When North Carolina’s state government created local governments like the city of Asheville and Buncombe County, it didn’t hand out magic wands.
Court rulings and state laws sometimes mean local governments can’t adopt zoning rules their constituents might like — and in some cases, it’s uncertain just how much authority municipalities have, say Asheville City Attorney Brad Branham and other lawyers working in the field.
“We can only do what the state legislature lets us do,” Branham says. “Where that line is, is not always specified.”
Unlike in so-called “home rule” states, few barriers prevent the General Assembly from limiting local power or simply telling local governments what to do. But courts usually say the general state laws that do allow local officials to regulate many activities can be interpreted relatively broadly.
Some restrictions on local zoning authority can be quite specific. For example, state law says local governments can’t make different zoning rules for a college’s official fraternity and sorority houses than for Greek houses not recognized by a school.
Since Republicans took control of the General Assembly in 2011, state legislators have not been shy about limiting local government authority if they see something they don’t like. Orange County used to have special state permission to charge an impact fee for school construction needs caused by new development, a power not granted to most counties or municipalities. Legislators took it away in 2017. In 2013, the state struck the ability of Asheville and Weaverville to apply their zoning rules to property close to their borders, a power enjoyed by almost all other cities and towns in the state.
Other restrictions stem from broader constitutional principles, like those in the federal 14th Amendment saying states — and, by implication, their local governments — cannot “deprive any person of life, liberty, or property, without due process of law.”
Here’s a capsule look at what local governments can and cannot do when it comes to zoning and land use, as well as some areas where their powers are unclear.
- Regulate what gets built where. One of local governments’ basic powers is to establish zoning ordinances and maps that set out where different types of land uses, such as single-family homes, apartments, retail stores and industrial plants, can be located. Arbitrary rules can be struck down in court, but the power to institute zoning rules is undisputed.
- Dictate the details. Local governments can require that buildings be set back a certain distance from property lines or that they be built flush with the front of a lot in a downtown setting. They can require buffers of trees and shrubs between different lots, especially when one type of use sits next to another.
- Keep it dry. Governments can require that new buildings not worsen flooding. That includes requiring developers to channel and contain stormwater and to ensure that buildings will withstand floods. The most common compliance method is to elevate the lowest occupied floor of a building above the level a 100-year flood is expected to reach. Property owners can’t get federal flood insurance unless their local government has an ordinance requiring flood prevention measures.
- Call a halt – for a little while. Governments can impose moratoriums on some types of development while they consider new restrictions, as Asheville did with hotels in 2019 while the city wrote new rules on where and how they can be built. The moratorium must be temporary – usually less than two years, says Adam Lovelady, a professor at the University of North Carolina Chapel Hill School of Government — and in all but a few cases can’t block projects approved before the moratorium was imposed.
- Provide for traffic. Local governments can require developers to make road improvements before their projects are hooked up to the existing system. Common measures include installing a new traffic light, building turn lanes or widening the pavement. Improvements don’t have to be right at the entrance to the development, but their scale and location must have some relationship to the amount of traffic a development will generate. Local governments can also require developers to build sidewalks, bike lanes and bicycle parking, although not all do this.
- Build or subsidize affordable housing. Most local governments are more likely to give a developer financial help, either through tax breaks or reduced permit fees, than they are to build affordable housing themselves.
- Make a deal. Zoning rules sometimes allow a developer more freedom if a project provides facilities or benefits a local government wants. A common example is allowing construction of more housing if some of the units are set aside as affordable.
- Protect mountain views. Local governments can limit the height of new buildings on mountain ridges. They also have authority to regulate construction on steep slopes.
Maybe, maybe not
- Dictate building style. State law specifically says local governments can’t require one- or two-family homes be built in a particular architectural style or impose other rules on appearance, like requiring certain paint colors. However, locally designated historic districts and landmarks are an exception: Governments have authority to set up design standards for changes to existing buildings and new construction to require that they fit in with the historic context.
- Lay down design lines. Governments can also adopt broad design rules, like ensuring that windows make up a certain percentage of a wall or setting a maximum height or size for buildings. And officials can consider design issues when deciding whether to approve some larger projects. But there’s some uncertainty about just how far local governments can go, UNC’s Lovelady says, because state law is largely silent on the issue. A blanket rule dictating the architectural style of new buildings outside a historic district is probably beyond governments’ authority, he says.
- Regulate group homes. State law says family care homes, which house up to six people with physical or mental disabilities, must be allowed in all residential zones in a local government’s jurisdiction. However, the rules vary for other types of small group facilities, like halfway houses.
- Call a halt forever. “For the most part, you don’t have the authority to simply ban a land use,” Asheville City Attorney Branham says; for example, Asheville couldn’t halt all hotel construction indefinitely. Lovelady has the same view. Courts have not given a “clear answer,” he says, and a small resort town might be able to argue there simply isn’t room for some types of uses. But, he adds, “for most jurisdictions in the state, allowing for lawful land uses somewhere in the jurisdiction is certainly prudent, if not required.”
- Keep your neighbor from building anything. In most cases, government can’t make a private landowner keep their property as is for the long term without paying compensation. State law even sets out a procedure whereby landowners can get exceptions to zoning rules that would otherwise prevent them from getting an economic benefit from their property. As Buncombe County Planning Director Nathan Pennington puts it, if you like your view of the woods across the street and want to ensure it will stay that way, “The best way to protect yourself … is a property acquisition.” In other words: Buy it.
- Act without adequate reason. Courts can and do strike down development decisions that judges decide were made without a sound basis. They’ll often look to see whether a decision fits with a community’s existing ordinances and comprehensive plan.
- Refuse to consider a proposal. If an application for a project is properly submitted, a government can’t just toss it in the trash.
- Prohibit mobile homes. Generally, a city or county must allow them somewhere in their jurisdiction.
- Keep renters out. Turning down a residential project because its houses or apartments will be rented out instead of owner occupied is not allowed. Development rules must be the same for rental housing as for owner-occupied housing.
- Control rents. State law specifically prohibits government rent-control rules.
- Block affordable housing. Turning down a development because it would include affordable housing is illegal. The only exception is to avoid concentrations of affordable housing in one part of a government’s jurisdiction.
- Discriminate. Zoning and land-use decisions can’t be based on the race, religion, ethnicity, gender or other protected statuses of property owners, applicants or residents. Governments also are not supposed to let officials’ opinions of a property owner or applicant affect zoning decisions. That extends to consideration of the brand of a proposed store and whether it is a chain or locally owned, Lovelady says.
- Prevent demolition of historic buildings. Governments can make a property owner wait for a year before tearing down buildings within local historic districts or landmarks, with the goal of seeking alternatives to demolition, but work can proceed after that.
- Take it back. Generally, the rules in place when a property owner or developer applies for permission to build are the ones that must apply when a government gives the project a thumbs up or thumbs down. For instance, if a property’s zoning allows buildings up to 10 stories when a developer seeks a permit, a municipality can’t block it by reducing the limit to five stories. And once a project is permitted, that permission stays in place for a period of time, even if the applicant doesn’t start right away or sells the property to someone else.