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Popular Government Spring 1993
<br />Notes
<br />34
<br />http://ncinfo.iog.unc.edu/plannin�/pgsp93.htm
<br />1. A more detailed discussion of the legal issues addressed in this article can be found in the author's
<br />forthcoming Institute of Government publication, Legislative Zoning Decisions: Legal Aspects. The
<br />book will be available in summer 1993.
<br />2. In many respects this distinction is similar to the distinction between rule-making decisions and
<br />contested case decisions under the state's Administrative Procedures Act, G.S. Ch. 150B.
<br />3. The open meetings statute does apply to these meetings and should be observed. See G.S. 143-318.9
<br />to -318.18. Where a majority of the members of a board, council, or committee gather to conduct
<br />business or to deliberate, notice of the meeting must be provided and it generally must be open to the
<br />public.
<br />4. The statutes that mandate hearings, G.S. 153A-323 and 160A-364, explicitly refer to adoption and
<br />amendment of zoning ordinances. The court has held that this also includes repeal of zoning provisions.
<br />Sofran Corp. v. City of Greensboro, 327 N.C. 125, 393 S.E.2d 767 (1990); Orange County v. Heath, 278
<br />N.C. 688,180S.E.2d 810(1971).
<br />5. Keiger v. Board of Adjustment, 281 N.C. 715, 190 S.E.2d 175 (1972). See G.S. 153A-344 and G.S.
<br />160A-387.
<br />6. Johnson v. Town of Longview, 37 N.C. App. 61, 245 S.E.2d 516, rev. denied, 295 N.C. 550, 248
<br />S.E.2d 727 (1978). The county zoning statute does require a mandatory referral of a proposed zoning
<br />amendment to the planning board, but it is not required to hold a hearing. A number of zoning
<br />ordinances, however, still require planning board hearings; others provide for joint planning board and
<br />governing board hearings on rezoning proposals. If the zoning ordinance itself requires a formal
<br />planning board hearing, it must be held and should generally follow these rules for a legislative hearing.
<br />7. Helms v. City of Charlotte, 255 N.C. 647, 122 S.E.2d 817 (1961); Walker v. Town of Elkin, 254 N.C.
<br />85, 118 S.E.2d I (1960); Capps v. City of Raleigh, 35 N.C. App. 290, 241 S.E.2d 527 (1978). These
<br />cases held that actual personal notice of a proposed rezoning is not constitutionally required nor is it
<br />sufficient to substitute for compliance with-statutory requirements.
<br />8. Capps, 35 N.C. App. at 290,241 S.E.2d at 527.
<br />9. Though not explicitly required by the statute, a copy of the full text of the proposed ordinance or
<br />amendment should be available for public inspection at the time the notice is published.
<br />10. Sellers v. City of Asheville, 33 N.C. App. 544, 549, 236 S.E.2d 283, 286 (1977). By contrast, in In
<br />re Raynor, 94 N.C. App. 91, 379 S.E.2d 884, rev. denied, 325 N.C. 546, 385 S.E.2d 495 (1989), the
<br />court upheld the adequacy of a notice that stated its purpose was "to consider proposed zoning and
<br />proposed long-range land use plans within the area recently added to the Town's extraterritorial
<br />jurisdiction." The notice went onto provide a "rough description" of the area affected, using major
<br />streets as boundaries.
<br />11. The legislature has also extended this mailed-notice requirement to'some land -use regulations other
<br />than zoning. G.S. 143-214.5(d) requires cities and counties that adopt water-supply watershed protection
<br />ordinances under their general police powers to use the mailed-notice provision if the ordinance imposes
<br />requirements quirements more stringent than the statewide minimum standards adopted by the Environmental
<br />Management Commission.
<br />12. Frizzelle v. Harnett County, 106 N.C. App. 234, 416 S.E.2d 421, rev. denied, 332 N.C. 147, 419
<br />S.E.2d 571 (1992). In this case, however, the ordinance itself required mailed-notice and posting, which
<br />was not done.
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