JUMPSTART WORKSHOPS · Interpretation Example ... Types of 160D Statutory Provisions 1. Musts 2. Mays 3. Be aware 4. Not yet available 7 8 9 6/15/2020 4 Sample Provisions 1. Terminology

JUMPSTART WORKSHOPS

June 16 & 18, 2020

via Zoom Video Conference

Welcome (10 min)

Adam Lovelady

Chapter 160D Update (10 min)

Benjamin Hitchings

Principles for Ordinance Drafting (40 min)

Benjamin Hitchings and Adam Lovelady

Ordinance and Drafting Basics

Mechanics and Project Management

Interpretation Example

Q&A

Break (10 min)

Breakout Exercise 1 (40 min)

Benjamin Hitchings

Definitions and references for “quasi‐judicial decision,” “evidentiary hearing,”

“legislative decision,” and “legislative hearing”

Conflicts of Interest Standards

Breakout Exercise 2 (40 min)

Adam Lovelady

Maps by reference

Administrative modification

Q&A and Next Steps (30 min)


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Reference Materials Included

Definitions for Breakout Exercise 1

Workshop Slides

160D Guidance: Amending an Ordinance

160D Guidance 1: Administrative Modifications

160D Guidance 2: Incorporating Maps by Reference

160D Guidance 3: Conflicts of Interest

Links for Additional Reference Materials

School of Government 160D Website

160D Online Modules.

Checklist for Ordinance Updates

Cross‐Over Chart: 160A/153A to 160D

Cross‐Over Chart: 160D to 160A/153A

160D Q&A

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Definitions for Breakout Exercise 1 Evidentiary hearing. ‐ A hearing to gather competent, material, and substantial evidence in order to make findings for a quasi‐judicial decision required by [this ordinance]. a development regulation adopted under this Chapter. Legislative decision. ‐ The adoption, amendment, or repeal [all or part of this ordinance] regulation under this Chapter or an applicable local act. The term also includes the decision to approve, amend, or rescind a development agreement consistent with the provisions of Article 10 of this Chapter. Legislative hearing. ‐ A hearing to solicit public comment on a proposed legislative decision. Quasi‐judicial decision. ‐ A decision involving the finding of facts regarding a specific application of a development regulation and that requires the exercise of discretion when applying the standards of the regulation. The term includes, but is not limited to, decisions involving variances, special use permits, certificates of appropriateness, and appeals of administrative determinations. [Decisions on the approval of subdivision plats and site plans are quasi‐judicial in nature if the regulation authorizes a decision‐making board to approve or deny the application based not only upon whether the application complies with the specific requirements set forth in the regulation, but also on whether the application complies with one or more generally stated standards requiring a discretionary decision on the findings to be made by the decision‐making board.]

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6/15/2020

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160D Update May 15, 2020

Part of the

Planning in a Pandemic Series

This Photo by Unknown Author is licensed under CC BY

Chapter 160D Jumpstart

WorkshopsJune 16 & 18, 2020Benjamin Hitchings & Adam Lovelady

Speakers

Ben HitchingsAdjunct Teaching Assistant Professor, UNC School of Government

Principal, Green Heron Planning, LLC

Adam LoveladyAssociate Professor, UNC School of Government

Agenda

•Welcome•160D Updates •Principles for Ordinance Drafting •Breakout Exercise 1•Breakout Exercise 2•Q&A

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Welcome

160D Overview and Updates

Chapter 160D

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SOG Checklist

Checklist Topics

1. Terminology and Citations

2. Geographic Jurisdiction

3. Boards

4. Land Use Administration

5. Substance of Zoning Ordinance

6. Substance of Other Dev. Ords.

7. Comprehensive Plan

8. Legislative Decisions

9. Quasi-Judicial Decisions

10. Administrative Decisions

11. Vested Rights, Permit Choice

12. Judicial Review

Types of 160D Statutory Provisions

1. Musts

2. Mays

3. Be aware

4. Not yet available

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Sample Provisions

1. Terminology and Citatios

2. Geographic Jurisdiction

3. Boards

4. Land Use Administration

5. Substance of Zoning Ordinance

6. Substance of Other Dev. Ords.

Align definitions with state bldg. code

Update conflict of interest standards

Mailed notice for ETJ extensions

Eliminate Cond. Use District Zoning

Maintain current and prior zoning maps

Exempt farm use in muni ETJs

Sample Provisions

7. Comprehensive Plan

8. Legislative Decisions

9. Quasi-Judicial Decisions

10. Administrative Decisions

11. Vested Rights, Permit Choice

12. Judicial Review

Adopt/reasonably maintain by 7/1/22

Have chair rule on admin materials

Posted notice 10-25 days before hearing

Can’t make applicant await rule change

Provide written notice of determinations

Local govts. subject to attorneys’ fees

Scoping Your Local Ordinance

Identify which measures are:

1. Required

2. Applicable

3. Appropriate to include

4. Opportunities to improve code

5. Affected by updated statutory timeline

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SOG 160D Resources

Book Intro WorkshopsVideo Modules FAQs

160D Guidance Documents

1. Administrative Modifications

2. Incorporating Maps by Reference

3. Conflicts of Interest

4. Plan Consistency Statements

5. Conditional Zoning

6. Permit Choice

7. Vested Rights

160D Guidance Documents

Sections:

1. Overview

2. Basic Procedures

3. Key Considerations

4. Statutory Authorization

5. Sample Ordinance Language

6. Example Ordinance Provisions

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Legislative Update

• May 4, 2020: Session Law 2020-3 (S. 704) enacted1) Delays 160D effective date to August 1, 20212) Allows immediate incorporation of state/federal maps by reference

• May 13, 2020: General Statutes Commission bill introduced (S.720)1) Would delay 160D required effective date to July 1, 20212) Would integrate Part I of original bill into Part II3) Would add in other 2019 enacted legislation4) Would make other technical, clarifying, and correcting amendments

Legislative Update

GSC Bill (S. 720) – Other Technical and Clarifying AmendmentsIf/when bill is passed, would also: • Allow LUP as well as comp plan to qualify for zoning authority• Reinsert inadvertently omitted statutes

• County could receive funds for streets in ETJ• Receivership for dilapidated houses• 10-year enforcement for nonconformities• No restrictive covenants for family care homes

• Require city zoning to be citywide; county partial zoning still allowed• Allow local permit approvals to last longer than one year• Specify type of hearings required• Correct cross-references

Basics of Ordinance Drafting

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Considerations for Ordinance Drafting

• Fairly and effectively manages land use issues in the community

• Appropriately reflects the desired policy direction of the governing board

• Is clear and understandable to the range of users, including boards, applicants, staff, community stakeholders, and others

• Can be readily administered and enforced

• Can handle a range of different projects that will be subject to its standards

• Includes clear relief mechanisms for unusual cases

Structure and Elements

Simple

• Use plain English.

• Avoid jargon.

• Avoid extra language.

• Avoid legalese.

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Clear

• Say what you mean.

• Be specific.

• Avoid ambiguous terms.

Consistent

• With ordinance terms.

• With ordinance procedures.

• With ordinance approach.

• Watch out for conflicting provisions.

Grammar and Word Choice

• Use active voice.

• Use present tense. “A violation of this ordinance shall be is a Class 3 misdemeanor.”

• Use gender neutral language.

• “Shall” is required. “May” is permissive. Avoid “should”—it is unclear.

• Use brief sentences.

• Do not use contractions.

• Do not use “etc.”

• Avoid abbreviations.

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Structure

• Use a logical order of steps and standards.

• Use numbered or lettered bullets to separate different concepts or standards.

• Avoid listing standards in definitions where they can be harder to find.

• When using lists, be clear whether all, some, or only one item need apply.

Mechanics for a 160D Update

Start with the Current Code

• Current version

• UDO or multiple ordinances?

• General scan

• Need for other fixes

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Be Systematic and Keep Track

• Use a checklist

• Add drafters notes

• Streamline terms and procedures

• Track Changes

Engage Decision-Makers

Be Careful with Cut-And-Paste

• Tailor the language

• Check for conflicting provisions

• Consider cross-references

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Double Check

• Search of duplication

• Avoid conflicts

• Use Ctrl + F

Review and test

• Have multiple reviewers

• Get input from stakeholders

• Test new provisions with hypothetical projects

Implement

• Train staff and boards on the updated procedures

• Update internal procedures and checklists

• Educate applicants and other community stakeholders about the updated procedures

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Interpretation Example

Case Study: Mason Farm/Whitehead Circle

Importance of Substance and Clarity



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• Look to plain meaning of words in ordinance

• What is the unit of analysis?

• “dwelling unit”

• Is any proposed dwelling unit 6,500 square feet or larger?

• If no, then setback remains 50’



Lessons

• Be clear about your role

• Job as zoning administrator is to interpret what the ordinance says

• May not agreed with standard, but still have to follow it

• Ordinance language can be around for a long time

• Be clear when drafting


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Breakout Exercise 1• Definitions and references for “quasi-judicial decision,” “evidentiary

hearing,” “legislative decision,” and “legislative hearing”

• Conflicts of interest standards

Adjusting Terminology

• “quasi-judicial decision”

• “evidentiary hearing”

• “legislative decision”

• “legislative hearing”

Conflicts of Interest

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Step-by-Step

• Is there a tool or resource for this topic?

• Is the revised statutory provision required, optional, or applicable to your community?

• What are the policy and legal considerations for your community? Is there an opportunity to improve your code?

• Where does it belong in your code?

• How should it be phrased to fit into your code?

• Does it conflict with existing provisions in your code?

Breakout Exercise 2• Maps by reference

• Administrative modification

Maps Incorporated by Reference

• Including maps by reference

• Maintenance for public inspection

• Digital or paper

• Automatic zoning district up

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Administrative Modification

• Types• 160D allows for Conditional Zoning,

Special Use Permits, and Other Permits

• Maybe allowed for general dimensional standards

• Define by Ordinance

• No change in use or density

• Specific limitations

• Major amendments remain

Step-by-Step

• Is there a tool or resource for this topic?

• Is the revised statutory provision required, optional, or applicable to your community?

• What are the policy and legal considerations for your community? Is there an opportunity to improve your code?

• Where does it belong in your code?

• How should it be phrased to fit into your code?

• Does it conflict with existing provisions in your code?

Q&A

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Additional Resources

Website

nc160D.sog.unc.edu

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AMENDING AN ORDINANCE

This Chapter 160D Guidance is one in a series of guidance documents intended to provide supplemental information on specific topics. Additional guidance documents, training videos, an explanatory book, and other Chapter 160D resources are available at nc160D.sog.unc.edu.


June 2020 WORKSHOP VERSION

Overview This guidance provides rules of thumb and practical procedures to assist with updating a development ordinance to comply with Chapter 160D. The sections of this guidance walk through Ordinance Basics, Principles for Ordinance Drafting, Mechanics of Drafting Amendments, the Process for Adopting Amendments, and Implementing the Newly Adopted Ordinance. The task of drafting ordinance updates deserves care and attention. Development ordinances help a community manage change and address topics including public safety, community appearance, social equity, economic success, and more. The community—including citizens, stakeholders, applicants, boards, staff, and more—has to live with the ordinances over an extended period of time. As always, local government administrators should coordinate with legal counsel to ensure that amendments and procedures meet the legal requirements.

A Step‐by‐Step Approach to a 160D Topic This guidance document outlines details in the following sections, but here is a set of quick,

step‐by‐step questions for any given ordinance update authorized under Chapter 160D.

Is there a tool or resource for this topic?

Is the revised statutory provision required, optional, or applicable to your community?

What are the policy and legal considerations for your community? Is there an

opportunity to improve your code?

Where does it belong in your code?

How should it be phrased to fit into your code?

Does it conflict with existing provisions in your code?

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Ordinance Basics Structure and Elements A code of ordinances or unified development ordinance is structured into a hierarchy of sections. Those sections may be termed as chapters, articles, sections, and subsections, or they may have different terms. Regardless of the names, pay attention to the structure—it matters for the applicability of terms, requirements, enforcement, and more. For a Chapter 160D update to local ordinances, you may need to make changes to zoning, subdivision, historic preservation, minimum housing, and other development regulations. Depending on the local ordinance, all of those topics may be gathered into a unified development ordinance, or the topics may be scattered into independent, topic‐specific ordinances. Even within a zoning ordinance, there are many distinct topics: administration, review procedures, zoning districts, development standards, nonconforming situations, enforcement, definitions, and more. This organization makes the ordinance more user‐friendly and reduces the chance that provisions are lost or forgotten over time. Pay attention to the organization of topics, and place new provisions where they belong. Avoid miscellaneous sections to gather random provisions.

Definitions Definitions eliminate tedious repetition of unnecessary words. Once defined, use a term consistently throughout the code. A drafter may place a definition into a general definitions section or within a specific section. If a code contains a general definitions section, there is no need to repeat a definition in a specific section (but it may be helpful to cross‐reference for clarity). If a term is specific to a particular section, place a definition within that section. If a term is already defined in statute, it may be helpful to cross‐reference that statute.

Considerations for Ordinance Drafting What then makes for a good ordinance? Among other things, a good ordinance is one that:

• Fairly and effectively manages land use issues in the community • Appropriately reflects the desired policy direction of the governing board • Is clear and understandable to the range of users, including boards, applicants, staff,

community stakeholders, and others • Can be readily administered and enforced • Can handle a range of different projects that will be subject to its standards • Includes clear relief mechanisms for unusual cases

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Principles for Ordinance Language Simple Write in plain English. Avoid jargon. Use no unnecessary words. For example, “FLAG is defined as and shall mean means a piece of cloth, paper, or other similar flexible material displayed on a flagpole.” Avoid unnecessary flowery legal language such as “hereby,” “hereinafter,” and “aforementioned.”

Clear Say exactly what you mean. Be sure that each word accurately expresses the idea. Be specific. If you are creating a requirement, clearly state who must do what. (“The administrator shall post notice on the property.”) Avoid vague and ambiguous terms such as substantial, significant, insufficient, unacceptable, without delay, reasonable, adequate, and unreasonable.

Consistent Use consistent terminology and avoid internal conflicts between code sections. Once a term is defined, use it consistently throughout the code. Once a procedure is set, provide cross‐references to that procedure rather than restating the same language.

Additional Language Guides Grammar and Word Choice

Use active voice. Write “The petitioner shall give notice to the clerk within 30 days.” Do

not write “Notice shall be given to the clerk within 30 days.” It is unclear who must give

notice.

Use present tense. “A violation of this ordinance shall be is a Class 3 misdemeanor.”

Use gender neutral language. Use “chair” instead of “chairman.” “The appointee holds

office until his a successor is sworn.”

“Shall” is required. “May” is permissive. Avoid “should”—it is unclear.

Use brief sentences. Avoid lengthy run‐on sentences.

Do not use contractions.

Do not use “etc.”

Avoid abbreviations.

Structure

Develop a logical order of steps and standards to make them easier to follow and

understand

Consider listing each standard as a numbered and/or lettered bullet

Avoid listing standards in definitions where they can be harder to find

When using lists, be clear whether all, some, or only one item need apply

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Content

Balance predictability and flexibility. If code drafters are not careful, pursuing one of

these ends can come at the expense of the other. Some communities handle this

challenge by providing clear standards, and then providing clear mechanisms for

resolving unusual cases.

Use illustrations as needed, and clarify their status legally (often ordinances note that

illustrations are for explanatory purposes only, and in cases of potential conflict, the text

of the ordinance controls)

Mechanics of Updating an Ordinance Start with the Current Code Start with the most current version of the law. Gather each ordinance or code that may be affected. Begin with a scan through the ordinance(s) to get acquainted with the structure, terminology, and numbering conventions. Make note of simple streamlining and re‐organization that may improve the ordinance. For example, consider pulling all definitions to a general definitions section, establishing a section on administrative procedures, and cutting outdated provisions.

Be Systematic Use a checklist, summary page, or other tool to keep track of what is done and what is to be done. The Chapter 160D Checklist may be helpful. Add drafter’s notes (as comments or bracketed text) to identify a policy choice, explain an interpretation, or highlight lingering questions. Avoid adding the same language multiple times. Define a term once in the general definitions and use that term consistently. State a procedure once, and then cross‐reference to that procedure when needed. (“The town shall process each special use permits as a quasi‐judicial decision and follow evidentiary hearing procedures as specified in Section __.”) Increasingly, ordinances online include a hyperlink to the referenced section.

Engage Stakeholders and Decisions‐Makers for Policy Input Identify and discuss policy choices associated with the different ordinance provisions. Think about whether the proposed provisions are likely to have the intended effect, and work to make sure stakeholders and board understand these considerations.

Keep Track of Changes When preparing the proposed ordinance for public review and board consideration, new language to be added to the current ordinance is noted with an underline like this. Language that will be deleted from the current ordinance is noted with a strike‐through like this. If substantially all of the language will be deleted and amended, it may be more appropriate to repeal the entire section and adopt the entire new section.

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Word processing programs such as Microsoft Word and Google Docs provide some ability for tracking changes. These tools can be useful, but they require careful management. If changes are accepted or rejected, they no longer appear as changes. Additionally, if multiple individuals make changes, the changes may show up in multiple colors. Regardless of whether you use conventional underline and strike‐through or track‐changes, document management is critical. Keep careful records of the versions of the draft ordinance and keep careful control of the main document.

Look Again (and use Ctrl + F) When making a change, search the ordinances for key related terms to make sure the change is consistent throughout the code. Old ordinances can have duplication, overlapping requirements, conflicting provisions, and plain mistakes. Use the search function (control key + F) to identify key terms and make appropriate changes. For example, when updating the statutory citations, search for “General Statute”, “G.S.”, “160A”, “153A” and related statutory terms to ensure that all are located and updated appropriately.

Be Careful with Cut‐And‐Paste While it can be tempting (and quick) to merely cut‐and‐paste language from another ordinance or from the statutes, one must take care when doing that. Here are some keys to success.

Tailor the language to the specific jurisdiction and ordinance. Make sure that jurisdiction

name, section numbering, cross‐references, and other identifying information is

customized to this jurisdiction.

Take care that the new cut‐and‐paste language aligns with existing ordinance provisions.

If the ordinance will merely restate a lengthy statutory provision, consider simply cross‐

referencing to the statute rather than reciting it. A local checklist or policy guide can be

used to detail the specific statutory requirements.

Get a Second Opinion and Test Hypotheticals Have multiple individuals review the proposed ordinance amendments. This may include staff from other departments, outside consultants, legal advisors, industry representatives, advisory boards, or others. Even the best drafter needs an editor, and complex legislation benefits from multiple perspectives. Test any new standards with common hypothetical projects or scenarios.

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Process for Adopting Ordinance Amendments Planning Board Review, Public Notice, and Public Hearing Once the proposed 160D zoning text amendment has been drafted, it is time to run it through the board review and adoption process. State law calls for the following steps. Local rules may add steps to this process.

The zoning text amendment must be referred to the jurisdiction’s planning board for

review.

The planning board may hold a legislative hearing as part of its advisory review of the

proposed text amendment.

If the planning board holds a legislative hearing, it must follow the procedure for

legislative hearings, including running a published notice in a newspaper of general

circulation in the area for two successive weeks, with the first week not being less than

10 days nor more than 25 days before the date of the public hearing.

When reviewing the proposed zoning text amendment, the planning board must advise

and comment on whether the proposed amendment is consistent with any adopted

comprehensive plan and any other officially adopted plan that is applicable.

If the governing board does not receive a written report on the text amendment from

the planning board within 30 days of referral of the text amendment to the planning

board, the governing board may act on the amendment without the planning board

report.

The governing board is required to conduct a legislative hearing before taking action on

the proposed text amendment.

Published notice must be provided for the legislative hearing, with the notice running in

a newspaper of general circulation in the area for two successive weeks, with the first

week not being less that 10 days nor more than 25 days before the date of the public

hearing

When adopting or rejecting any zoning text or map amendment, the governing board

must approve a brief statement describing whether its action is consistent or

inconsistent with an adopted comprehensive plan and explaining why the action taken

is reasonable and in the public interest. An example is provided below.

Sample Consistency Statement The [INSERT NAME OF GOVERNING BOARD] concludes that the proposed ordinance amendment is reasonable and in the public interest because it brings the local ordinances into compliance with applicable North Carolina law. Additionally, the proposed ordinance amendment [SUPPORTS/DOES NOT SUPPORT] the following policies and goals in the [TYPE OF JURISDICTION]’s adopted Comprehensive Plan:

[LIST APPLICABLE GOALS, SECTIONS, OR LANGUAGE]

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Implementing the Newly Adopted Ordinance The work does not end with ordinance adoption. Once the governing board has adopted the updated ordinance, then it is time to implement it. Common implementation considerations include the following:

Train staff and boards on the updated procedures

Update internal procedures and checklists

Educate applicants and other community stakeholders about the updated procedures

In addition, it may be helpful to remind upper management and local advisory and appointed boards that major ordinance updates often require some fine‐tuning, and that minor revisions to the updates may be needed after they have been tested in practice for a time.

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Benjamin Hitchings & Adam Lovelady June 2020

WORKSHOP VERSION

Overview North Carolina local governments may establish procedures to allow for administrative review of proposed minor amendments for conditional zoning, special use permits, and other development approvals. This administrative flexibility reduces the need for a full approval process to accommodate a limited change to the plans for a project. Any significant amendments must still go through the full review process (legislative for conditional zoning, quasi‐judicial for special use permits, and full administrative review process for administrative approvals). An important limitation: The new statutory language authorizing administrative modifications is specifically for minor adjustments to projects that are already approved. This is not an alternative to the variance standards and procedures. Examples of administrative minor modifications include reconfiguring parking design, changing landscaping arrangements, or slightly altering road and lot configurations for a development that has already gone through the full approval process. Arguably there is authority within the general zoning powers and applicable caselaw to allow for minor modifications to dimensional ordinance standards, but that is not explicitly authorized by Chapter 160D. Administrative modification is an option for local governments. A community may choose to include administrative modification in the ordinance or not. The following sections outline policy considerations and legal criteria for administrative modification of development approvals, but as with any policy decisions and ordinance language, each jurisdiction should carefully consider the preferred approach for that community. Sample ordinance language must be tailored to the particular ordinance and local context.

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Key Considerations What types of changes warrant going back through the full review process? And what types of changes are best handled by administrative staff? Those are the overarching questions for administrative minor modification. While boards commonly want to review the significant aspects of a project, they may not want to spend excessive time reviewing minor changes. Without administrative modification, a change to an approved development must go through the full procedural requirements of notice, hearing(s), and other procedural safeguards. There is less need for such process when changes are simply tweaks to an already approved project, so minor modification may be an alternative. Here are important considerations for administrative review of proposed minor modifications:

Distinguish Site Design Modification from Dimensional Standard Modification. Chapter

160D authorizes administrative modification to an already‐approved development

approval, but within that authority there are two distinct categories of modification to

think about.

First, there are site design modifications—changes to the design of previously approved

development approvals. This would include a tweak to the design of a preliminary

subdivision plat and a slight alteration of the site plan required as a condition in a

special use permit. For these changes, the development still meets the underlying

zoning requirements, but there is a need for flexibility in the design of the site plan or

subdivision plat. Chapter 160D clearly authorizes such modifications provided they are

defined in the ordinance and subject to prescribed limits.

Second, there are dimensional standard modifications—changes to the underlying

zoning standards. These might include reductions in parking standards or setbacks that

are set by ordinance. Local governments must take great care in allowing such

modifications. Dimensional standard modifications are not explicitly authorized by

Chapter 160D, but those modifications arguably may be authorized under the general

zoning authority and applicable caselaw. An alteration to a basic ordinance standard is

substantially similar to a variance which requires a quasi‐judicial evidentiary hearing by

the board of adjustment. Clear, objective standards, a fair process, and a straight‐

forward appeal process will be necessary for such modification provisions.

Define Minor Modification. The ordinance must define the types of changes that qualify

for administrative review and the limits on such changes. Ordinances may include topics

such as lot configuration, parking design, setbacks, and similar requirements as topics

for which minor modification may be granted. As discussed more below, the limitations

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are commonly phrased as numerical or percentage caps for the change (no more than

five feet or ten percent, for example). Communities may permit administrative

modification of a site plan that has been attached as a condition of approval to a

conditional zoning district or special use permit. The ordinance may also define changes

that do not qualify for minor modification—changes that require a major amendment—

such as changes that would increase the traffic from the project beyond the levels

projected in a Transportation Impact Analysis (TIA) or increase the stormwater impacts

beyond what was identified in the stormwater analysis conducted as part of the original

approval.

No change in use or density. The statutes (excerpted below) prohibit administrative

minor modifications that “involve a change in uses permitted or the density of overall

development permitted.” An administrative modification could not be used to covert a

use from residential to commercial, for example. That said, there is the potential for

some ambiguity. Could an administrative official approve a shift in equivalent amounts

of activity between different uses within a similar category, such as trading an

equivalent number of dwelling units from one housing type to another, or trading

equivalent square footage between non‐residential uses? Such modification may be

possible if it could be demonstrated that the original approval foresaw such flexibility

and the proposed shift did not increase the “overall density of development.”

Qualifying criteria for modification. When is a minor modification authorized? An

administrator cannot have wide‐open discretion for granting modifications. There must

be specific, neutral, and objective criteria in place for when a minor modification is

authorized. So, for example, a minor modification may be allowed to provide relief from

a unique physical attribute of the property not known at the time of initial approval.

With such a limit, the applicant will need to provide evidence of why relief is needed.

While the administrator may need to engage in some fact finding, it may be

administrative rather than quasi‐judicial as long as it is defined by ordinance and limits

are placed on the discretion exercised by the local government staff person or

appointed board (discussed below).

Limits on amount of modification. In addition to clear criteria for when modifications

are authorized, the ordinance should set specific, neutral, and objective limits for the

permissible amount of modification. For example, a setback may be reduced up to ten

percent or 24 inches, or a parking requirement may be reduced no more than 25

percent.

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Decision‐maker. The ordinance should identify which official or board is charged with

reviewing a request for administrative modification. Administrative review functions can

be delegated either to local government staff or appointed boards, as desired by the

unit of local government.

Parcel‐specific modification. In the case of modifications to conditional zoning districts,

the statute authority permits the owners of individual parcels to “apply for modification

of the conditions so long as the modification would not result in other properties failing

to meet the terms of the condition.” Such a change applies only to the properties whose

owners require the change.

Major amendments remain. If a requested change does not qualify as a minor

amendment, the applicant may still seek a major amendment to the approval. Such

proposed revisions must go through the full approval process. An ordinance may specify

that multiple, sequential minor modifications will trigger the need for a major

amendment (projects are limited to one minor modification or one minor modification

per year, for example).

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Caselaw Limitations Long before Chapter 160D, North Carolina courts explained, emphasized, and enforced the difference between quasi‐judicial decisions and administrative decisions. The distinctions are especially important because of the differing procedural requirements to protect the rights of affected parties. If a decision requires judgment and leaves substantial discretion to the decision‐maker, it is quasi‐judicial and must follow elements of a fair trial such including an evidentiary hearing. If a decision is routine and nondiscretionary, then the decision is administrative or ministerial. There is no need for a quasi‐judicial hearing. In County of Lancaster v. Mecklenburg County, 334 N.C. 496, 434 S.E.2d 604 (1993), the North Carolina Supreme Court provided the following distinctions:

In making quasi‐judicial decisions, the decisionmakers must investigate facts, or ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature. . . . Administrative decisions are routine, nondiscretionary zoning ordinance implementation matters carried out by the staff, including issuance of permits for permitted uses. In general, the zoning administrator is a purely administrative or ministerial agent following the literal provisions of the ordinance. The zoning administrator may well engage in some fact finding, . . . [b]ut, in such instances, this involves determining objective facts that do not involve an element of discretion.

In County of Lancaster v. Mecklenburg County, the county standards for landfill permits called for the zoning administrator to make certain determinations. Most were plainly objective (yard requirements, screening, hours of operation, access, and notification of adjoining property owners). Two determinations, though, required some judgement: whether the proposed use would be consistent with the county's land use plan and whether the cost estimates for reclamation were reasonable. Neighbors argued that the permit standards were quasi‐judicial in nature, and thus, the delegation to the administrator violated due process. The Supreme Court acknowledged that decisions requiring discretion are quasi‐judicial and must meet the elements of a fair trial, but the court also affirmed that some fact‐finding and determination may be involved in administrative decisions. Such administrative decisions must still be based on objective facts, not administrator discretion. In this case, the court deferred to the county’s determination, as

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evidenced in the adopted ordinance provisions, that these were objective standards that could be applied by administrative staff. In Butterworth v. City of Asheville, 247 N.C. App. 508, 786 S.E.2d 101 (2016), the North Carolina Court of Appeals emphasized that there are limits to administrative decision‐making: A decision requiring the exercise of judgment and discretion in applying general standards to a particular case is quasi‐judicial and due process requires that the board must follow the elements of a fair trial. In that case, the local ordinance allowed a modification to standards with a finding of “unusual and unnecessary hardship.” The city treated that determination as administrative, but the court ruled that such a standard is essentially a variance. It requires the exercise of judgment and discretion, so it is quasi‐judicial. The court did clarify that some modifications may be allowed as administrative decisions, but such modifications must be based on “specific, neutral, and objective criteria.” The court identified acceptable administrative modifications in the Asheville code “such as the limitation of a deviation not in excess of ‘up to ten percent or 24 inches . . . from the approved setback,’ or a reduction of no more than ‘25 percent in the number of parking spaces required[.]’”

Statutory Authorization

Conditional Zoning (Legislative) N.C.G.A. § 160D‐7‐3(b) states:

Conditional Districts. – Property may be placed in a conditional district only in response to a petition by all owners of the property to be included. Specific conditions may be proposed by the petitioner or the local government or its agencies, but only those conditions mutually approved by the local government and the petitioner may be incorporated into the zoning regulations. Conditions and site‐specific standards imposed in a conditional district shall be limited to those that address the conformance of the development and use of the site to local government ordinances, plans adopted pursuant to G.S. 160D‐5‐1, or the impacts reasonably expected to be generated by the development or use of the site. [] The zoning regulation may provide that defined minor modifications in conditional district standards that do not involve a change in uses permitted or the density of overall development permitted may be reviewed and approved administratively. Any other modification of the conditions and standards in a conditional district shall follow the same process for approval as are applicable to zoning map amendments. If multiple parcels of land are subject to a conditional zoning, the owners of individual parcels may apply for modification

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of the conditions so long as the modification would not result in other properties failing to meet the terms of the conditions. Any modifications approved shall only be applicable to those properties whose owners petition for the modification.

Special Use Permits (Quasi‐Judicial) N.C.G.A. § 160D‐705(c) states:

Special Use Permits. – The regulations may provide that the board of adjustment, planning board, or governing board hear and decide special use permits in accordance with principles, conditions, safeguards, and procedures specified in the regulations. Reasonable and appropriate conditions and safeguards may be imposed upon these permits. Where appropriate, such conditions may include requirements that street and utility rights‐of‐way be dedicated to the public and that provision be made for recreational space and facilities. Conditions and safeguards imposed under this subsection shall not include requirements for which the local government does not have authority under statute to regulate nor requirements for which the courts have held to be unenforceable if imposed directly by the local government. The regulation may provide that defined minor modifications to special use permits that do not involve a change in uses permitted or the density of overall development permitted may be reviewed and approved administratively. Any other modification or revocation of a special use permit shall follow the same process for approval as is applicable to the approval of a special use permit. If multiple parcels of land are subject to a special use permit, the owners of individual parcels may apply for permit modification so long as the modification would not result in other properties failing to meet the terms of the special use permit or regulations. Any modifications approved shall only be applicable to those properties whose owners apply for the modification. The regulation may require that special use permits be recorded with the register of deeds.

Development Approvals (Administrative) N.C.G.A. § 160D‐403(d) states:

Changes. – After a development approval has been issued, no deviations from the terms of the application or the development approval shall be made until written approval of proposed changes or deviations has been obtained. A local government may define by ordinance minor modifications to development approvals that can be exempted or administratively approved. The local government shall follow the same development review and approval process

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required for issuance of the development approval in the review and approval of any major modification of that approval.

Sample Ordinance Language Changes to Prior‐Approved Developments

A. Major Amendments. Except as allowed under Minor Modifications below, all changes to

approved ____________ [INSERT ALL THAT APPLY: CONDITIONAL ZONING, SPECIAL USE

PERMIT, AND/OR OTHER DEVELOPMENT APPROVALS] are major amendments and shall follow

the same process applicable for the original approval.

B. Changes to Individual Parcels within a Conditional Zoning District. For a conditional zoning

district applicable to multiple parcels, the owners of individual parcels may apply for minor

modification or major amendment so long as the change would not result in other properties

failing to meet the terms of the conditions. Any approved changes shall only be applicable to

those properties whose owners petitioned for the change.

C. Minor Modifications. The _________ [insert appropriate title/position] is authorized to review

and approve administratively a minor modification to an approved ___________ [INSERT ALL

THAT APPLY: CONDITIONAL ZONING, SPECIAL USE PERMIT, AND/OR OTHER DEVELOPMENT

APPROVALS], subject to the following limitations.

1. General Limitations. The minor modification:

i. Does not involve a change in uses permitted or the density of overall

development permitted;

ii. Does not increase the impacts generated by the development on traffic,

stormwater runoff, or similar impacts beyond what was projected for the

original development approval; and

iii. Meets all other ordinance requirements.

2. Site Design. Site design minor modifications are limited adjustments to the terms or

design of an approved development plan or plat, including a site plan included as a

condition to a conditional zoning or special use permit. In addition to the general

limitations for minor modifications, a site design minor modification must:

i. Comply with underlying zoning standards and other applicable conditions of the

approval;

ii. Be limited to a minor change such as, without limitation, a minor adjustment to

road configuration or internal circulation, a minor adjustment to building

location, or a minor adjustment to utility alignment.

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3. Dimensional Standards. Dimensional standard minor modifications are adjustments to

the dimensional standards of the zoning ordinance. Dimensional standards may only be

modified upon a finding by the administrator, based on evidence from the permit

holder, that the modification is needed to address a site characteristic or technical

design consideration not known at the time of initial approval.

In addition to the general limitations for minor modifications, dimensional standard

minor modifications are limited to:

i. An adjustment to parking requirements up to the greater of __ spaces or ___

percent.

ii. An adjustment to setback requirements up to greater of __feet or __ percent.

iii. An adjustment to landscape standards up to __ percent.

D. Appeals and Variances. A decision on minor modification may be appealed to the Board of

Adjustment as an administrative determination. An applicant for a minor modification also may

apply for a variance from the Board of Adjustment.

Example Ordinance Provisions The following example ordinance provisions are drawn from North Carolina communities. These provisions were in place prior to the adoption of Chapter 160D. They are excerpted with minor noted edits to align with the guidance of Chapter 160D such as the prohibition on minor modifications for density.

City of Asheville – Minor Modifications for Conditional Use District Section 7‐9‐9. [Special Use Permits] (b) General requirements. . . .

(6) Minor modifications of the approved [special] use permit may be approved by the planning and development director. The minor modifications authorized herein are intended to provide relief where conditions, established by the [special] use permit granted, create a hardship based upon a unique physical attribute of the property itself or some other factor unique to the property which was not known at the time of permit approval and which subsequently rendered the land difficult or impossible to use due to the condition(s) imposed. The permit holder shall bear the burden of proof to secure the modification(s). Such modifications shall be limited to the following: a. A deviation of up to ten percent or 24 inches, whichever is greater, from the approved

setback, provided that the conditions for approving a deviation from the required setback

established by subsection 7‐11‐8(c)(1) of this chapter are met.

b. A reduction of up to 25 percent in the number of parking spaces required for the use

provided that the conditions established by subsection 7‐11‐8(c)(2) of this chapter are met.

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Currituck County – Minor Deviations to Conditional Rezonings Section 2.4.4 – Conditional Rezoning

(I) Minor Deviations from Approved Conceptual Development Plan Subsequent plans and permits for development within a conditional zoning district may include minor deviations from the approved conceptual development plan, provided such deviations are limited to changes addressing technical considerations that could not reasonably be anticipated during the conditional zoning classification process, or any other change that has no material effect on the character of the approved development. Changes in the following shall constitute minor deviations that may be approved by the Planning Director:

(a) Driveway locations; (b) Structure floor plan revisions; (c) Minor shifts in building size or location; and . . .

(2) Material Changes are Amendments Changes that materially affect the basic configuration of the approved conceptual development plan are not considered minor deviations, and shall only be changed as amendments to the conditional rezoning in accordance with Section 2.3.14, Amendment of Development Approval.

Town of Morrisville – Minor Modification Procedure for Special Use Permits Section 2.5.5 Special Use Permit (C)(7)(d) Minor Modifications Allowed

(1) Subsequent development applications may incorporate minor changes from the development defined by the Special Use Permit approval, without the need to amend the Special Use Permit in accordance with Section 2.4.8.D, Modification or Amendment of Approval, where the Planning Director determines that the changes:

(A) Continue to comply with this Ordinance; (B) Are necessary to comply with conditions of approval; or (C) Are consistent with the Special Use Permit approval or any Town Council approval on which the Special Use Permit approval was based (e.g., PD Plan/Agreement approval, Conceptual Master Plan Approval). Consistency means the changes would not significantly alter the development’s general function, form, intensity, character, demand on public facilities, impact on adjacent properties, or other characteristic from that indicated by the Special Use Permit approval or any prior Town Council approval on which it was based.

(2) In any case, the following changes from the Special Use Permit approval or Town Council approval on which it was based shall constitute a major change requiring amendment of the Special Use Permit in accordance with Section 2.4.8.D, Modification or Amendment of Approval:

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(A) A change in a condition of approval; [(B) A change in uses permitted or the density of overall development.] [(C) A change greater than ten percent in the ratio of gross floor area devoted to residential uses to that devoted to nonresidential floor area; and . . . (D) An increase greater than ten percent in the amount of land devoted to nonresidential uses[.]

. . .

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WORKSHOP VERSION

Overview Pursuant to Chapter 160D, North Carolina local governments may incorporate certain maps by reference in a development ordinance. The North Carolina General Assembly made that authority to incorporate maps by reference effective immediately under through Session Law 2020‐3 (Senate Bill 704). This guidance provides detail on how such a provision can be legally established and administered, sample ordinance language, and examples of ordinance provisions used by communities in North Carolina.

Basic Procedures The N.C. General Statutes establish several basic procedures regarding development regulation maps. These include the following:

Duly adopted zoning maps. In general, zoning district boundaries must be established

pursuant to the standard procedures for legislative action outlined in Article 6 of Chapter

160D, including planning board review and comment, public notice, legislative hearing, and

adoption by the governing board with statements of plan consistency and reasonableness.

Inclusion of maps by reference. Development regulations may also incorporate certain

maps by reference, including flood insurance rate maps (FIRMs), watershed boundary maps,

and other maps officially adopted by state or federal agencies. This can include approved

updates to these maps.

Maintenance for public inspection. Chapter 160D provides that duly adopted zoning maps

must be maintained for public inspection by the local government clerk or another office

specified by the development regulation. Caselaw confirms that local governments must

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maintain historic zoning maps for reference. The local government must also maintain for

public inspection the currently effective version of any map incorporated by reference.

Maps may be maintained in paper or digital format.

Key Considerations When drafting language to establish the procedures for incorporating maps by reference, it is important to make sure the resulting language 1) complies with applicable law, including the provisions of Chapter 160D, and 2) meets the policy interests of the governing board. Here are some other important considerations.

Federal floodplain map requirements. Local government flood regulations must use state

and federally approved flood hazard delineations, and local governments must amend their

local flood hazard ordinances within six months of the date of the federal final

determination for revised Flood Insurance Rate Maps (FIRMs). FIRMs go through significant

review and public comment, and once they are approved, they must be adopted by local

governments without amendment.

The provision in Chapter 160D allows (but does not require) updated flood hazard

delineations to be automatically incorporated into local ordinances. Incorporating FIRMs by

reference can save time and money, and can help prevent inadvertent use of outdated and

inaccurate maps or zoning district delineations.

Options for referencing maps. A local development ordinance may incorporate a specific

map (the 2017 version, for example) or the most recent officially adopted version of the

map.

Maintaining current and past zoning maps. As has been established in case law, local

governments must maintain current and past zoning maps.

Map format. Current and prior maps may be maintained in a paper or digital format

approved by the local government.

Automatic updating of zoning district boundaries. Chapter 160D confirms that when

zoning district boundaries are based upon incorporated maps, the local ordinance may

provide that the zoning district boundaries are automatically amended to remain consistent

with the incorporated map, provided the clerk maintains the incorporated map for public

inspection.

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Certification by local government clerk. A copy of a map is admissible as evidence in a legal

proceeding when the copy is certified by the local government clerk in accordance with G.S.

153A‐50 or 160A‐79.

Including technical standards by reference. In addition to maps, state statutes also allow

“any published technical code or any standards or regulation promulgated by any public

agency” to be incorporated into an ordinance by reference.

Statutory Authorization The statutory language for incorporating maps by reference included in Chapter 160D, Section 160D‐105 is provided below for quick reference. § 160D‐105. Maps.

(a) Zoning Map. – Zoning district boundaries adopted pursuant to this Chapter shall be

drawn on a map that is adopted or incorporated within a duly adopted development

regulation. Zoning district maps that are so adopted shall be maintained for public

inspection in the office of the local government clerk or such other office as

specified in the development regulation. The maps may be in paper or a digital

format approved by the local government.

(b) Incorporation by Reference. – Development regulations adopted pursuant to this

Chapter may reference or incorporate by reference flood insurance rate maps,

watershed boundary maps, or other maps officially adopted or promulgated by

State and federal agencies. For these maps a regulation text or zoning map may

reference a specific officially adopted map or may incorporate by reference the most

recent officially adopted version of such maps. When zoning district boundaries are

based on these maps, the regulation may provide that the zoning district boundaries

are automatically amended to remain consistent with changes in the officially

promulgated State or federal maps, provided a copy of the currently effective

version of any incorporated map shall be maintained for public inspection as

provided in subsection (a) of this section.

(c) Copies. – Copies of the zoning district map may be reproduced by any method of

reproduction that gives legible and permanent copies and, when certified by the

local government clerk in accordance with G.S. 160A‐79 or G.S. 153A‐50, shall be

admissible into evidence and shall have the same force and effect as would the

original map.

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Sample Ordinance Language The following text is sample of ordinance language that a local government could use to include FIRMs by reference in its local codes. A similar construction can be used for other maps that a local government would like to include by reference. Incorporation of Flood Insurance Rate Maps (FIRM) by Reference

The standards in this section shall apply to all property within the special flood hazard area, as shown on the most recently adopted Flood Insurance Rate Maps (FIRMs) for [INSERT JURISDICTION NAME HERE]. The applicable FIRMs are incorporated by reference automatically into the [INSERT JURISDICTION NAME HERE] zoning map. The clerk shall maintain a digital or paper copy of the applicable FIRMs for public inspection.

Example Ordinance Provisions This section includes sample ordinance language adopting maps by reference from the following local governments: Currituck County, Moore County, City of Charlotte, and Durham City/County. Please note that many of these statements were developed prior to the 2019 passage of Chapter 160D. Currituck County Unified Development Ordinance (2020) 7.4 Flood Damage Prevention 7.4.2. Applicability

The standards in this section shall apply to all lands within the special flood hazard area, as depicted in the Digital Flood Insurance Rate Maps (DFIRM) for Currituck County and incorporated by reference into this Ordinance.

Moore County Unified Development Ordinance (2020) 16.2 Basis for Establishing the Areas of Special Flood Hazard

The Special Flood Hazard Areas are those identified under the Cooperating Technical State (CTS) agreement between the State of North Carolina and FEMA in its Flood Insurance Study (FIS) and its accompanying Flood Insurance Rate Maps (FIRM), for Moore County dated October 17, 2006, which are adopted by reference and declared to be a part of this ordinance.

City of Charlotte Development Code (2020) Chapter 9 ‐ FLOODPLAIN REGULATIONS

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Sec. 9‐5(c) This chapter is intended to permit only that development within the floodplain which is appropriate in light of the probability of flood damage and presents a reasonable social and economic use of land in relation to the hazards involved. The regulations hereinafter set forth shall apply to all property located within the special flood hazard area as shown on the flood insurance rate maps (FIRM) including FEMA and/or locally approved revisions to data shown on the FIRMs. It is the intent that these regulations combine with and coordinate with the zoning ordinance regulations for the zoning district in which such property is located. Any use not permitted by the zoning regulations shall not be permitted in the special flood hazard area, and any use permitted by the zoning regulations shall be permitted in these districts only upon meeting conditions and requirements as prescribed in this chapter.

Durham Unified Development Ordinance (2020) 8.5.6 Maps and On‐Site Determinations A. Maps

All of the following maps shall be used to identify surface water subject to the requirements of this section:

1. The most recent version of the soil survey map prepared by the Natural Resources Conservation Service of the United States Department of Agriculture, which means the most recent hard copy paper bound map or CD‐ROM or PDF of such map; and 2. The most recent version of the 1:24,000 scale (7.5 minute) quadrangle topographic map prepared by the United States Geologic Survey (USGS); and 3. Outside of the Neuse River Basin, any map approved by the Geographic Information Coordinating Council, the North Carolina Environmental Management Commission and both governing bodies as more accurate than the maps listed in paragraphs 1 and 2 above. However, such map shall not be used for buffer delineation on projects that are existing and ongoing under paragraph 8.5.7, Existing Use Exemption.

Surface water shall be deemed present if it is at least approximately shown on any map. If any surface water is depicted differently on different maps, the most restrictive depiction shall apply.

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WORKSHOP VERSION

Overview Chapter 160D clarifies the rules for conflicts of interest for local government elected officials, appointed board members, and administrative staff. These clarified rules must be incorporated into local ordinances, procedures, or policies. This guidance provides more detail on how the new conflict of interest provisions can be legally established and administered, outlines sample language that may be incorporated into local ordinances or policies, surveys ordinance provisions used by communities in North Carolina, and provides additional resources on ethics in land development regulation.

Basic Provisions Chapter 160D makes significant changes to the various conflict‐of‐interest provisions that apply to governing boards, advisory boards, and staff administering development regulations. Those various provisions are consolidated them in G.S. 160D‐109. Governing Boards and Appointed Boards

Financial conflicts. A board member must not vote on a decision if the outcome would have

a direct, substantial, and readily identifiable financial impact on the board member.

Relationship conflicts. A board member must not vote on a decision if the board member

has a close family, business, or associational relationship with certain interested individuals

(relationship with the property owner for a rezoning, the applicant for a text amendment,

and an affected person for quasi‐judicial decision).

Additional Conflicts for Quasi‐Judicial Decisions. In addition to the financial and relationship

conflicts, for quasi‐judicial decisions a board member also must not vote if the board

member has bias or undisclosed ex parte communications.

Resolving objections. Board members may recuse themselves. If there is objection to a

board member participating, and the member chooses not to recuse, then the remaining

members of the board must vote on the member’s participation.

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Administrative Staff

Financial conflicts. A staff person cannot make a decision if the outcome would have a

direct, substantial, and readily identifiable financial impact on that person.

Relationship conflicts. A staff person cannot make a decision if that person has a close

familial, business, or other associational relationship with the applicant or other person

subject to the decision.

Business conflicts. Staff cannot have a financial or employment interest in a business with a

financial interest in a development in the jurisdiction. An exception is provided for when the

staff person is the owner of the property.

Additional conflicts. The conflict standard also prohibits administrative staff from engaging

in work that is inconsistent with their duties or the interest of the local government. Local

government policy can help clarify those expectations.

Conflicts and Staff Recommendations. While the statute does not explicitly refer to staff

recommendations (such as a recommendation on a rezoning), it is prudent to apply the

same conflict of interest standards as when the administrator is the decision‐maker.

Key Considerations When drafting ordinance language to address conflicts of interest, it is important to make sure the resulting language complies with applicable law and meets the policy interests of the governing board. Here are some important considerations.

Statutory Minimum. The statutory conflict of interest provisions set the floor for conflict of

interest standards. Local governments may choose to add stricter conflict provisions. For

administrative staff, for example, state law prohibits staff from engaging in work that is

inconsistent with their duties or the interest of the local government. Local government

policy can help strengthen and clarify that requirement. Additionally, note that these

conflict of interest standards are in addition to, not replacing, other various legal and ethical

limitations.

Quick Guide. Consider providing a reference sheet or summary of applicable conflicts of

interest to decision‐makers, staff, and other participants in the local planning process.

Ordinance Drafting Options. Local governments can choose from several options for

incorporating the conflict of interest standards from Chapter 160D: copy the statutory

language, incorporate the statutory language by reference, or craft more restrictive local

rules. Each is discussed below. Regardless of the approach, it is helpful for a local

government to provide a quick guide of applicable conflicts provisions.

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o Cut‐and‐Paste. A local government may copy the state statutory provisions into the

local ordinance. The benefit of this approach is that it would serve as a reminder to

decision‐makers, staff, and other participants in the local planning process of what

the state requirements are and provide an accessible reference. The drawback is

that the statutes may change again, requiring a local government to update this

provision of its ordinance. This language could be included altogether in a single

section on conflicts of interest in the local development regulations, or broken out

into the separate ordinance sections describing the responsibilities of the governing

board, appointed boards, administrative staff, and quasi‐judicial bodies in the land

use decision‐making process. If provisions are separated to different sections, take

care to ensure the language for “Resolution of Objection” and “Familial relationship”

is included or referenced in each section.

o Incorporate by Reference. The local government may adopt the state conflict of

interest standard by incorporating the provisions by reference. This would provide

the benefit of reminding decision‐makers, staff, and other participants in the local

planning process that there are state requirements, but would make them a little bit

harder to find, unless the local government included links to the state statutes or

provided a reference page or summary. The drawback again is that the statute

references might change, requiring a local ordinance change, although this is less

likely than a change in the specific statutory language. If local governments would

like to take this approach, they can include a reference to “North Carolina General

Statutes §160D‐1‐9. Conflicts of interest” in a single section on conflicts of interest in

the local development regulations, or by referencing the appropriate statutory

subsections (a, b, c, d) in the separate ordinance sections describing the

responsibilities of the governing board, appointed boards, administrative staff, and

quasi‐judicial bodies in the land use decision‐making process.

o Strengthen State Minimums. A local government may establish more stringent local

ethics requirements. A local government may find benefit in establishing additional

ethical requirements beyond what state law currently requires. For example, a local

provision could establish requirements regarding gifts, equal treatment of local

government clients, incompatible employment, and other ethical considerations,

and could enumerate possible penalties for violations. Sometimes these and other

conflict of interest requirements are included in local Human Resources policies.

Continuing ethics education. State law requires local government governing board

members to take two hours of ethics education within a year after each election or

appointment to office. State law does not require continuing ethics education for local

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government employees and local appointed board members. However, a local government

can establish such a requirement through a local policy or ordinance.

Local ethics policy. Beyond these conflict of interest requirements for development

regulations decisions, each local governing board subject to the state ethics education

requirement must adopt a local ethics policy that directs board members to:

A) obey all applicable laws regarding official actions taken as a board member. B) uphold the integrity and independence of the board member's office. C) avoid impropriety in the exercise of the board member's official duties. D) faithfully perform the duties of the office. E) conduct the affairs of the governing board in an open and public manner, including

complying with all applicable laws governing open meetings and public records.

Statutory Authorization Here is G.S. 160D‐109 for quick reference. § 160D‐1‐9. Conflicts of interest.

(a) Governing board. A governing board member shall not vote on any legislative decision regarding a development regulation adopted pursuant to this Chapter where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member. A governing board member shall not vote on any zoning amendment if the landowner of the property subject to a rezoning petition or the applicant for a text amendment is a person with whom the member has a close familial, business, or other associational relationship. (b) Appointed boards. Members of appointed boards shall not vote on any advisory or legislative decision regarding a development regulation adopted pursuant to this Chapter where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member. An appointed board member shall not vote on any zoning amendment if the landowner of the property subject to a rezoning petition or the applicant for a text amendment is a person with whom the member has a close familial, business, or other associational relationship. (c) Administrative staff. No staff member shall make a final decision on an administrative decision required by this Chapter if the outcome of that decision would have a direct, substantial, and readily identifiable financial impact on the staff member or if the applicant or other person subject to that decision is a person with whom the staff member has a close familial, business, or other

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associational relationship. If a staff member has a conflict of interest under this section, the decision shall be assigned to the supervisor of the staff person or such other staff person as may be designated by the development regulation or other ordinance.

No staff member shall be financially interested or employed by a business that is financially interested in a development subject to regulation under this Chapter unless the staff member is the owner of the land or building involved. No staff member or other individual or an employee of a company contracting with a city local government to provide staff support shall engage in any work that is inconsistent with his or her duties or with the interest of the local government, as determined by the local government. (d) Quasi‐judicial decisions. A member of any board exercising quasi‐judicial functions pursuant to this Chapter shall not participate in or vote on any quasi‐judicial matter in a manner that would violate affected persons’ constitutional rights to an impartial decision maker. Impermissible violations of due process include, but are not limited to, a member having a fixed opinion prior to hearing the matter that is not susceptible to change, undisclosed ex parte communications, a close familial, business, or other associational relationship with an affected person, or a financial interest in the outcome of the matter. (e) Resolution of Objection. If an objection is raised to a board member’s participation at or prior to the hearing or vote on that matter and that member does not recuse himself or herself, the remaining members of the board shall by majority vote rule on the objection. (f) Familial relationship. For purposes of this section, a close familial relationship means a spouse, parent, child, brother, sister, grandparent, or grandchild. The term includes the step, half, and in‐law relationships.

Example Ordinance Provisions This section includes sample ordinance language regarding ethics and conflicts of interest. Please note that many of these statements were developed prior to the 2019 passage of Chapter 160D.

GOVERNING BOARDS Alleghany County: Code of Ethics for the Board of Commissioners of Alleghany County, NC (2020)

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http://alleghanycounty‐nc.gov/CommissionersPDFS/CodeofEthics.pdf Notes: Includes language that provides more detail on how to comply with the five principles required by the state for governing boards.

City of Charlotte: Code of Ethics, Gift Policy, and Disclosure Requirements for the Mayor and City Council (2020) https://charlottenc.gov/CityClerk/Documents/Code%20of%20Ethics%20Mayor%20and%20Council.pdf

Notes: Includes a gifts policy and a procedure for filing complaints. Cumberland County: Board of Commissioners Code of Ethics (2020) https://www.ncacc.org/DocumentCenter/View/2736/Cumberland‐County‐Code‐of‐Ethics?bidId=

Notes: Includes language that provides more detail on how to comply with the five principles required by the state for governing boards.

Town of Kernersville: Code of Ethics for the Kernersville Board of Aldermen (Resolution R‐2019‐36) (2020) https://toknc.civicweb.net/document/20774

Notes: Includes additional principles beyond the five required by state law for governing boards.

APPOINTED BOARDS Town of Nags Head Unified Development Ordinance (2020) Section 2.3 Conflicts of Interest.

Members of the Board of Commissioners, Planning Board, and Board of Adjustment must act in the public interest and not to advance their own financial interests. A member of an elected board, planning board, or board of adjustment may not vote on an UDO action where there is a potential financial conflict of interest. A board member with a financial interest in the outcome of the decision may not participate in making decisions on rezonings and other legislative zoning matters. With quasi‐judicial zoning decisions, board members may not participate in a matter involving someone with whom they have a close family, associational, or business relationship, nor may they participate if they have a bias (defined as fixed opinion that is not susceptible to change upon hearing the facts at the hearing). When a member is disqualified for a conflict of interest, that member must not participate in the hearing in any way, neither asking questions, nor debating, nor voting on the case. If a member states a conflict of interest or if an objection is raised to a member’s participation, the remaining members shall by majority vote decide if the member is excused from participation.

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City of Wilson Unified Development Ordinance (2020) Chapter 14: Administrative Agencies 14.7.3 CONFLICTS OF INTEREST

Members of boards and commissions shall not vote on recommendations, permits, approvals, or other issues where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member. No member shall be excused from voting except upon those matters as noted, above, or upon those others involving the consideration of his own financial interest or official conduct.

QUASI‐JUDICIAL BOARDS Buncombe County Zoning Ordinance (2020) DIVISION 3. BOARD OF ADJUSTMENT Sec. 78‐618. Rules of conduct.

(a) Members of the board of adjustment may be removed by the board of commissioners for cause, including violation of the rules stated in this section.

(b) Faithful attendance at meetings of the board of adjustment and conscientious performance of the duties required of members of the board of adjustment shall be considered a prerequisite of continuing membership on the board of adjustment.

(c) A member of the board of adjustment shall not participate in or vote on any quasi‐judicial matter in a manner that would violate affected persons' constitutional rights to an impartial decision maker. Impermissible conflicts include, but are not limited to, a member having a fixed opinion prior to hearing the matter that is not susceptible to change; undisclosed ex parte communications; a close familial, business, or other associational relationship with an affected person; or a financial interest in the outcome of the matter. If an objection is raised to a member's participation and that member does not recuse himself or herself, the remaining members shall by majority vote rule on the objection.

(d) No board of adjustment member shall discuss any case with any parties thereto prior to the public hearing on that case; provided however, that a member may receive and/or seek information pertaining to the case from the zoning administrator or any other member of the board of adjustment or its clerk prior to the hearing.

(e) Members of the board of adjustment shall not express individual opinions on the proper judgment of any case prior to its determination on that case.

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(f) No board of adjustment member shall accept any gift, whether in the form of a service, a loan, a thing of value, or a promise, from any person, firm, or corporation that, in the member's knowledge, is interested directly or indirectly in any manner whatsoever in business dealings with the county.

(g) No board of adjustment member shall accept any gift, favor, or thing of value that may tend to influence that board member in the discharge of duties. (h) No board of adjustment member shall grant any improper favor, service, or thing of value in the discharge of duties.

ADMINISTRATIVE STAFF City of Fayetteville (2020) Code of Ethics (click on the link below and scroll down to “Code of Ethics”) https://fayettevillenc.gov/government/city‐council/city‐council‐policies

Notes: Includes some provisions that are applicable to staff, includes a policy on gifts, establishes an Ethics Commission, and delineates a policy for determining violations and making appeals.

Other Resources on Ethics The UNC School of Government provides several publications on ethics and conflicts of interest, including

Frayda S. Bluestein and Norma R. Houston, “Chapter 7 ‐‐ Ethics and Conflicts of Interest,” County

and Municipal Government in North Carolina, 2nd Ed. (2014), Frayda S. Bluestein, ed.

A. Fleming Bell, II, Model Code of Ethics for North Carolina Local Elected Officials (2010)

A. Fleming Bell, II, Ethics, Conflicts, and Offices: A Guide for Local Officials, 2nd Ed. (2010)

Other codes of ethics that provide guidance or are often applicable to local staff include the AICP Code of Ethics and the ICMA Code of Ethics. Here are some selections that are particularly applicable to local government staff in their regular work on planning issues. Code of Ethics of the American Institute of Certified Planners (AICP) https://www.planning.org/ethics/ Principles to Which We Aspire:

A.2.c. We shall avoid a conflict of interest or even the appearance of a conflict of interest in accepting assignments from clients or employers.

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Rules of Conduct:

B5. We shall not, as public officials or employees, accept from anyone other than our public employer any compensation, commission, rebate, or other advantage that may be perceived as related to our public office or employment. B6. We shall not perform work on a project for a client or employer if, in addition to the agreed upon compensation from our client or employer, there is a possibility for direct personal or financial gain to us, our family members, or persons living in our household, unless our client or employer, after full written disclosure from us, consents in writing to the arrangement.

AICP Ethical Principles in Planning https://www.planning.org/ethics/ethicalprinciples/ Planning process participants continuously strive to achieve high standards of integrity and proficiency so that public respect for the planning process will be maintained. Planning Process Participants should:

1. Exercise fair, honest and independent judgment in their roles as decision makers and advisors; 2. Make public disclosure of all "personal interests" they may have regarding any decision to be made in the planning process in which they serve, or are requested to serve, as advisor or decision maker. 3. Define "personal interest" broadly to include any actual or potential benefits or advantages that they, a spouse, family member or person living in their household might directly or indirectly obtain from a planning decision; 4. Abstain completely from direct or indirect participation as an advisor or decision maker in any matter in which they have a personal interest, and leave any chamber in which such a matter is under deliberation, unless their personal interest has been made a matter of public record; their employer, if any, has given approval; and the public official, public agency or court with jurisdiction to rule on ethics matters has expressly authorized their participation; 5. Seek no gifts or favors, nor offer any, under circumstances in which it might reasonably be inferred that the gifts or favors were intended or expected to influence a participant's objectivity as an advisor or decision maker in the planning process;

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Code of Ethics for the International City Managers Association (ICMA) https://icma.org/icma‐code‐ethics Tenet 12. Public office is a public trust. A member shall not leverage his or her position for personal gain or benefit. GUIDELINES Gifts. Members shall not directly or indirectly solicit, accept or receive any gift if it could reasonably be perceived or inferred that the gift was intended to influence them in the performance of their official duties; or if the gift was intended to serve as a reward for any official action on their part. The term “Gift” includes but is not limited to services, travel, meals, gift cards, tickets, or other entertainment or hospitality. Gifts of money or loans from persons other than the local government jurisdiction pursuant to normal employment practices are not acceptable. Members should not accept any gift that could undermine public confidence. De minimus gifts may be accepted in circumstances that support the execution of the member’s official duties or serve a legitimate public purpose. In those cases, the member should determine a modest maximum dollar value based on guidance from the governing body or any applicable state or local law. The guideline is not intended to apply to normal social practices, not associated with the member’s official duties, where gifts are exchanged among friends, associates and relatives. Investments in Conflict with Official Duties. Members should refrain from any investment activity which would compromise the impartial and objective performance of their duties. Members should not invest or hold any investment, directly or indirectly, in any financial business, commercial, or other private transaction that creates a conflict of interest, in fact or appearance, with their official duties. In the case of real estate, the use of confidential information and knowledge to further a member’s personal interest is not permitted. Purchases and sales which might be interpreted as speculation for quick profit should be avoided (see the guideline on “Confidential Information”). Because personal investments may appear to influence official actions and decisions, or create the appearance of impropriety, members should disclose or dispose of such investments prior to accepting a position in a local government. Should the conflict of interest arise during employment, the member should make full disclosure and/or recuse themselves prior to any official action by the governing body that may affect such investments.

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This guideline is not intended to prohibit a member from having or acquiring an interest in or deriving a benefit from any investment when the interest or benefit is due to ownership by the member or the member’s family of a de minimus percentage of a corporation traded on a recognized stock exchange even though the corporation or its subsidiaries may do business with the local government. Personal Relationships. In any instance where there is a conflict of interest, appearance of a conflict of interest, or personal financial gain of a member by virtue of a relationship with any individual, spouse/partner, group, agency, vendor or other entity, the member shall disclose the relationship to the organization. For example, if the member has a relative that works for a developer doing business with the local government, that fact should be disclosed. Confidential Information. Members shall not disclose to others, or use to advance their personal interest, intellectual property, confidential information, or information that is not yet public knowledge, that has been acquired by them in the course of their official duties. Information that may be in the public domain or accessible by means of an open records request, is not confidential. Private Employment. Members should not engage in, solicit, negotiate for, or promise to accept private employment, nor should they render services for private interests or conduct a private business when such employment, service, or business creates a conflict with or impairs the proper discharge of their official duties. Representation. Members should not represent any outside interest before any agency, whether public or private, except with the authorization of or at the direction of the appointing authority they serve. Endorsements. Members should not endorse commercial products or services by agreeing to use their photograph, endorsement, or quotation in paid or other commercial advertisements, marketing materials, social media, or other documents, whether the member is compensated or not for the member’s support. Members may, however, provide verbal professional references as part of the due diligence phase of competitive process or in response to a direct inquiry. Members may agree to endorse the following, provided they do not receive any compensation: (1) books or other publications; (2) professional development or educational services provided by nonprofit membership organizations or recognized educational institutions; (3) products and/or services in which the local government has a direct economic interest. Members’ observations, opinions, and analyses of commercial products used or tested by their local governments are appropriate and useful to the profession when included as part of professional articles and reports.

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