AG 1997 05 19 - Laserfiche WebLink

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ABOUT MORATORIA [Sources: "Land Use and Development Moratoria" by David Owens, Popular Government Fall 1990. Conversations with David Owens, faculty at the Institute of Government, 4/97.] A local government's authority in most land use matters comes from the zoning enabling act or from general police powers to protect the health, safety and general welfare of its citizens. There are no specific statutes that address moratoria, but it is likely that the North Carolina courts will agree that cities or counties have the authority to adopt "reasonably limited development moratoria." It is important for the local government to specify whether it is relying on general police power or the zoning enabling act as its statutory basis for imposing a moratorium. We recommend using general police powers so we have advertised a public hearing. It is also wise to follow standard zoning procedures to protect the local government from challenges based on failure to use due process, and the public hearing also adheres to this requirement. A Moratorium must (1) be based on a clearly documented need, and (2) have a limited duration that is based on the time it takes to address the reasons for its imposition. It should address all the land uses that generated the need for the moratorium, but no others. In other words, a moratorium ordinance should be as specific and limited as possible with regards to its cause, duration, geographic coverage and subject matter coverage. MORATORIA OPTIONS According to David Owens, a long moratorium on building permits (e.g. one year) based on school capacity and funding is probably not reasonable. A moratorium of 60 to 90 days, however, may be justified. Although David Owens did not speak to this directly, a moratorium on the approval of new development may be of longer duration and would not be subject to vested rights clause. If a project has been approved, a building permit has been granted, or substantial investment has been made in good faith reliance upon government approval, the project can generally be completed as approved. The Cabarrus County Zoning Ordinance establishes vested rights on any property for two years, upon the valid or conditional approval of a site specific or phased development plan, following notice and public hearing by the Planning and Zoning Commission (Section 1-8). The landowner has the right to undertake and complete the development and use of the property for a period of two years. That section is based on G.S. 153A - 344.1 which is attached. In addition, there is substantial case law that good faith reliance of government approval and