ORD-2007-002 - Amendment to the Flood Damage Prevention Ordinance

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12/12/2006 TUS 16:45 FAS ®Q16/021 .. , 12 Page 5 of 8 (2002). The General Assembly~as delegated the legislative act of adopting and amending inning regulations to municipalities; Zoning is a legislative act and only the legislative body of a municipality is authorized to adopt and amend zoning or+d'mances. Only a law making body can adopt and amend a zoning ordinance. Lee.v. Board of Adjustment. 226 N.C.107, 37 S.E.2d 128 (1946); Bryan v. Wilson. 259 N.C. 107, i30 S.E.2d 6$ (1963); ~ppiication.of Rea Constr. Co., 272 N.C. 715, 1.58 S.e.2d 887 (i968). The power of a municipality (cities, towns, and counties) to enact zoning ordinances has .been expressly granted by statute. The authorityrto adopt, repeal, and amend zoning regulations is contained in the "arabling act" that is found in the North Carolina General Statutes. -The state law for adopting zoning ordinances and amendments for cities is found at N.C. Gen.. Slat. Section 160A-381 et seq. and for counties is found at 153A-320 eK seq. State law provides that the city . councilor the board of county commissioners provide notice to certain landowners. N.C.G.S. § 160A-384 outlines spexific procedures .for adopting zoning ordinances and amendments for - cities and towns. See N.C.G.S. §l b0A-384 attached. State law provides first for cities and towns "zoning regulations and restrictions and zone boundaries may .. , be amemied, supplenncnied, -. changed, anodifiexl or repealed." If there is a protest against the change, "an amendmart shall not lxecome effective except by favorable vote afthree-fourths of all the members of the city council." N.GG.S. §ibOA-385. SeeN.C.G.S. §160A-385 attached. The state la~ar for adopting zoning ordinances and amendments for counties-is found ai N.C.G.S. § 153A-340. Sere N.C_G.S_ §153A-340 attached: N.GG.S. §I53A-343 and §153A-344 outline.specific procedures for adopting zoning ordinances and amendments for counties. See N.C.G.S. §153A 343 and § ! 53A- 344 attached. Zoning or a change in zoning is a legislative act. Regarding counties' authority to amard zoning ordinances,~the court in Alderman v Chatham County ~ $9 N.C: App. 610, 366 S.E.2d 885 (1988), states "N.C.G.S. 153A-344 expressly gives counties the power to amend their zo~ring - . ordinances. As a legislative function„ the courit}~s act of amending its zoning ordinance is entitled .to a presumption of validity." S-p Associates V. City of Raleigh, 298 N.C. 207; 258 S.E.2d 444 (1979). The legislative act of enacting or amending a zoning ordinance is invalid if it is utu~easonable, arbitrary, or an unequal exercise of legislative power." A county's legislative body has authority~to rezone when reasonably necessary to do so in the interests of the public health, safety, moxals or general welfare. Ordinarily the only limitation upon this authority is that it may not be exercised arbitrarily or. capriciously.. Willis v. Union County 77 N.G. App: 407, 335 S.E.2d 76 (1985). N.C.G.S.153A-340 contains the legislative grant of power to counties to enact zoning ardit-ances. Development Associates. Inc. V. Tht: Wake County Board of Adjustment. 48 N.C. App. 541, 269 S.E.2d 700 (1980). .