HomeMy WebLinkAboutAgenda - 02-27-2012 - C91
ORANGE COUNTY
BOARD OF COMMISSIONERS AND
PLANNING BOARD
QUARTERLY PUBLIC HEARING
ACTION AGENDA ITEM ABSTRACT
Meeting Date: February 27, 2012
Action Agenda
Item No. C -9
SUBJECT: Review of Proposed UDO Text Amendment — Modification of Appeals Language
DEPARTMENT: Planning and Inspections PUBLIC HEARING: (YIN) I Yes
ATTACHMENT(S): INFORMATION CONTACT:
1. Unified Development Ordinance (UDO) Michael D. Harvey, Planner III 245 -2597
Amendment Outline Form (UDO /Zoning- Craig Benedict, Director 245 -2575
2012 -04)
2. Session Law 2011 -384
3. Proposed UDO amendment
PURPOSE: To hold a public hearing on a Planning Director initiated UDO text amendment to
Section 2.24.5 9 (B) modifying the statute of limitations for appealing BOCC decisions
concerning legislative items. For additional detail please refer to Attachment 1.
BACKGROUND: Please refer to Attachment 1.
FINANCIAL IMPACT: Please refer to Section C.3 of Attachment 1.
RECOMMENDATION: The Planning Director recommends the Board:
1. Receive the proposed amendments as detailed herein.
2. Conduct the public hearing and accept public, BOCC, and Planning Board comment on
the proposed amendments.
3. Refer the matter to the Planning Board with a request that a recommendation be returned
to the BOCC in time for the April 17, 2012 BOCC regular meeting.
4. Adjourn the public hearing until April 17, 2012 in order to receive and accept the
Planning Board's recommendation and any submitted written comments.
Attachment 1
3
COMPREHENSIVE PLAN / FUTURE LAND USE MAP
AND
UNIFIED DEVELOPMENT ORDINANCE (UDO)
AMENDMENT OUTLINE
LIDO / Zoning- 2012 -04
Amendment(s) addressing the statute of limitations for the appeal of BOCC decisions
A. AMENDMENT TYPE
Map Amendments
❑ Land Use Element Map:
From: ---
To: - - -
❑ Zoning Map:
From: - - -
To: - - -
❑ Other:
Text Amendments
❑ Comprehensive Plan Text:
Section(s):
® UDO Text:
❑UDO General Text Changes
®UDO Development Standards
®UDO Development Approval Processes
Section(s): Section(s) 2.24.5 (B)
❑ Other:
B. RATIONALE
1. Purpose /Mission
In accordance with the provisions of Section 2.8 Zoning Atlas and Unified
Development Ordinance Amendments of the UDO, the Planning Director has
initiated a text amendment to modify existing language establishing the rights of local
citizens to appeal land use decisions by the County.
On June 27, 2011 the North Carolina General Assembly adopted Session Law 2011-
1
4
384 (Attachment 2) modifying the statute of limitations for the appeal of local
government decisions.
1. Analysis
The amendment is necessary to incorporate recent modifications to State law
concerning the rights of local citizens to appeal decisions by the local governing
board (Board of County Commissioners) from a legislative (i.e. text amendment,
rezoning, etc.) perspective. This would include the legislative (i.e. rezoning)
component of Conditional District applications.
It should be noted that staff has concerns over the implications over the recently
adopted language and is working with other local governments and professional
organizations to articulate these concerns to members of the General Assembly.
Unfortunately we cannot delay this amendment in order wait to see if these actions
will be successful.
The wording of the proposed amendment (Attachment 3 of the packet) has been
reviewed and approved by the County Attorney's office.
2. Comprehensive Plan Linkage (i.e. Principles, Goals and Objectives)
This is a house keeping item in order to ensure local regulations are consistent with
recently modified State regulations. There is no direct link to the Comprehensive
Plan for these amendments.
3. New Statutes and Rules
Session Law 2011 -384 revises several sections of the North Carolina General
Statutes changing the statute of limitations for various local government decisions.
C. PROCESS
1. TIMEFRAME /MILESTONES /DEADLINES
a. BOCC Authorization to Proceed
November 1, 2011
b. Quarterly Public Hearing
February 27, 2012
c. BOCC Updates /Checkpoints
February 7, 2012 — approval of legal advertisement
April 17, 2012 — receive Planning Board recommendation
d. Other
2
2. PUBLIC INVOLVEMENT PROGRAM
Mission /Scope: Public Hearing process consistent with NC State Statutes and
Orange County ordinance requirements
a. Planning Board Review:
5
January 4, 2012 — Ordinance Review Committee (ORC). There were no
comments made by Board members over the proposal at the meeting.
March 7, 2012 (recommendation)
b. Advisory Boards:
c. Local Government Review:
d. Notice Requirements
Legal advertisement will be published on February 15, and 22, 2012
e. Outreach:
❑ General Public: Consistent with NC General Statutes and Orange County
Ordinance requirements.
❑ Small Area Plan Workgroup:
❑ Other:
3. FISCAL IMPACT
Consideration and approval will not create the need for additional funding for the
provision of County services. Costs for the required legal advertisement will be paid
from FY2011 -12 Departmental funds budgeted for this purpose. Existing Planning
staff included in the Departmental staffing budget will accomplish the work required
to process this amendment.
D. AMENDMENT IMPLICATIONS
As required under Section 2.8.5 of the Unified Development Ordinance, the Planning
Director is required to: `cause an analysis to be made of the application and, based upon
that analysis, prepare a recommendation for consideration by the Planning Board and
the Board of County Commissioners'.
This amendment is necessary to incorporate recent revisions to State law.
The act creates a situation where locally adopted regulations will be subject to juridical
review and appeal for a far longer period of time that previous statutes allowed.
3
0
The new law has the following impact:
1. Adoption of Ordinances modifying the County Zoning Atlas, the statute of
limitations on submitting the appeal has been lengthened from 30 to 60 days.
2. The law lengthens the statute of limitations from 2 months to 3 years for suits
alleging irregularities in ordinance adoption and clarifies that the timeline to
appeal begins from the date of ordinance adoption.
3. With respect to contesting the validity of text amendments, the statute of
limitations to file an appeal is extended from 2 months to 1 year. However, the
General Assembly has included language indicating that the `period of appeal'
does not even begin to run until the party, typically the property owner, "first has
standing to challenge the ordinance."
From staff's standpoint this practically extends the ability for an appeal to be filed
in perpetuity.
4. A final modification allows individuals to challenge the validity of an ordinance
during appeals of enforcement actions regardless of how many years has passed
since the ordinance was adopted. -Prior to the adoption of this law, North Carolina
case law has held that a violator may not raise the possible invalidity of the
ordinance violated as a defense to an enforcement action. This is no longer the
case.
E. SPECIFIC AMENDMENT LANGUAGE
Please refer to Attachment 3
Primary Staff Contact:
Michael D. Harvey
Planning
(919) 245 -2597
mharvey @co.orange.nc.us
4
Attachment 2
7
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2011
SESSION LAW 2011 -384
HOUSE BILL 806
AN ACT CHANGING THE STATUTE OF LIMITATIONS AND REPOSE FOR
CHALLENGING ZONING ORDINANCES, CLARIFYING THE APPLICABILITY OF
THE STATUTE OF LIMITATIONS TO ENFORCEMENT ACTIONS OR
ADMINISTRATIVE APPEALS, AND TO PROHIBIT SPECIFIED ZONING
ORDINANCES AFFECTING SINGLE - FAMILY DETACHED RESIDENTIAL USES
ON LOTS GREATER THAN TEN ACRES IN AGRICULTURAL ZONING DISTRICTS.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 1 -54 is amended by adding a new subdivision to read:
"M Actions contesting the validity of any zoning or unified de
SECTION 2. G.S. 1 -54.1 reads as rewritten:
"§ 1 -54.1. Two months.
Within two months an action contesting the validity of any zening ordinance adopting or
amending a zoning map or approving a special use, conditional use, or conditional zoning
district rezoning request amendment thereto adopted by a eeuf``-under Part 3 of Article 18 of
Chapter 153A of the General Statutes or Part
3 of Article 19 of Chapter 160A of the General Statutes or other applicable law. Such an action
accrues unon adoption of such ordinance or amendment."
SECTION 3. G.S. 153A -348 reads as rewritten:
"§ 153A -348. Statute of limitations.
(a) A cause of action as to the validity of any zoning ordin nee amendment ti. °t°
conditional zoning district rezoning request adopted under this Part or other applicable law
shall accrue upon adoption of the o- amendment therete, such ordinance and shall be
brought within two months as provided in G. S. 1 -54.1.
imnm7i
SECTION 4. G.S. 160A -364.1 reads as rewritten:
"§ 160A- 364.1. Statute of limitations.
Ua,� A cause of action as to the validity of any ,
ordinance adopting or amending a zoning man or apnroving a special use,_ conditional use, or
conditional zoning district request adopted under this Article or other applicable law shall
accrue upon adoption of the - ee, or afneadment +h°r ° + °, such ordinance and shall be
brought within two months as provided in G. S. 1 -54.1.
basis of an alleged Jett in the adoption process unless the detense is tormaliy raised within
three years of the adoption of the challenged ordinance."
SECTION 5. G.S. 153A -340 is amended by adding a new subsection to read:
An ordinance adopted pursuant to this section shall not prohibit single - family
detached residential uses constructed in accordance with the North Carolina State Building
on lots
or i
in
uire
SECTION 6. The LRC, in consultation with the NC Home Builders Association
and NC Association of County Commissioners, shall study the extent to which counties shall
be able to require that lots exempt from county subdivision regulations must be accessible to
emergency services providers, along with any issues deemed relevant by the LRC. The LRC
may provide an interim report, including any recommendations and any legislative proposals to
the General Assembly by May 1, 2012, and shall provide a final report, including any
recommendations and any legislative proposals to the General Assembly by January 15, 2013.
Page 2 Session Law 2011 -384 SL2011 -0384
SECTION 7. This act becomes effective July 1, 2011, but the provisions of
Sections 1 through 4 of this act, to the extent they effect a change in existing law, shall not
apply to litigation pending on that date. Upon the effective date, any ordinance provision that
is inconsistent with the provisions of Section 5 of this act shall be void and unenforceable.
In the General Assembly read three times and ratified this the 17th day of June,
2011.
s/ Walter H. Dalton
President of the Senate
s/ Thom Tillis
Speaker of the House of Representatives
s/ Beverly E. Perdue
Governor
Approved 1:18 p.m. this 27th day of June, 2011
SL2011 -0384 Session Law 2011 -384 Page 3
`to]
Attachment 3 Article 2: Procedures
Section 2.24: Appeals
(1)
The decision of the Planning Director regarding an exempt subdivision
application may be appealed to the Board of County Commissioners.
(2)
The Board of County Commissioners shall have final approval authority, and,
where applicable, all Final Plats shall contain information and /or conditions
approved by the Commissioners.
(3)
The Board of County Commissioners in all such appeals shall make findings of
fact in support of its decision. The subdivider shall be notified, in writing, of the
Board's decision.
(C) Minor Subdivisions
(1)
The decision of the Planning Director regarding a minor subdivision application
may be appealed to the Board of County Commissioners.
(2)
The Board of County Commissioners shall have final approval authority, and,
where applicable, all Final Plats shall contain information and /or conditions
approved by the Commissioners.
(3)
The Board of County Commissioners in all such appeals shall make findings of
fact in support of its decision. The subdivider shall be notified, in writing, of the
Board's decision.
(D) Major Subdivisions — Final Plat
(1)
The decision of the Planning Director regarding a Major Subdivision Final Plat
application may be appealed to the Board of Commissioners.
(2)
The Board of Commissioners shall have final approval authority, and where
applicable, all Final Plats shall contain information and /or conditions approved by
the Board of Commissioners.
(3)
The Board of Commissioners in all such appeals shall make findings of fact in
support of its decision.
(4)
The applicant shall be notified, in writing, of the Board of Commissioners'
decision.
2.24.3 Planning Board Decisions
(A) Major Subdivisions — Concept Plan
(1) The decision of the Planning Board regarding Concept Plan Development
Options may be appealed to the Board of Commissioners.
(2) Any notice of appeal shall be filed, in writing, with the Planning Director within 15
days after the date of the Planning Board's decision.
(3) If the appeal involves a plan /map approval, 16 copies of the plan /map shall be
submitted along with the written appeal.
(4) The Board of Commissioners shall have final approval authority, and, where
applicable, all Concept Plan Development Options shall contain information
and /or conditions approved by the Board of Commissioners.
(5) The Board of Commissioners in all such appeals shall make findings of fact in
support of its decision. The applicant shall be notified, in writing, of the Board of
Commissioners' decision within ten days after said decision is made.
2.24.4 Board of Adjustment Decisions
(A) Every decision of the Board shall be subject to review at the request of any aggrieved
party by the Superior Court by proceedings in the nature of certiorari. The appeal to
Superior Court must be filed within 30 days of the availability of the notice of decision
(2.12.5(A)).
Orange County, North Carolina — Unified Development Ordinance Page 2 -69
11
I
Article 2: Procedures'
12 Section 2.24:Appeals
2.24.5 Board of County Commissioners Decisions
(A) Quasi-Judicial Decisions
(1) Quasi-judicial decisions made by the Board of County Commissioners pursuant
to the Ordinance shall be subject to review at the request of any aggrieved party
by the Superior Court by proceedings in the nature of certiorari.
(2) The appeal to the Superior Court must be filed within 30 days of the filing of the
decision of the Board of County Commissioners by the Planning Director or the
delivery of the notice of the decision to the applicant, whichever is later.
(B) Legislative Decisions
(1) Legislative decisions made by the Board of County Commissioners pursuant to
the Ordinance shall be subject to review at the request of any aggrieved party by
the Superior Court.
(2) The appeal to the Superior Court must be filed from the date of adoption of said
Ordinance within the prescribed period below: 30 days of the filing of fh°
cde G;slnn of the C2norrd of GeURt i Commissioners by the Planning Dir°nfnr nr the
delivery of "he nnfinn of the rdeGision to the applicant whichever is later.
.
(a) 60 days in cases involving the appeal of an Ordinance amending the
Zoning Atlas.
(b) 1 year (365 days) in cases involving in cases involving the appeal of an
Ordinance amending the LIDO.
(c) 3years (1,035 days) in cases involving an appeal based on an alleged
defect in the adoption process of an Ordinance amending the LIDO.'
2.24.6 Water Supply Watershed Critical Area Boundary Line
Appeal applications disputing the Planning Director's decision regarding the location of a Water
Supply Watershed Critical Area boundary line shall be accompanied by:
(A) A survey prepared by a North Carolina registered land surveyor or professional engineer
depicting the differences between:
(1) The locational criteria in Section 4.2,
(2) The official Watershed map on file in the Planning Department, and
(3) The boundary line the applicant asserts is correct.
(B) A detailed explanation describing the differences in the three boundary lines contained in
(A) above.
2.24.7 Special Flood Hazard Overlay District
(A) Any property owner who has received an order to take corrective action in accordance
with Section 9.7 may appeal the order to the local elected governing body by giving
notice of appeal in writing to the Floodplain Administrator and the clerk within ten
business days following issuance of the final order.
(B) The local governing body shall hear an appeal within a reasonable time and may affirm,
modify and affirm, or revoke the order.
' State law makes specific reference that the appeal period begins from the date of adoption of an Ordinance. The
UDO is being modified to reflect this requirement rather than the date the decision is filled or notice is delivered to
an applicant.
Orange County, North Carolina—Unified Development Ordinance Page 2-70