tag: North Carolina Land Use Litigator: September 2013

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Thursday, September 5, 2013, 3:50 PM

Raleigh's New Form-Based Unified Development Ordinance Takes Effect, With Broad Implications

In February 2013, the City Council of the City of Raleigh approved a new Unified Development Ordinance, or UDO.  The new UDO went into effect on September 1 subject to certain "transitions" discussed below.   

The new UDO evinces a change from Raleigh's old conventional zoning code to a new form-based zoning code. Briefly, a form based code has been well-described and well-differentiated from conventional zoning as follows:
Form-Base Code is a relatively new and innovative method of managing growth and shaping development to achieve a specific urban form and mix of uses as preferred by a given community. Unlike conventional zoning, Form-Base Code addresses not only development but the relationship between public and private spaces such as the interaction between streets, blocks, and buildings in terms of form, scale and massing, and the use of frontage areas.  Form-Based Code creates a predictable public realm by including specific standards for the design of streets and open spaces, and focusing primarily on the physical form of development, with a lesser focus on building use than conversional zoning regulation.
In other words, form-based zoning laws reach far and wide into the design aspects of development, a different notion from conventional zoning.  "Major elements" of Raleigh's new form based code are well-summarized here, and include changes to building type (Chapters 2 and 3 of the UDO), zoning districts (Chapter 3), sureties for public improvements and stormwater controls, structure height, block perimeters and street connectivity (Chapter 8), and review processes (Chapter 10).  While aspirational, which is a principle well-suited for a growing and dynamic place like Raleigh, these form-based laws can prove more complex than to what most are accustomed in land use.  

Thus, September 1 is very significant to anyone owning or developing land in the City.  Let's take a closer look at the high points and the practical impacts of Raleigh's new UDO.

Certain regulations from the new UDO went into effect in all zoning districts on September 1, including new UDO Chapters 8 (subdivisions, access, streets and connectivity), 9 (natural resource protection, stormwater) and 10 (with certain exceptions).  In addition, as of September 1, certain old zoning districts and old zoning overlay districts are seamlessly transitioned to the new UDO if the old district and new district are the same in the new UDO, including R-1 through R-10, Conservation Management, Agricultural Productive and Manufactured Housing.  To the extent the old zoning district exists in the new UDO, it is generally so that the new UDO governs the property in entirety.

Old zoning districts that are not included in the new UDO, and thus not seamlessly transitioned, are considered "legacy districts".  "Legacy districts" excluded from the new UDO include R-15, R-20, Shopping Center, Neighborhood Business, all Office and Institutional, and Industrial.

A moment about these "legacy districts."    Development of these districts continues to be regulated in part by the old zoning code, save for where the new UDO applies to all zoning districts as outlined in the above paragraph.  This "uneven" regulation will continue until the City is able to "remap" these old zoning districts to new UDO zoning districts, which the City expects to occur over the next 18-24 months: the transition period.   A somewhat helpful slideshow on navigating the transition period is viewable here.  Of course, a landowner in a "legacy district" may petition for a rezoning to the new UDO to expedite that remapping, if desirable.  

As far as other changes by way of the new UDO, site plan approvals, site plan appeals and rezonings are some of the more noticeable.  As to site plan approvals, an administrative approval process will be used, which means most site plans will go through the City staff for approval rather than through the City planning commission and City council.  This means an end to public hearings on most site plans.  As to site plan appeals, the hearing body depends on the deciding body: staff decided cases go to the board of adjustment on appeal, and planning commission decided cases go to the City council on appeal.  As to rezonings, they may be filed on a rolling basis (as opposed to the old way: quarterly) and will not come up for public hearing before only the City council until after the City planning commission has given a recommendation to the City council (as opposed to the old way: public hearing before both bodies, jointly).

There has always been much to navigate, in terms of the zoning laws of the City of Raleigh.  Now, the body of water, the shoals, and the weather have all changed.

Wow, form-based zoning laws really changed Cleveland, huh?

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 and "like" us on Facebook here.

Wednesday, September 4, 2013, 4:51 PM

Fourth Circuit Weighs In On Pandhandling and Fortune Teller Ordinances

Today, we're looking to land use issues decided in the recent past by the federal courts.  Specifically, we're looking to the United States Court of Appeals for the Fourth Circuit, which encompasses North Carolina, South Carolina, Virginia, West Virginia and Maryland.  I think the reasons for our particular interest in the Fourth Circuit are either obvious or easily discoverable.  Ok, they're obvious.

We've been alerted to these decisions by Professor Patricia Salkin through her Law of the Land blog, which the North Carolina Land Use Litigator finds very helpful in keeping sharp on the shape of legal landscapes.  And yes, it happens that Professor Salkin links to our blog in her esteemed "blogroll".

Land use issues are not a common topic in the federal courts, but they are always interesting when they do arise.  Let's review.

Panhandling Ordinance
Clatterbuck v. City of Charlotte (4th Circuit 2013).  The City of Charlottesville, Virginia enacted an ordinance prohibiting the solicitation of "immediate donation of money or other thing of value" by "spoken, written, or printed word" on the City's "Downtown Mall" when "those streets are open to vehicular traffic."

A group of "impecunious" men "reliant to a certain extent on begging" filed suit pursuant to 42 U.S.C. 1983 to challenge the ordinance, claiming the ordinance "violates their First Amendment right to beg, impermissibly restraining their protected speech activity and livelihood."  The trial court held that the plaintiffs had standing, but dismissed the complaint for failing to state a "cognizable" First Amendment claim.  The trial court reasoned the ordinance to be "a content-neutral, permissible time, place, and manner restriction".

On appeal, the Fourth Circuit affirmed on standing but reversed the trial court as to the "cognizability" of plaintiffs' claim.  First, the Fourth Circuit recognized the protected place of a "downtown mall" in a First Amendment analysis, calling such a location the "archetype of a traditional public forum" and a "quintessential public forum over which the First Amendment's shield is strongest."  Second, the Fourth Circuit rejected the trial court's conclusion that the panhandling ordinance is "content neutral", stating that the "content based" restriction (therefore, subject to strict scrutiny) distinguishes between solicitation for things of value/solicitations for things of no value and between solicitations for future donations/immediate donations.

Would the ordinance have fared better on appeal had it applied throughout the City, as opposed to only the downtown mall?  What about an ordinance leaving the value/no value distinction but eliminating the timeframe distinction?  The trial court will have the chance to review on remand consistent with the opinion.

Ordinances and Fortune Tellers
Moore-King v. County of Chesterfield (4th Circuit 2013).  A "psychic", who sought to open her business, refused to pay a license fee pursuant to a County ordinance regulating fortune tellers.  Instead, she filed suit against the County alleging violation of the federal constitution and federal statutes, most notably First Amendment free speech and free exercise clause, Equal Protection and Religious Land Use and Institutionalized Persons Act (RLUIPA) claims.

The trial court granted the County's motion for summary judgment on all claims.  On appeal, the Fourth Circuit affirmed summary judgment in the County's favor as to the fortune teller's RLUIPA, free exercise and Equal Protection claims  As to the RLUIPA and free exercise claims, the Fourth Circuit concluded that fortune telling, while a belief sincerely held, is not a religion and therefore not entitled to these federal protections.  As to the fortune teller's Equal Protection claim, the Fourth Circuit found no suspect class and held that the ordinance quite easily satisfies rational basis review.

The Fourth Circuit also affirmed summary judgment on the First Amendment claim, finding in favor of the fortune teller though with a little more pizazz.  First, the Fourth Circuit determined that the trial court was wrong to conclude telling fortunes is "inherently deceptive speech" outside the confines of the First Amendment.  Rather, the Fourth Circuit reminds the world of the fortune teller's own website disclaimer ("Sophie does not provide a 100% guarantee, as people, perceptions, and decisions, can fluctuate, and circumstances out of everyone’s control can happen.") and intimates that such an "inherently deceptive" exception is reserved for the likes of Geritol and New York Mets preseason advertisements.

Second, answering the "more challenging question", the Fourth Circuit concludes that the ordinance is a content-neutral regulation within the "professional speech doctrine":  "Under the professional speech doctrine, the government can license and regulate those who would provide services to their clients for compensation without running afoul of the First Amendment....  And a state’s regulation of a profession raises no First Amendment problem where it amounts to 'generally applicable licensing provisions' affecting those who practice the profession."

Man, I really did not see this ruling coming.

 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 and "like" us on Facebook here.
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