Wednesday, March 13, 2013, 4:23 PM

Proposed Law to "Clarify" Reach of Zoning Power: If Proposed Law Is Not Adopted, Is Existing Law Ambiguous?

This afternoon, the North Carolina General Assembly sent to the "House Floor" a proposed law entitled "An Act to Clarify When a County or Municipality May Enact Zoning Ordinances Related to Design and Aesthetic Controls".  The apparent purpose of the Act, technically called House Bill 150, is to make it clear that local governments in North Carolina do not have the power under zoning enabling legislation to regulate the look of homes.

In English?  The Act "clears up" that a local government -- whether county or municipality -- is unable to control the following with respect to residences:  exterior building color; type or style of exterior cladding material; style or materials of roof structures or porches; exterior nonstructural architectural ornamentation; location or architectural styling of windows and doors, including garage doors; the number and types of rooms; and the interior layout of rooms.

To drive the point home that the local governments do not have this zoning power, the Act is intended to amend N.C.G.S. 160A-381 and N.C.G.S. 153A-340, which is the zoning law entitled "Grant of Power".

What's curious to us is that the law is captioned as one to "Clarify" zoning powers under N.C.G.S. 160A-381 and N.C.G.S. 153A-340.  This of course implies that N.C.G.S. 160A-381 and N.C.G.S. 153A-340, as they currently exist, are not clear and, thus, cannot be interpreted through the Court's "plain meaning rule", at least with respect to aesthetic regulation of homes.  

The Act is not yet law, it must be clear.  Well, maybe it is law, because it is simply "Clarify[ing]" what is already within the law.  Right?  Isn't that what the General Assembly is saying?  Hell, it's just not clear.  It needs to be clarified.  Maybe we can clarify what the current enabling law says in light of this clarifying Act, by the adoption of another clarifying act.  Who knows?  But what is clear, according to some Legislators, is that "local zoning authority is clearly spelled out in state law and ... some cities are trying to stretch the rules".  News outlet WRAL has some interesting views from your elected officials, including the Act's sponsor, Representative Nelson Dollar, R-Wake.  

The Act excludes certain categories from its "clarified" prohibition -- local historic districts, national registry of historic places, designated historic landmarks, "manufactured or modular housing", insurance regulations.  And, lest we forget, the Act does not prevent private individuals from agreeing to restrictive covenants over design.  As to this latter point, People always agree, right?

Mike Thelen practices in Womble, Carlyle's Real Estate Litigation and Land Use practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development matters in both state and federal venues throughout North Carolina.  Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw.

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