December 2011
Charlotte Metro Land Use Newsletter
Practice Group(s):
From the Editors
Real Estate Land Use,
Planning and Zoning
The K&L Gates Charlotte Metro Land Use Newsletter aims to provide timely news and analysis of
regulatory and legislative events affecting Charlotte’s real estate development community. We hope
you find this newsletter helpful. If you have any questions regarding any of the matters addressed in
this newsletter, or if we can be of service to you in connection with any real estate-or land use-related
challenge, please contact us. (email bill.brian@klgates.com or collin.brown@klgates.com)
In this Issue
• Mayor Foxx Answers Questions About Transit and Development Planning
• Charlotte’s Residential Design Guidelines Scaled Back
• Permit Extension Period Coming to an End in Select Jurisdictions
• Court of Appeals Clarifies Important Rule Regarding Changes to Non-Conforming Uses
Mayor Foxx Answers Questions About Transit and Development Planning
By Mack A. Paul, IV, Craigie D. Sanders, and James L. Joyce
We recently had the opportunity to ask Mayor Anthony Foxx about the City of Charlotte’s planning
and development goals over the next few years. In particular, the Mayor responded to questions about
the City’s approach to transit and transit-oriented development, as well as the City’s main planning
priority for the next two to five years.
Transit and transit-oriented development remain a priority for the City, although the principal
challenge has changed from justifying transit to funding the 2035 System Plan, which includes light
rail, bus rapid transit, local and enhanced buses, and streetcar service.
The City’s Centers,Corridors and Wedges Growth Framework, adopted in August of 2010, is closely
linked to transit. This framework, which provides the overarching growth policy for Charlotte,
focuses much of the City’s future moderate to higher intensity mixed use development in five major
Growth Corridors and in designated Activity Centers, especially Transit Station Areas.
For areas around transit stations, the City Council continues to be guided by the Transit Station Area
Principles adopted in November 2001. These principles provide direction for developing and
redeveloping properties around rapid transit stations. The Transit Station Area Principles focus on
high-density, pedestrian-oriented and transit-oriented development. This includes using transitoriented-development (“TOD”) zoning districts with minimum, rather than maximum, densities.
High-density development is targeted for the area within ½-mile of transit station areas, with the
highest densities within a ¼-mile walk of the station area. These principles are then executed through
Station Area Plans with parcel-specific land use recommendations. However, the TOD districts and
station area plans only apply to the light rail lines, and will not apply to streetcar stops. Nevertheless,
Charlotte Metro Land Use Newsletter
some of the corridors have adopted Pedscape Plans that are designed to blend in with adjacent low
density single family neighborhoods.
The most important planning initiative that the Mayor’s office feels that it needs to work on over the
next two to five years is updating the zoning and subdivision ordinances to be more in line with the
Centers,Corridors and Wedges Growth Framework. While the Centers,Corridors and Wedges
Growth Framework encourages more compact, mixed use development, current regulations promote
more single use, low density, suburban development. The Mayor feels that the City does not have the
necessary regulatory tools to implement and achieve the City’s vision for a more compact, high
density, mixed use future in appropriate areas. However, the Mayor’s office recognizes that updating
the zoning and subdivision ordinances will be extremely contentious from a citizen input perspective
and require a significant amount of staff resources and time.
Charlotte’s Residential Design Guidelines Scaled Back
By Collin W. Brown and James L. Joyce
Following several years of controversial discussion and debate, the final stakeholder meeting to
discuss Charlotte’s proposed Residential Design Guidelines was held on June 15.
In a somewhat surprising turn of events, Planning Department Staff recommended a dialed down
version of the Residential Design Guidelines that did not contain provisions aimed at regulating blank
walls or garage design. This change was made in light of the progress of legislation (Senate Bill 731)
in the General Assembly that would limit the ability of local governments to regulate the design of
single-family homes. As it happens, those provisions were the most controversial, and many believe
that they would have had negative impacts on housing affordability. For the most part, the revised
provisions recommended by Planning Department Staff provide additional flexibility and may reduce
development costs while also allowing infill developments to be built in a way that is consistent with
the character of existing neighborhoods.
Ironically, after passing the Senate, Senate Bill 731 stalled in the Commerce Committee of the House.
Nevertheless, there is clearly support for the legislation, and the bill could still become law during
next year’s General Assembly Short Session. Mayor Foxx’s office, in responding to the questions we
posed to him about upcoming planning goals, referred to these provisions as “on hold pending Senate
Bill #731.” This would seem to suggest that it is possible that the more controversial provisions of
Charlotte’s Residential Design Guidelines could potentially be re-introduced if Senate Bill 731
ultimately fails. As a consequence, it is important to ensure that your voice is heard on this bill before
the Short Session begins next year.
Permit Extension Period Coming to an End in Select Jurisdictions
By R. Michael Birch, Jr.
The General Assembly enacted the Permit Extension Act in 2009, suspending the running of any valid
state or local government land development permit from January 1, 2008 until December 31, 2011.
During the 2010 legislative session, the General Assembly extended the tolling period to December
31, 2012, but gave local governments the ability to opt out of this additional year. As we noted late
last year, the vast majority of local governments in the Charlotte metro area did not opt out. Now that
we are entering the final quarter of 2011, only a few months are left in the tolling period for land
2
Charlotte Metro Land Use Newsletter
development permits issued by state agencies and local governments that chose to opt out of the
additional extension.
In addition to the state Permit Extension Act, many local governments amended their ordinances to
provide permit holders with the ability to seek additional extensions of time to begin work. Permit
holders should be aware of any additional extensions offered by the local government and of the time
remaining for any valid entitlement. Many local governments compiled spreadsheets of valid permits
and noted the extended sunset date, so this information should be available from the local government.
Also, K&L Gates has worked with local government officials to ascertain the correct extension date
and obtain confirmation in writing from the local government.
Court of Appeals Clarifies Important Rule Regarding Changes to Non-Conforming
Uses
By Collin W. Brown
One of the most interesting land use cases of the past year, Land v. Village of Wesley Chapel, __ N.C.
App. __, 697 S.E.2d 458 (Aug. 3, 2010), originated in the Village of Wesley Chapel (the “Village”) in
Union County. Dr. Land, an apparent outdoorsman and shooting enthusiast, purchased several acres
of land in what was then rural Union County in 1991 and built a shooting range. Several years after
Dr. Land purchased his property, the Village was incorporated, and he voluntarily annexed his
property into the Village.
Predictably, as residential development blossomed, friction developed between Dr. Land and some of
his new neighbors. Eventually, and likely in response concerns from residents, the Village’s zoning
administrator issued a cease and desist letter to Dr. Land, indicating that use of the property as a
shooting range was prohibited because the shooting range was not conforming to the Village’s land
use ordinance, and Dr. Land had made a “material alteration” to the range, which made it no longer
permissible to continue the range as a non-conforming use. Dr. Land appealed to the Village’s Board
of Adjustment, which upheld the zoning administrator’s determination, but that decision was
overturned by the Superior Court. On appeal, the North Carolina Court of Appeals upheld the trial
court’s decision.
Although the facts of the case are entertaining, the most significant aspect of the opinion stems from
the court’s decision on the issue of “material alteration,” which could have broad ramifications for
property owners and local governments. Under the Village’s land use ordinance (and many others
around the state), a landowner may continue a use that precedes, but does not conform to the current
land use regulations, unless the use is materially altered.
Here, the Village’s land use ordinance defined “material alterations” as those that amounted to more
than 50% of the replacement cost, although it did not define how “replacement cost” was to be
calculated. Although the Village had interpreted that provision of its ordinance to mean 50% of the
cost of replacing the improvements only, the Court of Appeals held that the “replacement cost” of the
shooting range must include not only the attachments to the land, but also the properly measured value
of a substitute parcel of real property to which a new range could be attached. This raised the bar for
what constituted a “material alteration” from what the zoning administrator termed “negligible
replacement value” to $146,000.
This calculation of “replacement cost” in the “material alteration” context provides much more
flexibility for those seeking to invest in improving a nonconforming use or structure in situations
where local ordinances do not specify how “replacement cost” is calculated. By opining that, absent
3
Charlotte Metro Land Use Newsletter
specific ordinance language, the cost of the underlying land should be included in the calculation of
replacement cost, the court’s opinion may allow owners to make greater investments in
nonconforming uses or structures without the risk of losing their legal status.
4