Tree Protection, Land Subdivision, and Development

Agreements:2005 Legislation

Richard DuckerSchool of Government

UNC – Chapel Hill

Tree Protection/ForestryG.S. 160A-458.5(b)

• No local regulation of forestry if – Forest land

assessed at present –use value

– Forestry conducted according to forestry management plan

Tree Protection/ForestryG.S. 160A-458.5(c )

• Local regulations O.K. if:– Adopted under

planning and land development power

– Needed to comply with federal or state law

– Applied to trees that affect city streets

– Adopted under pre-existing local act

Tree Protection/ForestryG.S. 160A-458.5(c)(1)

• LG may withhold development approval for 3 years if clearing results in removal of substantially all of protected trees

Subdivision Plat Review G.S. 160A-371, -373

• Subdivision and other• land development

authority may be merged into UDO

• Different review procedures for different classes of subdivisions

• Approval by technical review committee or staff person

Standards for Plat Approval G.S. 160A-371

• Approval must be based on criteria

• If standards discretionary, then criteria must provide adequate guiding standards

Appeals of Subdivision Plat Review Decisions

• Administrative appeal within local government

• Judicial review– Writ of mandamus

• Compels plat approval if ministerial

• Compels approval if unauthorized conditions added

– Writ of certiorari• Appropriate if quasi-

judicial process used involving

– Public hearing– Discretionary

standards

Subdivision Improvement Performance Guarantees

G.S. 160A-331

• Facilities must be tied to “plans”

• Ordinance must provide a range of performance guarantee options

• Developer elects what type of guarantee used

Definition of “Subdivision”G.S. 160A-376

• Now reads: “divisions into two or more lots, building sites when any one or more of those divisions is created for sale or development”

• No exemption for first lot out of a tract

Large Tract

Small Lot

Remedies for Subdivision Ordinance Violations

G.S. 160A-375(a)

• Local government may withhold building permit for lot in illegal subdivision

• Court may order correction or abatement of violation

Pre-sale of Lots Allowed G.S. 160A-375(b) & (c)

• Pre-sale of lots allowed after preliminary plat approval but before final approval

• Consumer purchasers of presold lots (but not builders) entitled to copy of preliminary plat and various disclosures when contract executed

Infrastructure Reimbursement Agreements

G.S. 160A-499 & -320• Model One:

– Applies to range of facilities that are part of city’s capital improvement plan

– Private contractor may have to use competitive bidding

• Model Two– Applies to public

enterprises– Public cost must be less

than $250,000– Public cost must not

exceed cost that would have been incurred if other construction procedures used

Infrastructure Reimbursement Agreements

G.S. 160A-309

• Model Three:– Authorizes street-

related agreements inside city limits

– Public cost less than $250,000

– Public cost must not exceed cost that would have been incurred if other construction methods had been used

Development AgreementsG.S. 160A-400.20 to -400.32

Development Agreements G.S. 160A-400.20 to -400.32

• Agreement may not impose a tax or fee or involve regulatory authority not otherwise allowed. No municipal promises to:– Refrain from annexing– Open, close, or build streets– Refrain from rezoning

• Agreement may not impose developer “exactions” and impact fees if not otherwise authorized by law

• Ordinances in effect when agreement executed remain in effect for life of agreement

• Agreement must provide a development schedule with commencement and completion dates for intervals no greater than five years

• Agreements must be recorded and run with the land