When navigating the world of municipal land-use decisions, one of the most important things to understand is who’s doing the deciding. Often, the elected members of the city or town Council will be the ultimate decision-makers – perhaps after receiving the guidance of paid staff or a volunteer board. Sometimes, staff or appointed volunteers are the deciders themselves. If you’re pursuing a rezoning or development permit in North Carolina, you must know who’s who.
Council
The city or town Council carries the heaviest weight with respect to land-use decisions. In some jurisdictions, this body of elected officials may use a different name such as Commissioners or Aldermen. The Council creates local zoning and development laws called “ordinances” and decides any rezonings (i.e., changes to the zoning “map”). The zoning map indicates the types of activities for which land can be used in a particular area. Council may also be the decider for various other land-use issues, such as approving subdivisions. But depending on the jurisdiction, many tasks are delegated to staff or volunteer boards.
Staff
Staff, such as a Planning Director, make many “administrative” decisions. These employees will decide cut-and-dried matters that don’t require policy determinations or interpretating subjective standards in the law. For instance, an ordinance may allow churches in a certain zoning district while imposing specific conditions ranging from the maximum height of the steeple to the number of parking spaces needed. Before issuing a permit for the church, staff will decide whether the conditions have been met. While staff’s powers may be limited, their influence may nonetheless be significant. Staff will often provide “recommendations” to Council or other boards with more decision-making power.
Planning Board
Council will appoint citizens to a Planning Board. The level of authority that the Board wields varies by jurisdiction. However, Planning Boards will often hold public hearings and vet proposals for ordinance changes, rezonings and major subdivision approvals before the proposals reach Council for final action. Again, even when a Planning Board is not the final decision-maker, the Board’s recommendation may carry significant weight. Notably, North Carolina law requires proposed changes to the zoning ordinance or the zoning map to be reviewed by a Planning Board. The Board must make findings about whether zoning changes are “consistent with” any comprehensive land-use plan adopted by the city.
Board of Adjustment
Like a Planning Board, the Board of Adjustment is a group of appointed citizens whose duties are often not well-understood by the public. However, Boards of Adjustment usually have very different duties from Planning Boards. The Board of Adjustment is typically a final decision-maker for certain issues that involve “quasi-judicial” proceedings. The Board conducts court-like hearings and weighs evidence to determine whether subjective standards have been met. It will decide issues like whether to grant a “variance” (a special exception to a land-use rule) or a “special use permit” (a permit to undertake an activity in a zoning district that is sometimes but not always allowed, depending on the circumstances).
Historic Preservation Commission
In cities with historic districts, a Historic Preservation Commission may also perform a variety of duties related to historic properties. The Commission will typically consist of appointees with specialized knowledge about historic districts – such as architects or historians. While many of the Commission’s duties may be merely advisory, the Commission can be the final decision-maker on whether to grant a “certificate of appropriateness” required to alter a historic property.
Appearance Commission
Some cities also appoint an Appearance Commission, which is typically comprised of citizens with special expertise in design, landscaping, horticulture or related fields. While the power of this Commission is usually very limited, the Commission may play important roles on issues such as vetting the aesthetic suitability of public buildings or revising ordinances to enhance the appearance of the city.
When advocating for (or against) a municipal land-use proposal, always investigate the decision-making process. This process should be outlined in the city’s development ordinance. City staff may be useful in explaining the process to a lay person; however, hiring an attorney with experience in representing parties before municipal boards can be a worthwhile investment to obtain your desired outcome.
Elliot Fus has served as town attorney for several North Carolina municipalities and has represented private parties in land use matters. He is a member of the N.C. Association of Municipal Attorneys and leads the firm’s Litigation Practice Group.