Land Development Review

Land Development Review in North Carolina
September 15, 2006

     Subdivision Plan & Plat Approvals
     Zoning Approval
     Floodways

Subdivision Plan & Plat Approvals

North Carolina statutory law provides that counties (and towns and cities) shall have the authority to regulate the subdivision of land within their respective territories. See G.S. 153A-330 with respect to counties and G.S. 160A-371 with respect to towns and cities. Each local jurisdiction may thereby adopt a subdivision ordinance to provide for (1) the orderly growth and development of the county, (2) the coordination of transportation networks and utilities, (3) reservation of recreation areas, utility easements and streets and (4) the distribution of population and traffic to avoid congestion and overcrowding and to promote public health, safety and welfare.

In order to enforce this subdivision ordinance, counties are empowered to require that a plat be approved and recorded whenever any subdivision of land takes place. However, this platting process is often not a public process but an administrative review with no notice to adjoining property owners or to the public. Sometimes, however, the plat must be approved by a vote of the local governing board with notice to the public.

The platting process is typically accomplished in 3 steps. First, a preliminary sketch plan is usually submitted to the local planning staff in order to communicate the general layout plan envisioned by the developer. This sketch plan is very informal and non-binding (a ‘napkin sketch’). Often the developer can meet with one or a few key regulators in order to get an initial understanding of the nature of the regulatory issues that will be involved. The more detailed the sketch plan, the better the feedback will be to the developer early in the process.

Second, a preliminary plat, sometimes called a preliminary subdivision plan, is prepared by a civil engineer and/or a registered landscape architect and/or a professional land surveyor. This subdivision plan shows the proposed overall layout, including notes indicating adherence to general zoning standards. However, this plan also shows specific details of required street design, sidewalk design, storm drainage design, grading design, erosion control measures, traffic patterns, buffers, tree save areas, floodway control measures, right-of-way widenings, etc. This process is usually the lengthiest approval step, because all the details are scrutinized by various departments of the county staff in order to assure that the proposed development will meet the local standards. Typically, the point of contact for this process is the local Planning Department. Once approved, this ‘preliminary subdivision plan’ becomes the ‘subdivision plan’, and grading and construction activities may begin.

The third and final step is the Subdivision Plat, prepared by a professional land surveyor. The purpose of this plat is to legally subdivide the land into individual lots for the purpose of sale, building development or street dedication. Again, this plat is subject to detailed review by various departments of the county, in order to assure that the plat meets local standards and to assure that the plat reflects the requirements established by the approved subdivision plan. Therefore, this step can also be somewhat time-consuming. The point of contact for this step is usually the local Planning Department or Engineering Department. Upon approval by the local authority, this plat can then be recorded in order for the developer to begin lot sales and pull building permits for individual lots. Sometimes the Planning Department staff records the plat, and sometimes the developer’s surveyor records the plat.

The local Town or City typically withholds plat approval until the infrastructure specified in the Subdivision Plan is completed, inspected and approved by the local inspector. However, the local ordinance may provide that the plat be released for recording if the developer posts a bond or letter of credit in order to secure the public that all the required infrastructure is built in the event that the developer fails to complete the storm drainage, roadways, sidewalks, etc. Because of the time required for construction and inspection, bonding occurs frequently in order to expedite the initial lot or condominium unit sales. Beware that this bonding process can frequently be more time-consuming than expected. Most municipalities also have a bond approval process, which can sometimes take a few weeks.

Definition of Subdivision

“Subdivision” as defined in state law means all divisions of a tract or parcel of land into two or more lots, building sites, or other divisions when any one or more of those divisions are created for the purpose of sale or building development (whether immediate or future). This definition includes all division of land involving the dedication of a new street or a change in existing streets. However, state law provides that at least four scenarios are not included within this definition and therefore are not subject to any subdivision regulations:

The combination or recombination of portions of previously subdivided and recorded lots, if the total number of lots is not increased and the resultant lots are equal to or exceed the standards of the county subdivision ordinance.
The division of land into parcels greater than 10 acres if no street right-of-way dedication is involved.
The public acquisition by purchase of strips of land for widening or opening streets or for public transportation system corridors.
The division of a tract in single ownership the entire area of which is no greater than 2 acres into not more than three lots, if no street right-of-way dedication is involved and if the resultant lots are equal to or exceed the standards of the county.

Some local ordinances have more relaxed exemption provisions. Therefore, certain very specific and limited transactions can be accomplished by landowners without having to comply with the provisions of the local subdivision ordinance.

Subdivision ordinances may also provide for Minor Subdivisions or Limited Subdivisions. Minor Subdivisions are exempted from the Subdivision Plan review step on the basis that the new lots front existing roadways that meet current street standards and that no new storm drainage or flood measures are required. Limited Subdivisions are exempted from meeting the standards of the ordinance, on the grounds that a large remnant of the original base parcel will remain undeveloped. In Limited Subdivisions only the developing parcels must meet the requirements of the ordinance.

Zoning Approval

North Carolina statutory law provides that counties (and cities and towns) shall have the authority to adopt zoning and development regulation ordinances. These ordinances may take the form of a zoning ordinance or a unified development ordinance. See G.S. 153A-340. In order to promote health, safety and the general welfare local governments may regulate and restrict (1) the height and size of buildings and other structures, (2) the percentage of lots that may be occupied, (3) the size of yards, courts and other open spaces, (4) the density of population and (5) the location and use of buildings, structures and land. In accordance with a comprehensive plan the ordinance may address, among other things, the following public purposes: (1) to provide adequate light and air, (2) to prevent the overcrowding of land, (3) to avoid undue concentration of population, (4) to lessen congestion in the streets, (5) to secure safety from fire, panic and dangers and (6) to facilitate transportation, water, sewerage, schools, parks and other public requirements. The ordinance may provide for density credits or severable development rights for dedicated rights-of-way. The ordinance may NOT affect property used only for farm purposes except for certain large swine farms.
Typically, a Board of Adjustment is empowered to determine and vary the application of the ordinance in harmony with their general purpose and intent. The Board of Adjustment is also empowered to interpret zoning maps and pass upon disputed questions of lot lines in the administration of the ordinance. These purposes are accomplished through hearings of (1) appeals from any order, requirement or determination made by the local Zoning Staff and (2) variance requests to provide relief from the provisions of the ordinance due to practical difficulties or unnecessary hardships resulting from the strict letter of the ordinance. In granting these variances the Board of Adjustment is bound to preserve the spirit of the ordinance and to secure public safety and welfare. However, no change in uses may be authorized by variances.

The Board of Adjustment or the Planning Board or the governing Board or Council may be empowered to issue special use permits or conditional use permits in classes of situations in accordance with the principles and conditions defined in the ordinance. For example, these conditions may include requirements that street and utility rights-of-way be dedicated to the public and that recreational space be provided.

Counties may adopt temporary moratoria on development requiring approval by the government staff. Any moratoria must be reasonable in light of specific conditions and may not exceed the period of time necessary to correct or resolve such conditions through clear actions by the governing entity.

A zoning ordinance divides land uses into use districts typically related to single-family and multi-family residential, institutional, office, commercial business, industrial and mixed uses. In addition, a zoning ordinance can designate certain overlay districts, which are applied in conjunction with other zoning districts in order to grant additional use or development requirements within a specific area in order to accomplish specific public policy objectives. Examples of overlay districts are for historic, transit-oriented, airport, watershed and pedestrian purposes.

A zoning ordinance may allow for the establishment of conditional zoning districts, which place very specific development standards for uses which have particular impacts on the immediate area and the community as a whole. Usually these conditional districts affect specific neighborhoods or specific parcels and are subject to a specific site plan and other criteria enacted by a rezoning petition.

Zoning ordinances frequently provide for allowable uses, required building setback dimensions, road frontage or lot width minimums, landscape buffers, water quality buffers and parking requirements. Ordinances frequently provide for special requirements for certain specific uses such as accessory structures, child care centers, quarries, landfills, group homes, adult establishments and other uses of special impact to neighboring properties.

Zoning or related ordinances may provide for special regulations related to trees, water quality, utilities, signs, storm drainage, driveways, flood zones, street design and other land development standards.

Although zoning approvals are not always required until building permitting or sometimes until building occupancy, prudent developers should stay in contact with Zoning Staff regarding plans and designs from early in the planning process.

Floodways

In the 1960’s the U.S. Congress started the National Flood Insurance Program (NFIP) to provide property owners the opportunity to obtain insurance against flood damage and to promote responsible development practices within flood-prone areas. The Program establishes participation on an individual community level. Participating communities are provided the availability of flood insurance to individual property owners in exchange for the local government adopting ordinance requirements that protect public safety and property.

To participate in the Program a community must adopt these ordinance requirements that meet Federal Emergency Management Agency (“FEMA”) standards. In addition, the community must provide engineering studies and flood mapping of major creeks and other water bodies within that community. Major creeks are defined as creeks that serve drainage areas of 1 square mile or greater (that is, 640 acres). Note that creeks upstream of the 1 square mile drainage area point may also be subject to flooding, but these streams are not addressed by the federal Program. Some communities have additional regulations related to upstream flood areas through their subdivision ordinances or other local regulations.

FEMA standards focus on 2 zones: (1) the floodway encroachment area, the high-velocity flood zone within which flood waters move rapidly downstream, and (2) the flood fringe district, low-lying areas of pooling farther away from the creek which do not serve to move flood waters quickly downstream. Base flood elevation (BFE) means the calculated level of the water surface during a perfect 100-year flood event. A 100-year flood is defined as that flood which results from rainfall of such intensity that has a 1% chance of occurring in any year. Therefore, a 100-year flood may not have occurred within the last 100 years. Similarly, a 100-year flood may have occurred multiple times within recent years. Other flood intensities may be calculated, such as 500-year floods or 50-year floods, but the National Flood Insurance Program focuses almost entirely on the 100-year flood calculations.

Floodway Encroachment Area. Regulations should provide community protection restrictions within the floodway encroachment area. No new buildings or fill or other obstructions are allowed within this floodway encroachment area. The FEMA definition of the floodway encroachment area is usually that central portion of the overall flood zone that, if maintained free from new obstructions, will preclude the possibility of increasing flooding more than 0.5-foot of elevation in that vicinity. Therefore, if a tall retaining wall were placed along the creek just outside of the floodway encroachment area line, then the flow of floodwaters during a 100-year flood would be constricted such that the surface of the floodwaters would increase only to a level of 1/2-foot above the base flood elevation shown on the flood map. Note that an individual community may restrict development beyond the 0.5-foot floodway encroachment line, but variances and other matters outside the 0.5-foot line would be subject solely to local jurisdiction. Also note that the floodway is not intended for water quality purposes. Therefore, development may occur within this area so long as this development does not obstruct the flow of floodwaters during a 100-year flood event (e.g., driveways, surface parking, lakes, etc.). Development is subject to the approval of a floodplain development permit.
Flood Fringe District. The local flood regulations must also provide for individual protection within the flood fringe district. Buildings, fill dirt and other development activities may occur within this outer fringe area of the flood zone. However, local regulations must require that certain precautions be taken in the design of these buildings in order to protect the individual property owner from flood damage. Examples are (1) finished floor levels should be elevated at least 1-foot above the 100-year BFE, (2) mechanical and electrical equipment must be elevated above the BFE, (3) any foundations or structures built below the BFE must be protected by flood vents which allow flood waters to freely flow into and out of the areas inundated by a flood. The purpose of these flood vents is to prevent hydrostatic forces (that is, the weight of the floodwaters) from damaging the structural integrity of the building. Local regulations sometimes exceed these standards. Development is subject to the approval of a floodplain development permit.

Provided that local regulations address all these issues and provided that the local community maintains active participation in the Flood Insurance Program, individual property owners have the opportunity to obtain flood insurance against the risk of property damage resulting from any flooding. Structures built before or after the beginning of the local participation both have this opportunity, although premium rates will be higher for older structures built below 100-year levels. Federal standards require that any mortgages sold on the federal markets must have an active flood insurance policy if the primary structures are located within a designated 100-year flood fringe district as scaled from the community’s flood insurance rate map (FIRM). These 100-year flood fringe districts appear as “A Zones” on the FIRM, and areas outside the 100-year risk appear as “X Zones” or “C Zones” on the FIRM.

With regard to coastal development, FEMA recognizes “V Zones”, that is, areas subject to inundation by high-velocity storm tides. Building within these areas deserve special attention due to the catastrophic potential of the storm surge of hurricanes and other ocean storms along North Carolina’s Atlantic coastline. Within V Zones not only the finished floor but also the structural floor joists and other structural members must be built a certain amount above the base flood elevation. All building enclosures below the BFE must be constructed using breakaway walls in order that the structure not wash away during a storm tide. In addition to understanding flood zones, the developer and design team should become thoroughly familiar with Coastal Area Management Act guidelines set by the State of North Carolina. These guidelines address development along the unstable and fragile coastal, sound and tidewater areas of our coast.

If a developer changes the natural grades within a new development or if the property owner becomes aware that the graphic depiction of the flood zone is incorrect on the FIRM, then FEMA provides a process by which changes can be made to the flood map. These would include a Letter of Map Revision (LOMR) for manmade changes to natural grades and a Letter of Map Amendment (LOMA) for errors on the original flood map. Either a LOMR or a LOMA would remove the flood insurance requirement for future owners. Please note that flood insurance is always available within participating communities regardless of whether it is required. Therefore, owners who have obtained a LOMR or LOMA may obtain flood insurance if they wish. Similarly owners whose property is located outside flood zones may obtain flood insurance as well.

One final note is that the risk of flooding increases with additional development, particularly upstream development. Therefore, flood zones are periodically updated and FIRM are periodically revised. Properties that were not located within a flood fringe district on a previous FIRM may be identified as being located within a flood fringe district on a new FIRM (necessitating new flood insurance requirements). Structures that were not located within the floodway encroachment area may be changed to be located within a floodway encroachment area on a new FIRM (preventing future building additions).

The local flood administrator should be consulted with regard to local requirements. Stay in touch with regulators from the earliest point in the design process and through the development and building phases of your projects. Do not make the mistake of waiting until issuance of a Certificate of Occupancy to recognize that a new building is constructed too low to meet flood regulations!