.
In any action in which a city or county is a party, upon a
finding by the court that the city or county acted outside the scope of its
legal authority,violated a statute setting forth clear limits on its
authority, the court mayshall award reasonable attorneys'
fees and costs to the party who successfully challenged the city's or county's action,
provided that if the court also finds that the city's or county's action was an
abuse of its discretion, the court shall award attorneys' fees and costs.action.
In all other matters, the court may award reasonable attorneys' fees and costs
to the prevailing party."
SECTION 9. G.S. 6‑19.1 reads as rewritten:
"§ 6‑19.1. Attorney's fees to parties appealing or defending against agency decision.
(a) In any civil action, other than an adjudication
for the purpose of establishing or fixing a rate, or a disciplinary action by a
licensing board, brought by the State or brought by a party who is contesting
State action pursuant to G.S. 150B‑43 or any other appropriate
provisions of law, unless the prevailing party is the State, the court may,
in its discretion,shall allow the prevailing party to recover
reasonable attorney's fees, including attorney's fees applicable to the
administrative review portion of the case, in contested cases arising under
Article 3 of Chapter 150B,150B of the General Statutes, or any other
provision of law, to be taxed as court costs against the appropriate agency
if:
(1) The court finds that the agency acted without
substantial justification in pressing its claim against the party;party.
The lack of substantial justification shall be conclusively established when an
agency acts in violation of a statute setting forth clear limits on its authority;
and
(2) The court finds that there are no special circumstances that would make the award of attorney's fees unjust. The party shall petition for the attorney's fees within 30 days following final disposition of the case. The petition shall be supported by an affidavit setting forth the basis for the request.
Nothing in this section shall be deemed to authorize the assessment of attorney's fees for the administrative review portion of the case in contested cases arising under Article 9 of Chapter 131E of the General Statutes.
Nothing in this section grants permission to bring an action against an agency otherwise immune from suit or gives a right to bring an action to a party who otherwise lacks standing to bring the action.
Any attorney's fees assessed against an agency under this section shall be charged against the operating expenses of the agency and shall not be reimbursed from any other source.
(b) Expired."
SECTION 10. This act becomes effective October 1, 2015, and applies to permit applications filed, actions filed in court, and claims and defenses asserted on or after that date.