[Durham INC] FW: Interesting read about a Senate bill and LOCAL ZONING

Sat Nov 30 15:59:21 EST 2024

At the very end of this long bill (s-382) stripping the governor and AG of power, there is added a new provision stripping away the power of local government to take zoning action which reduces the value of allowed density on a parcel without the owner’s express permission.  The General Assembly passed a law about ten years ago that took away the right of ordinary citizens to petition for the rezoning of land.  This law kept the right of the local government to rezone property on its own motion.  This means the local government could rezone land – even downzone it – without the owner’s permission.  This new bill would strip away even the local government’s right to initiate a rezoning that affects value or density without the owner’s express permission.  This means that if the government rezones land or rewrites a zoning rule, the action is legal only if it expands value or increases density or development rights.  It’s an up-escalator only.

I disagree with Terry Mehaffy whose message appears below.  stripping government’s right to regulate land use in a way that reduces development rights is the key to zoning.  Without this there is no local environmental regulation.  There is no neighborhood protection.  There is no land conservation.  There is no historic protection.

The bill passed in a rush and on Tuesday, November 26, Gov. Cooper vetoed the bill.  now will the general Assembly override the veto?  Probably.  I think INC needs to communicate with at least the Durham delegation about this.

From: SZ Rosenthal <szrcoho at mindspring.com> 
Sent: Saturday, November 30, 2024 3:02 PM
To: tom miller <miller.tom2022 at gmail.com>
Subject: Fwd: Interesting read about a Senate bill and LOCAL ZONING

Did you see this?

Hope you had a great Thanksgiving!

s

Begin forwarded message:

From: Mary Molina <mymolina49 at yahoo.com <mailto:mymolina49 at yahoo.com> >

Subject: Interesting read about a Senate bill and LOCAL ZONING

Date: November 27, 2024 at 4:56:51 PM EST

FYI...please share as you see fit

 <https://mail.onelink.me/107872968?pid=nativeplacement&c=Global_Acquisition_YMktg_315_Internal_EmailSignature&af_sub1=Acquisition&af_sub2=Global_YMktg&af_sub3=&af_sub4=100000604&af_sub5=EmailSignature__Static_> Sent from Yahoo Mail for iPhone

Begin forwarded message:

On Wednesday, November 27, 2024, 3:03 PM, Mary Molina <mymolina49 at yahoo.com <mailto:mymolina49 at yahoo.com> > wrote:

>From Terry Mahaffey, Apex Town Council

"🚨⚠️Bad Bill Alert! ⚠️🚨

Senate Bill 382 has been getting a lot of press lately as a post election partisan power grab. But did you know that tucked in this bill is ALSO a provision that seemingly strips away local zoning authority? 

The NCGA is shifting a bunch of powers from the Governor and Attorney General (offices Democrats just won) to themselves and the State Auditors Office (controlled by Republicans). It's clearly unconstitutional, and that fight is on going. But that part of the bill is not what I'm here to talk about. Instead, more in my lane, I want to draw attention to the zoning law changes that seems to have far reaching ramifications. My read is it prevents common sense zoning measures every municipality undertakes (such as not allowing tobacco or vap shops near schools). It's complicated, but let me explain.

First, the straight forward part. Tucked in at the end of the bill is a zoning provision which does two things:

1. It prevents towns from "down zoning" a property without the owners consent. Generally speaking, a down zoning is when a property right of some type is removed

2. It expands the definition of down zoning

Now, I actually don't have much of a problem with #1 - at least under the old definition of down zoning. Apex, and most towns, I think generally don't initiate rezonings on our own for anything other than our own property.

This, on it's own, would likely outlaw any further "neighborhood overlay districts" commonly used by NIMBYs to restrict housing. I can live with that.

The problem is with the second part. This expansion of what it means to be a down zoning, COMBINED with the prevention of towns from being able to do it without permission, potentially means that most common sense zoning and development rules can no longer be done! The simple reason is, because the definition is so broad (it talks about "creating non-conformity" or "reducing uses") even simple things like deciding to prevent tobacco stores from opening next to a school are no longer allowed.

The issue is, MOST ordinances in some way shape or form prevent or restrict the uses of stuff. That's why they are laws. They are restrictive. That's just what laws do. This says we can't do (most) laws anymore.

So, in some sense, it does really seem like S382 prevents towns from further restricting the commercial use of land, ever again. Whatever the land use rights are today, whatever uses are allowed, whatever provisions of signs or literally any other development rule is in place, are now the absolute bottom baseline and can never be further restricted, only expanded.

If that sounds good to you, and maybe it does, please again keep in mind the tobacco shop example. MOST land use ordinances municipalities make are in the ballpark of regulating where questionable uses go and can't go.

It seems like we can't do that anymore."

 <https://mail.onelink.me/107872968?pid=nativeplacement&c=Global_Acquisition_YMktg_315_Internal_EmailSignature&af_sub1=Acquisition&af_sub2=Global_YMktg&af_sub3=&af_sub4=100000604&af_sub5=EmailSignature__Static_> Sent from Yahoo Mail for iPhone

Sherri Zann Rosenthal

c919-949-6514

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